Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law最新文献

{"title":"Constitutionalization of criminal law: the problem of defining the object and subject of the legal process","authors":"O. Guzeeva","doi":"10.17223/22253513/43/4","DOIUrl":"https://doi.org/10.17223/22253513/43/4","url":null,"abstract":"The constitutionalization of criminal law is a complex and multi-level process of translating constitutional ideas and values into criminal law and the practice of its application. This is a controlled and directed process, which, from the point of view of its structural and functional analysis, presupposes the presence of a well-defined object of influence and subjects of constitutionalization. The object-subject characteristic of the constitutionalization of criminal law in branch science has not been studied. In the article, the author solves this urgent problem based on the application of a systematic approach within the framework of the implementation of the requirements of structural and functional analysis. The constitutionalization of criminal law is understood in this work as a process of substantive concretization of constitutional principles and standards in the practice of criminal law regulation. Proceeding from the fact that such regulation is an organic unity of the law and the practice of its application, the author, nevertheless, argues that the phenomenon of criminal law practice itself, as an element of the object of constitutionalization of criminal law, should be limited, excluding from its scope institutional and procedural characteristics of the practice, and leaving only its results in the form of the content, interpretation and meaning of the criminal law norms created by the parliament and applied by the court in a particular case. As a result, it is concluded that the object of constitutionalization in criminal law is precisely the criminal law norms expressed in the sources of law, which are given a particular interpretation in the process of law enforcement. When analyzing the subjects of the constitutionalization of criminal law, there is widespread opinion in science that this is exclusively the Constitutional Court of Russia is critically assessed. It is proved that, in addition to it, the subjects of constitutionalization are: parliament and courts of general jurisdiction. This made it possible to classify the subjects of constitutionalization, depending on the moment at which criminal regulation they are connected to ensure its constitutionality. “Primary” subjects of constitutionalization (parliament and court of general jurisdiction) carry out perspective constitutionalization, using constitutional principles and norms to regulate public relations, creating and applying criminal law norms. The Constitutional Court of the Russian Federation is empowered to carry out retrospective constitutionalization of the already declared legal matter through constitutional justice, which makes it possible to recognize it as a \"secondary\" subject of the constitutionalization of criminal law. The author declares no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"61 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87444192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Transformation of summary procedure in civil and arbitration proceedings into an ordinary procedure","authors":"N. G. Galkovskaya","doi":"10.17223/22253513/45/11","DOIUrl":"https://doi.org/10.17223/22253513/45/11","url":null,"abstract":"The author conducted a detailed analysis of the mechanism of transition from summary procedure to litigation or administrative proceedings in civil and arbitration trials and revealed the features and problems of its legal regulation. The provisions of Chapter 21.1 of the Civil Procedure Code of the Russian Federation and Chapter 29 of the Arbitration Procedure Code of the Russian Federation were studied, and the explanations contained in the Resolution of the Supreme Court Plenum dated April 18, 2017 No. 10 were taken into account. Official statistics were used to track the effectiveness of the use of summary procedure and the institution of transition to a standard procedure for trying cases. With the help of rich empirical material, the problems that arise when solving the question of the transformation of the procedural order are revealed. The methodological basis of this study was made up of general and special methods of scientific research (historical, comparative law, method of dialectical cognition, formal-logical method of interpretation of law and the method of system analysis). The author studies some special rules that regulate the procedural transition from summary to general procedure in trials. For a more in-depth analysis, the grounds for the transition are divided into two groups: mandatory and optional. A not limiting list of mandatory grounds was revealed, it was proposed to supplement it. Optional grounds are critically analyzed. It has been established that the initiator of the transformation of the procedural form can be either the court or the parties. However, the procedural legislation does not provide for the mandatory transition to the general rules for the consideration of the case at the request of the party. Moreover, the procedural transformation of the order of trial cannot be arbitrary, regardless of the party which starts it. The author concludes that the dependence of the decision on the transition from a summary procedure to an ordinary one on the discretion of the court should not be an obstacle for the parties to a trial when they protect their rights. But, the transition to trying the case according to general rules should not worsen the position of the parties. Attention is drawn to several problems involving the third parties in summary procedure, as well as to the decision to accept a counterclaim for joint consideration with the original, the ways to solve them being proposed. The problems of legal regulation identified in the course of the study may serve as a