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

{"title":"Countering illegal trafficking of archaeological objects in the Russian Federation: Problems of legal regulation and law enforcement","authors":"Anatoliy N. Panfilov","doi":"10.17223/22253513/47/12","DOIUrl":"https://doi.org/10.17223/22253513/47/12","url":null,"abstract":"To date, extensive judicial practice in cases of administrative offenses qualified under Article 7.15.1 of the Administrative Code of the Russian Federation cannot be called unambiguous. It has exposed a number of fundamental problems that need to be resolved. 1. The problem of identification by a specialist or expert of things seized from a person suspected of making a transaction with archaeological objects. The relevance of this problem arises from the uncertainty of the definition of \"archaeological objects\", as well as the absence of any universal methodology for classifying movable things as archaeological objects. The expert's opinion on the belonging of a thing to the number of archaeological objects, regardless of the circumstances of acquisition, is based on its age. The presence of oxides and impurities on the object is interpreted as proof of its origin from the cultural layer. However, such an approach to the identification of antique items removed from the cultural layer or from the person against whom the proceedings on an administrative offense are being conducted is far from indisputable. 2. Turnover of archaeological objects. In the descriptive and motivational part of judicial acts, archaeological objects are often defined as having the status of things withdrawn from circulation. At the same time, the presumption of State ownership applies to archaeological objects lying on the surface of the earth, in the ground or under water. Based on a systematic analysis of the norms regulating relations regarding the turnover of archaeological objects, it can be concluded that the federal legislator, in strictly stipulated cases, allowed the possibility of civil turnover of a certain part of the movable archaeological heritage. In this regard, archaeological objects should be classified as objects of civil rights, limited in circulation. 3. The objective side of the administrative offense. The basis for initiating a case of an administrative offense under Article 7.15.1 of the Administrative Code of the Russian Federation should be the fact of a transaction with an archaeological object. Otherwise, the proceedings initiated in the case are subject to termination due to the absence of an event of an administrative offense or the composition of an administrative offense. At the same time, judicial practice abounds with examples of judicial decisions in the absence of the fact of the transaction. 4. Recognition of the right of ownership of individuals and legal entities to movable antiquities by virtue of the statute of limitations. With regard to things in private possession, created in the recent past (XIX – XX centuries), as well as numismatic and other collections whose belonging to archaeology, taking into account the information feature, is very doubtful, the right of private ownership should be recognized due to the acquisition prescription.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"62 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84268795","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 right of the victim to receive a qualified legal assistance as one of the guarantees for the protection of his private interests","authors":"O. Andreeva, Polina O. Herzen, Anastasia A. Rukavishnikova","doi":"10.17223/22253513/45/1","DOIUrl":"https://doi.org/10.17223/22253513/45/1","url":null,"abstract":"Article 48 of the Constitution of the Russian Federation guarantees everyone the right to a qualified legal assistance, including a free one. There is an imbalance in the domestic criminal proceedings in terms of establishing the guarantees to receive a qualified legal assistance by those participants who protect private interests (suspects, accused persons, victims). Based on the analysis of legislation, judicial practice, and scientific literature, the authors have identified the main manifestations of this imbalance. These manifestations include, in particular, the absence of requirements for the qualification of a person providing qualified legal assistance as a representative of the victim, as well as the absence of the victim's right to have a representative \"by appointment\" (except for the case provided for in Part 2.1б, Article 45 of the Criminal Procedure Code of the Russian Federation). Thus, under Article 45 of the Criminal Procedure Code, the victim's representatives may be lawyers, close relatives or other persons whose admission is requested by the victim. The Criminal Procedure Code does not contain any requirements for the professional or personal qualities of \"other persons\", which does not make it possible to fully ensure that victims receive qualified legal assistance, which, as a result, does not allow us to talk about the full possibility of protecting their private interests. In this regard, the authors formulated proposals to establish requirements for the qualification of persons who are not lawyers who can be admitted to take part in the case as a representative of the victim. In particular, it is proposed to enshrine in the Code of Criminal