vector for further improving the mechanism for the procedural transformation of summary proceedings into an ordinary procedure. The author declares no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"32 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77708470","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Problems of realization of the right to remuneration for work","authors":"V. A. Protsevskiy, Yevhenii Horlov","doi":"10.17223/22253513/47/14","DOIUrl":"https://doi.org/10.17223/22253513/47/14","url":null,"abstract":"In accordance with the right to remuneration for work, the problems of legal regulation of wages in Russia are analyzed. The relevance of the study of this problem is explained by the insufficient effectiveness of incentives that, in conditions of the spread of mainly intellectual, informational work, will encourage a certain professional group to perform its characteristic labor functions with the highest efficiency to increase public welfare. The goal of solidary participation in the fair distribution of labor results, as well as in its payment, is determined by the direction of development of the state that it elects. The highest social value in the Russian Federation is a person, his life and health, honor and dignity, inviolability and security. The so-called labor theory of value, expressed by A. Smith, developed by D. Ricardo and K. Marx, according to which the value of goods and services depends on the labor invested in them, has been studied. This idea was transformed by E. Durkheim into the characteristics of an employment contract, indicating that it is only considered concluded when the mutual services of the parties have an equivalent value. It is the employment contract, according to the authors, that acts as the main legal form of realization of the constitutional right to work and its remuneration. The state and contractual regulation of labor, the ratio of public and private methods of regulation in the field of remuneration are considered. Attention is paid to the problem of further improvement of the financial situation of the employee on the basis of social partnership. The Universal Declaration of Human Rights, ILO Conventions, standards in the field of remuneration are analyzed. The authors emphasize that remuneration needs state regulatory and legal regulation, first of all, in the revision of existing standards of remuneration. The progressive experience of legal regulation of remuneration for work in national and international legislation is investigated. Modern science considers one of the determining factors of the well-being of society to be the ability of the distribution mechanism to approach the correspondence between a person's contribution to the increase of well-being and his remuneration. In order to solve the problem posed in this study, the authors propose the need for a harmonious combination of innovative reform and the introduction of elements of world models of various employee remuneration systems, which will ensure the adaptation of domestic labor legislation and the achievement of modern world standards in the legal regulation of remuneration for work.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"39 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91340766","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The legal nature of acts containing explanatory legislation and possessing normative qualities","authors":"E. S. Yusubov, Yuriy V. Philimonov","doi":"10.17223/22253513/43/9","DOIUrl":"https://doi.org/10.17223/22253513/43/9","url":null,"abstract":"In the administrative legal proceeding there was fixed right to litigate acts of public authority, organizations and officials, containing explanations of legislation and possessing regulatory characteristics. Authorizing to litigate these acts, the legislator realized suggestions, made earlier by scientists, about legalization of a separate type of act along with legal and individual acts, namely acts, which fix the result of legal interpretation of legal norms. The legislator cannot make specified regulation of all variety of public relations, established absolutely precise norms, falling under all events of life. Thereby in real situations law-enforcer can have some problems in understanding of several norms, which reproduce conditions to indefinitely wide limits of judgment and optional realization, at the same time it can lead to violation of rights and legal interests of participants of these legal relations. Mentioned circumstances caused state-authorized necessity in fulfillment of integrated practice of law-enforcement activity by means of edition of law expository acts. While explaining legal norms, it is not allowed to change, to expand or to restrict to their semantic meaning. Law explanation enforces, expands possibility of legal regulation, but it doesn’t actually influence on public relations and that is why administrative law explanatory acts are not applicable to the category of legal sources (form of fixation of legal norms). Contribution of the authors: the authors contributed equally to this article. The authors declare no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"69 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87636842","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unnamed procedural actions in Russian civil proceedings","authors":"Andrey A. Alekseev","doi":"10.17223/22253513/45/9","DOIUrl":"https://doi.org/10.17223/22253513/45/9","url":null,"abstract":"The article formulates the content of the concept of \"unnamed procedural action\", as well as the conditions and limits of its application in modern civil proceedings in Russia. The complexity of understanding this phenomenon is due to the presence of a logical contradiction, which manifests itself in the following. On the one hand, the legislator considers permissible only those procedural actions, the list and order of which are legally fixed. On the other hand, the rapid development of public relations increasingly