Procedure that the representative of the victim may be lawyers and other persons providing legal assistance who have a higher legal education or an academic degree in a legal specialty by analogy with the requirements for a representative established in Part 3, Article 59 of the Arbitration Procedure Code of the Russian Federation. The possibility of recovering the costs of paying for the services of a representative as legal costs under Articles 131 and 132 of the Code of Criminal Procedure currently compensates the victim's lack of the right to receive a free qualified legal assistance. However, such a procedure does not solve the problem of ensuring the participation of the victim's representative where the latter does not have the financial means to pay for his services, and also in most cases does not allow compensating fully the costs incurred by the victim, as evidenced by judicial practice. In this regard, the authors formulated proposals to amend Article 45 of the Code of Criminal Procedure of the Russian Federation and to enshrine in legislation the obligation of officials, the court, at the request of the victim, his legal representative, to ensure the participation of a lawyer as his representative, including at the expense of the federal budget. The authors declare no con","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"20 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78039451","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":"Administrative and legal forms and methods of countering corruption in the Russian Federation and the Republic of Belarus","authors":"S. V. Vedyashkin, Yuri I. Migachev, Maksim M. Polyakov","doi":"10.17223/22253513/45/3","DOIUrl":"https://doi.org/10.17223/22253513/45/3","url":null,"abstract":"Corruption is one of the main threats to the entire world community. The Russian Federation takes an active part in countering this negative phenomenon. This is expressed in anti-corruption cooperation at the level of international organizations, as well as in the adoption and further ratification of international legal acts. Russia is a member of the Commonwealth of Independent States (CIS), within which model laws are adopted, which created the preconditions for the formation of the most important anti-corruption institutions, which subsequently began to be introduced into the Russian legal system: anti-corruption expertise of legal acts, anticorruption monitoring, anti-corruption standards, anti-corruption programs, status reports corruption and implementation of anti-corruption policy measures, etc. The administrative and legal forms and methods of combating corruption in Russia are enshrined in federal laws, as well as in the laws of the constituent entities of the Russian Federation. The main form of countering corruption in Russia is government plans and programs. With regard to the field of functioning of the civil service in the Russian Federation, such an administrative and legal form as anti-corruption standards is actively developing, including a unified system of prohibitions, restrictions and permissions that ensure the prevention of corruption. Another important promising legal form of combating corruption in public administration is special administrative regulations related to ensuring the implementation of anti-corruption measures. In Belarus, a model of combating corruption is being implemented very similar to the Russian one. According to the legislation of the Republic of Belarus, public control is actively used in the fight against corruption. At the national level, special criteria for assessing the activities of state bodies and other organizations in the fight against corruption and economic offenses have been approved. One of the rather interesting anti-corruption measures used in Belarus is the payment of remuneration to an individual who contributed to the identification of corruption. The authors came to the conclusion that the de facto \"ideal\" model of combating corruption in the world simply does not exist. There are examples of individual countries that have indeed achieved significant results in the fight against corruption. Existing trends in domestic practice reflect a gradual shift away from the use of tough anti-corruption measures towards more flexible economic and administrative mechanisms, which are showing their effectiveness in some countries of Europe and Asia. It is important to continue working in this direction, to improve the legal and organizational foundations of combating corruption, and to gradually introduce effective anticorruption forms and methods into Russian practice. 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":"81297257","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":"Comfortable satisfaction\" in resolution of disciplinary disputes on match-fixing of the results of sporting competitions","authors":"I. Vasilyev, Donmei Pang, N. Sidorova, Nikolai G. Stoiko, Jun Cai","doi":"10.17223/22253513/45/2","DOIUrl":"https://doi.org/10.17223/22253513/45/2","url":null,"abstract":"In its decision CAS 2011 / A / 2490, the Court of Arbitration for Sport (hereinafter - CAS) noted for the first time that there is no universal standard of proof (which, for example, is established in the WADA Code in anti-doping violation situations), although there is “consistency in this matter between sports associations is desirable”. Historically, the use of the “comfortable satisfaction” standard has dominated the resolution of disciplinary sports disputes. The strictest standard “without any reasonable doubt” (all doubts in favor of the person brought to justice) is not applied in sports, since it has the legal nature of public procedural branches of national legal systems - for example, in Russian criminal proceedings. At the same time, the refusal to raise the level of the standard of proof to “without any reasonable doubt” does not prevent the jurisdictional body of the federation, CAS from recognizing the court's verdict as evidence, albeit without prejudice. At the same time, in our opinion, such a position is relevant if the denial of the prejudicial significance of national decisions also makes it impossible to confer exclusivity on a sentence, a court ruling as evidence of the charge. In many of the disputes we examined federations had access to investigations by national law enforcements and sometimes to judicial decisions. Such materials, decisions for evidence purposes were provided by the national federations while resolving disputes in the jurisdictional bodies of international sports federations and CAS. With such a status quo, is it possible to speak about the lack of the necessary powers and resources? Formally, yes, because, firstly, it is necessary to gain access to evidence, which is due to the specifics of the legislative system of a particular state and may not be provided, and secondly, the evidence was not collected and evaluated by the bodies of sports federations, the latter use the results of investigative measures and law enforcement activities of state bodies. On the other hand, when the international sports federations and the CAS had at their disposal criminal investigations and decisions of national courts, as well as the jurisdiction of national federations, the evidence was considered as “comfortable satisfaction”. For law enforcement investigations and criminal court verdicts, reference can be made to the higher “without any reasonable doubt” standard of proof, which involves the use of the decisions and evidence presented in it in favor of the manipulation charge in resolving disciplinary disputes at a softer standard. A similar rationale can be extended to decisions of the jurisdictional bodies of national sports federations if they are based on the results of law enforcement investigations and / or court decisions. The authors declare no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"1 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79991264","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 tax clause as an instrument for the convergence of private and public regulation","authors":"I. Tsindeliani, E. V. Bezikova","doi":"10.17223/22253513/43/15","DOIUrl":"https://doi.org/10.17223/22253513/43/15","url":null,"abstract":"A tax clause can be a tool for harmonizing public and private legal interests based on the balance of redistribution of tax risks between taxpayers-counterparties of civil law transactions. Constructing a tax clause in the agreement, the parties confirm the availability of their own resources to fulfill obligations, and also guarantee the validity and legality of the actual executors and co-executors of obligations. The study of legislation research, currently emerging law enforcement and judicial practice allows the authors to classify tax clauses into 2 types: assurances of circumstances with compensation for losses and assurances of circumstances with compensation for property losses. According to the analysis of judicial practice in disputes on compensation for losses (Articles 15, 431.2 of the Civil Code of the Russian Federation) in case of violation of the \"assurances\" provided for the agreement in the situation of additional VAT charging, it can be concluded that the courts in most cases satisfy the declared property claims. The Supreme Court of the Russian Federation recognizes the plaintiff's right to compensation for losses, qualifying such an action by the taxpayer as legal and justified. That is, if the taxpayer did not realize the expenses and did not apply the VAT deduction, then he has the right to demand the recovery of the corresponding amounts of losses from the persons guilty of causing them. The presence of a tax clause guarantees reimbursement of property losses incurred by the party to the contract as a result of non-compliance with the tax clause when filing claims of tax authorities. The inclusion of tax clauses in the agreemant is reasonable and legitimate if their purpose is not to shift the fiscal consequences to the counterparty of the transaction. Compensation for losses in accordance with Article 406.1 of the Civil Code of the Russian Federation is carried out regardless of the presence of a violation (nonperformance or improper performance) of the obligation by the relevant party and regardless of the causal relationship between the behavior of this party and the damage caused by the occurrence of circumstances determined by the parties. There is no doubt that in a dispute based on Article 406.1 of the Civil Code of the Russian Federation, the norms of Articles 15 and 431.2 of the Civil Code of the Russian Federation are not applicable. 