requires participants in the civil process to go beyond the prescriptions existing in the law. This state of affairs suggests that all procedural actions can be divided into two main groups. The first of them is the named procedural actions (procedural actions and the procedure for their commission are provided for in the law). The second is unnamed procedural actions (procedural actions and (or) the procedure for their commission are not provided for by law). We believe that unnamed procedural actions should be considered through the prism of such categories as \"legal conduct\", \"judicial discretion\" and \"unnamed legal action\", the latter of which has been studied in sufficient detail in the theory of civil law. Unnamed legal actions are also present in the theory of criminal procedure, but here they are usually referred to as \"other procedural actions\". In the theory of civil procedure, there is no mention of the term \"unnamed procedural actions\" or its analogues. There are no specified categories in the legislation. The conducted research allowed us to draw the following conclusions. All actions committed in the civil process, including those not named, can be considered as part of legal behavior, which is characterized by: 1) Normativity; 2) State control; 3) The presence of legal consequences. In relation to unnamed procedural actions, these signs, especially normativity, receive a slightly different, often broader, content. Nevertheless, if a number of conditions are met, the existence and possibility of their commission in modern civil proceedings is beyond doubt. Thus, we believe that an unnamed procedural action can be defined as a legally fixed or legally determined active behavior of participants in civil proceedings, implemented within the framework of initiated civil proceedings, entailing legal consequences and aimed at timely and correct consideration and resolution of a civil case. The author declares no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"39 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84994611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Defects in the implementation of the protection of rights violated in the information space","authors":"P. Portyanova","doi":"10.17223/22253513/47/13","DOIUrl":"https://doi.org/10.17223/22253513/47/13","url":null,"abstract":"The article is devoted to the identification and search for ways to resolve the discreteness of the law governing relations in the information space, and its implementation. System-structural analysis, the logical method made it possible to identify ways to resolve such discreteness. It can be overcome by using the analogy of law, which makes it possible to ensure the functioning of the legal system in the absence of the necessary norm-regulator. The elimination of discreteness involves making the necessary changes to the current legislation. As examples of the analyzed discreteness of law, defects in legislation and the implementation of the following rights in the information space are considered: the right to protect honor, dignity and business reputation and the right to be forgotten. In the first case, we are talking about the impossibility of initiating the restriction of access to the source in which the information recognized by the court as discrediting and unreliable was placed, if such a decision was made in the manner of a special proceeding. It is concluded that overcoming this defect is possible in two ways: the first is the application of the right to be forgotten, the second is the statement of the requirement to recognize the source that disseminated false defamatory information to be included in a single automated information system. It is concluded that overcoming a defect is a temporary and forced measure, and the ultimate goal of the legislator is to eliminate the defect. Two ways to eliminate the described defect are proposed. First: the introduction of mandatory registration of an information source, if we are talking about a resource on the Internet, then - its national domain, in domestic specialized systems. Second: elimination of the defect by amending article 152 of the Civil Code of the Russian Federation and clause 5 of article 15.1 of the Federal Law \"On Information, Information Technologies and Information Protection\". Namely, the inclusion in these articles of a new basis for restricting access to an information source: the entry into force of a judicial act issued in a special proceeding on recognizing the disseminated information as unreliable and discrediting. It was proposed to secure the right to refute widespread information if the court determines that the information gives the reader the impression that the circumstances described in the disputed material actually took place. The second considered defect in the implementation of the right is the lack of uniformity in the interpretation of the “public interest” and, as a result, the lack of uniformity in the practice of applying the right to be forgotten. It is proposed to legislatively formulate the definition of the criterion of \"public interest\" for the purposes of exercising the right to be forgotten in relation to irrelevant information and information that has lost its significance for the applicant.