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":"37 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79320274","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":"Advantages and disadvantages of the convergence of private law into control and supervision as a public administration institution","authors":"V. Kvanina","doi":"10.17223/22253513/44/10","DOIUrl":"https://doi.org/10.17223/22253513/44/10","url":null,"abstract":"As part of the tasks of limiting state interference in the economic activities of business entities, ending excessive state regulation, and developing the system of selfregulatory organisations in the economy, an administrative reform has been implemented, including in the sphere of control and oversight activities. As a result, Federal Law No. 248-FZ of 31.07.2020 \"On State Control (Supervision) and Municipal Control in the Russian Federation\" (hereinafter - the Law on Control) was adopted. State control (supervision) is a function of the state related to the sphere of public administration, which predetermines its public-law nature. At the same time, its goals set within the framework of the administrative reform have affected the content of the law and its nature - there has been a convergence of private law into control and supervision activities. A manifestation of this conclusion is Article 8 of the Control Law, devoted to the principle of incentives for good faith compliance with mandatory requirements, which implies that in its implementation preventive measures aimed at reducing the risk of harm are prioritised over control and oversight measures. The legal consequence of confirming the bona fides of a controlled person will be the reduction of the category of risk of harm, and separate legal means - independent assessment of compliance with mandatory requirements and conclusion by a controlled person with an insurance organization of voluntary insurance of risks of harm, if they are provided by the federal law on the type of control, act as grounds for exemption from planned control and oversight measures (respectively Art. 54 and part 9 of Article 25). Another example confirming the 'privatisation' of the institute of state control (supervision) are the provisions in the Control Act on the recognition of results of independent evaluation of compliance with mandatory requirements (Art. 54) and membership in self-regulatory organisations (Art. 55). Their legal consequence is the failure to carry out planned inspections in relation to controlled persons, unless otherwise provided for by the federal law on the type of control. This shows that the state has actually taken real measures to reduce excessive state regulation in the framework of control and supervisory activities. On the other hand, in the examined cases the transformation of public administration is taking place at the expense of businesses that incur additional financial expenses to implement the state's controlling function. However, doubts arise about the implementation by the business community of private law means of replacing planned inspections if this would cause them high financial costs. On this basis, the state should consider measures to stimulate their implementation, as is the case, for example, with environmental legislation for new technologies. The author declares no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"52 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85820557","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 criminal prosecution of persons guilty of malicious non-compliance with a court decision or other judicial act in civil and administrative cases","authors":"A. V. Yudin, Yuriy S. Norvartyan","doi":"10.17223/22253513/47/8","DOIUrl":"https://doi.org/10.17223/22253513/47/8","url":null,"abstract":"Malicious non-enforcement of a judicial act entails criminal liability under Article 315 of the Criminal Code only if the offence has been committed by a special subject (an official, head of a body or organisation) or if the person has been previously held administratively liable under Article 17.15(4) of the CAO. The authors draw attention to the fact that in cases where a person who has failed to fulfil a legal obligation is sentenced to execution by a court, then the further non-fulfilment of such obligation now constitutes not only a failure by the subject to fulfil a duty but also an infringement of the interests of justice whose demands are ignored by the obligated person. In this regard, the criminal law criminalises not only the \"general\" malicious non-execution of a judicial act, but also certain forms of non-execution in relation to certain types of proceedings and to certain categories of cases (e.g. failure to pay alimony, evasion of payment of accounts payable, etc.). The authors, in relation to civil, administrative cases, and cases of economic disputes, prove inconsistency in criminalizing forms of non-execution of judicial acts and discover the potential for expanding situations in which persons could be criminally liable, which would contribute to improving the level of performance discipline. The authors base their argumentation system on a number of criteria, among which: determination of the legal basis for the execution of judicial acts; identification of the range of judicial acts, the non-execution of which may lead to criminal prosecution; characteristics of the requirement set forth in the judicial act, the non-fulfillment of which may entail criminal prosecution; determination of the circle of subjects obligated to the execution of the judicial act and the subjects to whom the person is obliged to execute the judicial act; distribution of responsibilities for the execution of the judicial act between the recoverer (creditor), the debtor and the enforcement authority from the point of view of possible substitution of the debtor as a subject obligated to execution; legal characteristics of the criminal-legal sign of \"malice\" of nonfulfillment of the requirements of the judicial act; disclosure of possible forms of nonfulfillment. Each of the listed criteria allows you to make a judgment about the presence of signs of the analyzed corpus delicti in the actions (inaction) of the subject. The authors also address the assessment of the illegality of non-execution of a judicial act from the positions of various branches of law, emphasizing the role of criminal liability measures as the most repressive measures to restore legality in this area.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"124 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87754431","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":"Some problems in calculating and counting the period of prohibition of certain actions against the period of house arrest, detention and imprisonment","authors":"Olga V. Zheleva, Alexander S. Tkach","doi":"10.17223/22253513/45/4","DOIUrl":"https://doi.org/10.17223/22253513/45/4","url":null,"abstract":"The subject of the article is the procedure of application of prohibition of certain actions and the rules of counting the term of this preventive measure against the term of house arrest, detention and imprisonment. The relevance of the chosen topic is due to the introduction of uncoordinated changes in criminal procedural and criminal legislation, which led to legal uncertainty and lack of a unified approach in law enforcement. The authors solved the following problems: to disclose the content of prohibition of certain actions; to determine the moments of the beginning and end of prohibitions; to establish the proportions of offsetting periods of prohibition of certain actions with other measures of restraint; to formulate rules of offsetting periods of prohibition of certain actions and deprivation of liberty. The methodology of the study consisted of general scientific and special scientific methods: dialectical, formal-logical, comparative-legal, systemic, analysis and synthesis. On the basis of these methods the article provides an analysis of the procedure for calculating the period of prohibition of certain actions. It is pointed out that the gap of the present regulation is the lack of cut-off terms of injunctions' validity, stipulated in the items 2-6 of part 6 of article 105. 6 of Art. 105.1 of the CPC of the RF, the procedure for their extension and control. The Article stresses that the prohibition of leaving the dwelling is linked to the isolation of the person from society, and therefore the time of such prohibition should be taken into account when replacing this preventive measure with house arrest or remand in custody. In the reverse situation, there should also be an offsetting of time limits. Based on the scope of the imposed restrictions, the authors justify the following proportion in the RF CCrP: 1 day of detention equals 2 days of house arrest and 3 days of prohibition to leave the dwelling. Particular attention is paid to the issue of crediting the time of prohibition to leave the dwelling premises into the term of punishment. Based on an analysis of case law, the authors identify three approaches. The first is that the period of prohibition of certain actions under para. 1 P. 6 of Article 105.1 of the RF CCrP, should not be counted as part of the imprisonment sentence, as this is not provided for in Article 72 of the RF CC. According to the second approach, the period of prohibition to leave the dwelling premises should be counted as part of the term of imprisonment, using by analogy the provisions on counting the term of house arrest as part of the term of imprisonment. A third approach is that the time of prohibition to leave the premises should be counted indirectly: through correlation with another preventive measure - detention, in order to take into account the type of correctional facility assigned to the person. The authors adhere to the second position, but propose a different proportion of offsetting, different","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"10 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82347760","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 role of Professor of Tomsk State University V.N. Shcheglov in the development of the theory of civil procedure law","authors":"Tatyana Yu. Barishpolskaya","doi":"10.17223/22253513/43/10","DOIUrl":"https://doi.org/10.17223/22253513/43/10","url":null,"abstract":"I dedicate the article to Professor of the Department of Civil Law and Process of the Faculty of Law of Tomsk State University, Doctor of Law, Honored The article highlights the role of the Professor of the Department of Civil Law and Procedure of Tomsk State University Viktor Nifonovich Shcheglov in the development of the theory and method of teaching civil procedural law. I can separate the main directions of V.N. Shcheglov’s research activities: the legality and validity of a court decision, civil procedural