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"13 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88249993","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Problems of qualification of actions of accomplices in case of excess of perpetrator","authors":"T. Chernenko","doi":"10.17223/22253513/44/8","DOIUrl":"https://doi.org/10.17223/22253513/44/8","url":null,"abstract":"The article describes features of qualitative and quantitative excesses of the perpetrator. The article analyses problematic questions of qualification of excess of a perpetrator in complex complicity, when the accomplices perform legally different roles. It is noted that excess of perpetrator may be referred to when he commits a more serious crime than was agreed upon by accomplices on a preliminary agreement, and less serious crime. If the perpetrator commits a crime with aggravating circumstances which were not covered by the intention of other accomplices, the perpetrator is responsible for the crime with aggravating circumstances, organizer, instigator, accomplice - for complicity in a crime without aggravating circumstances. The author substantiates the conclusion that in a situation where the perpetrator, by deviating from the instigator's or organiser's intention, commits a less serious crime he should be charged with that crime. The instigator, on the other hand, should be charged with incitement to the offence with the qualifying characteristics that was covered by his intention, while the organiser should be charged with the activity of organising the offence with the qualifying characteristics. Within the framework of complex complicity it is difficult to qualify the actions of accomplices in such a form of quantitative excess, when the perpetrator commits a crime that is similar to the one intended by the accomplices, but of a different kind: for example, instead of theft he commits robbery. The article substantiates the conclusion that when qualifying it is necessary to use a legal fiction: the actions of accomplices should be qualified according to the direction of their intent: the perpetrator should be responsible for robbery, other accomplices - for complicity in a completed theft. Such classification of the crime emphasizes that complicity in the crime took place, but the perpetrator committed an excess for which the other accomplices are not responsible. The problems of qualification of the perpetrator's excess in the group commission of a crime involving several co-perpetrators who had previously agreed to commit a certain crime together were analysed. Consideration is given to the qualification of the offence in the case of \"unsuccessful accomplice\". Sometimes a person who has been induced to commit a particular crime commits, for whatever reason, a heterogeneous new crime instead of the agreed crime (in relation to the latter he does not even perform preparatory acts). The perpetrator who has committed the crime will be responsible for the de facto act (qualitative excess), while the actions of other persons for the crime committed by the perpetrator are excluded. The author justifies the conclusion that unsuccessful actions of other persons to organize or assist a crime should be qualified as preparation to a crime. It would be advisable to enshrine this provision in law, as has already been done in relation to failed \"inc","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"33 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83092288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International legal regulation of combating corruption in public administration of the Russian Federation","authors":"S. Starostin, Maksim M. Polyakov","doi":"10.17223/22253513/44/7","DOIUrl":"https://doi.org/10.17223/22253513/44/7","url":null,"abstract":"The article analyses the provisions of the main international legal instruments against corruption in relation to the system of public administration of the Russian Federation. The authors emphasise that corruption poses a threat to the entire international community. Corrupt practices destabilise the functioning of state apparatuses of different countries, undermine the national economies and make the stable process of development of social and state institutions impossible. These circumstances have led to the international adoption of a number of legal instruments: the International Code of Conduct for Public Officials (1996), the Criminal Law Convention on Corruption (1999), the Civil Law Convention on Corruption (1999), the United Nations Convention against Corruption (2003) and others. These legal instruments set out the most effective forms and methods of combating corruption, which the participating countries can apply in their national legal systems. However, there are certain controversial and debatable aspects related to the implementation of the provisions of certain international legal acts against corruption. For example, the Russian Federation has not ratified the 1999 Convention on Civil Liability for Corruption or Article 20 of the United Nations Convention against Corruption of 2003. The authors conclude that there is now a need to strengthen the activities of the relevant authorities and officials to achieve better results in the fight against corruption. Anti-corruption measures need to be more actively implemented and applied not only in public authorities, but also in state and non-state enterprises and institutions. At present, work in these areas is being carried out, but not always in a quick, qualitative, consistent and systematic manner. The implementation of anti-corruption forms and methods is simply impossible without international cooperation due to the fact that corruption itself has ceased to be a problem of individual states. With this in mind, it is essential for Russia to strive for the widest possible application of anticorruption international legal instruments within the domestic legal system. In the conclusion of the article, the authors emphasise that the Russian Federation is actively and dynamically participating in the international legal regulation of anticorruption. Cooperation in this area has reached an exceptionally high level, which is recognised by many foreign partners. Ultimately, the application of international legal anticorruption measures in Russia will improve the system for combating corruption in public administration. The provisions of international instruments accumulate solid experience of many countries in this area. This experience can and should be used in our country. The authors declare no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"39 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83481806","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Resocialization