legal relationship, the problem of a “broad” understanding of civil procedure and the subject of civil procedural law, a lawsuit and a claim form of legal protection. We pay particular attention to the formation of a scientific school under the leadership of Professor V.N. Shcheglov, continuity in conducting theoretical research, and introducing its results into the method of teaching civil procedural law. The content of the works of Professor V.N. Shcheglov enables us to conclude that the research interest of the scientist was focused primarily on the analysis of the nature, features and problems of the effectiveness of civil procedure as a special legal form of protection of rights and legally protected interests. Within the framework of this broad problem, it is possible to identify several methodologically significant aspects, which were found in the articles and monographs of V.N. Shcheglov. The first of them is the consideration of civil procedure as a special legal relationship. V.N. Shcheglov devoted several articles to this issue and his monograph “Civil Procedural Legal Relationship” (1966) was awarded the Tomsk State University Prize in 1967. The main idea defended by the author was the assertion that the civil procedure is a social relationship regulated by the norms of civil procedural law. The subject of this relationship is, on the one hand, the jurisdictional body that resolves the civil case, and on the other hand, the parties to a civil trial. The content of this legal relationship is the behavior of its subjects that is clothed in in the form of procedural powers, subjective, procedural rights and obligations. V.N. Shcheglov paid attention to a broad understanding of civil procedure and the subject of civil procedural law; whether civil procedure is only a trial of civil cases or any jurisdictional procedure aimed at protecting civil rights. V.N. Shcheglov and Professor N.B. Zeider concluded that the nature of the procedure is determined not by the body resolving the case, but by the nature (branch affiliation) of legal relations that are the subject of consideration within the framework of a particular procedural form. Therefore, civil procedural law regulates the procedural relations that develop in adjudication of civil cases by various jurisdictional bodies (a broad understanding of the subject of civil procedural law). The author declares no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"31 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84884538","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":"Notarial protection of the rights and legitimate interests of the parties in contracts requiring mandatory notarial form: prospects for development and problems of judicial practice","authors":"L. Schennikova","doi":"10.17223/22253513/44/15","DOIUrl":"https://doi.org/10.17223/22253513/44/15","url":null,"abstract":"This study focuses on the analysis of contracts that require notarisation. The author focuses on the dynamics of the development of \"cases\" of compulsory notarisation of contracts established by Russian law. Of particular relevance is the analysis of foreign civil legislation stipulating the notarial compulsory form for civil law contracts. The author insists that the purpose of this kind of legislation is to ensure the effective protection of the rights and legitimate interests of civil parties. Of particular importance in this regard is the analysis of judicial practice in cases of invalidation of notarized contracts carried out in the study. To develop criteria (grounds, signs) which would allow the legislator to systematically include agreements into the category of mandatory notarization. It is also important to find incentives to exclude cases of judicial invalidation of notarized contracts. The research was carried out using the following methods: general scientific dialectic, universal scientific methods, as well as special legal methods, including comparative legal method, systemic interpretation and legal modelling. It has been proved that the cases of obligatory notarial authentication of contracts in the civil legislation should be based on their basic functions which determine the direction of influence on the participants of proprietary contracts. It was proposed to consider a special object, absence of counteroffer, proprietary law orientation, necessity of protection of family interests, as well as interests of debtor in agreements of security nature as criteria of obligatory notarial authentication of agreements. It has been established that the tendency in the development of civil legislation is an expansion of the list of contracts which require obligatory notarial authentication. It is offered to establish in the norms of notarial law property responsibility of notaries in case of invalidation of agreements certified by them in a judicial proceeding. It is possible to state that the goal of the publication has been reached. A system of criteria for including contracts into a category of obligatory notarial certification is proposed, and also the idea of civil liability of notaries in case of invalidation of contracts certified by them in a court order is formulated. The author declares no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"83 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89110147","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}