or correction of the convict?","authors":"V. Yuzhanin, Dmitry V. Gorban","doi":"10.17223/22253513/44/9","DOIUrl":"https://doi.org/10.17223/22253513/44/9","url":null,"abstract":"The presented scientific article puts forward and confirms the hypothesis that recently in the science of criminal executive law more and more attention is paid to the process of resocialization of convicts, rather than their correction. The au thors confirm this in their dissertation research (including in the social sciences). Also, this vector is reflected in the Concept of the development of the criminal executive system of Russia until 2020, which often operates with the concept of \"resocialization\" rather than the concept of \"correction\". The article also analyzes the legislation of some foreign countries, including the Commonwealth of Independent States, in the sphere of regulating the re-socialization of prisoners sentenced to imprisonment. The authors of the article give a comprehensive description of the process of resocialization, noting its advantage over correction, which can not cover the postpotential sphere. It is indicated that the goal of correction can be achieved, but if the former convict does not solve the issues of adaptation in society, this can lead to postpenitentiary relapse of crimes. That is why it is necessary to create a resocialization system for serving sentences that would guarantee that crimes will not recur. At the same time, attention is drawn to the creation of a progressive system of serving sentences with its gradual introduction of the convicted person to life in freedom. It is argued that the process of re-socialization should be considered from the standpoint of a broad criminological approach, which involves the use of a wide range of means of influencing the personality of the convicted person, including social, psychological, preventive and other, involving various actors in the process and combining their efforts. The author's components (tools) that structurally make up the resocialization of convicts as a system are proposed. In the conclusion of the scientific article, the authors conclude that the legislator should reconsider the attitude to the means of correction, consider them as part of the process of re-socialization, which should include other means, become the main process and go beyond the criminal law and criminal executive nature. The authors declare no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"59 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88151759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rejection of free evaluation of evidence on the example of «capital amnesty»: another blow to the publicity of the Russian criminal process","authors":"V. N. Grigoryev, P. O. Panfilov, Mikhail Yu. Terekhov","doi":"10.17223/22253513/44/5","DOIUrl":"https://doi.org/10.17223/22253513/44/5","url":null,"abstract":"The relevance of the work is caused by the socio-political demand to change the criminal procedural law, taking into account its focus on the creation of a favourable investment and business climate. At the same time, science has not convincingly justified the real reasons for changing the criminal procedural law in this direction, which leads to its chaotic changes, often inconsistent with the fundamental principles of criminal procedure, its purpose. The purpose of the work is to study the impact of legal norms ensuring the implementation of \"amnesty of capital\" on the free evaluation of evidence, as well as its ability to ensure the implementation of public interest of all members of society aimed at combating crime. The following set of research methods was used effectively. First, the dialectical method of knowledge - as a key method in the consideration of legal norms that ensure the implementation of \"amnesty of capital\" in relation to the general problems of criminal procedure. Secondly, the method of modelling - in the study of how the theory and law enforcement practice will be affected by the change in the criminal procedural form caused by the \"amnesty of capital\". Thirdly, the formal-legal method - in identifying the specifics of the construction of legal constructions in the rules of criminal procedure providing for \"amnesty of capital\". Fourthly, the historical-legal method - in the analysis of legal constructions and the practice of their application at different stages of historical development. Fifth, the statistical method - in the collection and analysis of statistical data relating to the research topic. The results of the study lead to the following conclusions. Firstly, the free assessment of evidence and the statutory rules of evidence collection, aimed at the development of inner conviction, are mutually supportive, resulting in the publicity of criminal proceedings. Secondly, legal rules ensuring the implementation of \"capital amnesty\" exclude the free assessment of evidence and introduce a formal approach to both its collection and assessment, which results in the loss of publicity of criminal proceedings. Thirdly, the reason for the rejection of free assessment of evidence is the legislator's mistrust of the officials of the preliminary investigation agencies and the court. The reasons for this distrust lie in the lack of proper motivation and reasonableness of their decisions. Fourthly, it is concluded that it is inadmissible to conceptually transform the criminal procedural law with economic interests, distrust of the court and officials of the preliminary investigation bodies. In this connection, it is proposed either to abandon the continuation of the \"capital amnesty\" or to no longer consider acts for which criminal responsibility is suspended as a crime, but rather as administrative offences or criminal misdemeanours. The authors declare no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"26 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89150975","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}