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Vol 17, No 2 (2021)

THEORY AND HISTORY OF STATE AND LAW

5-13 400
Abstract

The article uses an interdisciplinary approach to determine the place of law in the system of culture, based on cultural studies and the conclusions of legal science. The legal values of freedom, justice and formal equality occupy a dominant position in the system of the individualistic type of culture. The article shows the dynamics of legal values in the context of the dynamics of culture, which is developing in the direction of increasing recognition of the postmaterialist values of self-expression and rationality-the values of freedom, justice, equality, tolerance, mutual assistance and cooperation. Based on sociological data, the author draws a conclusion about the role of law in the system of socioculture as a value and institutional factor of progress and the result of social development. Interdisciplinary studies of cultures confirm the basic social and legal pattern-the movement towards greater freedom and equality of an increasing number of people.

14-21 331
Abstract

The article is devoted to the analysis of the provisions of one of the most important sources of early medieval European law, but little studied in Russian historiography – Ripuarian Law, namely, aspects of judicial proceedings. The aim of the study was to identify both the general features of the judicial process that were perceived by the Ripuarian Franks from the legislation of the Salic Franks, in particular, the Salic Law, and the features that reflect aspects of the socio-economic development of Ripuaria. In the course of the study, firstly, the provisions of the Ripuarian Law were identified, which correspond to the existing ideas about the legal proceedings of the Franks – about the procedure for summoning to court, about the types of evidence, etc.; Secondly, in accordance with the purpose of the study, deviations from the practice of legal proceedings adopted by the Salic Franks were identified, which are characteristic of the Ripuarian Franks and are subject to study in conjunction with them (in particular, a certain simplification of judicial procedures, attention to certain types of evidence, etc.).

22-28 353
Abstract

The article considers the reasons for appealing an administrative act and enforce an obligation in court according to the law of the Federal Republic of Germany. In particular, the reasons for appealing of an administrative act is its iIllegality and the resulting violation of the plaintiff's rights. Herewith, an administrative act is legal (not unlawful), if it is based on a legal provision, authorizing administration to act this way, at its issuance the legal requirements of procedural norms (formal legality) and substantive law (material legality) were complied with. The reasons to enforce an administrative obligation are the illegality of the refusal to issue the required administrative act, as a result of which the rights of the plaintiff were violated and the case is prepared for making a decision.

29-34 292
Abstract

The article deals with the actual problem of the legal status of citizens who independently pay the tax on professional income. Due to the fact that this legal regime is new for the legal system of the Russian Federation, many issues require careful theoretical understanding and scientific discussion. In addition, the legal regulation of the legal regime, called “self-employed citizens”, also requires further development and discussion. The author concludes that it is necessary to demarcate the term “self-employed citizens” in a broad and narrow sense and the need for a clear distinction of this term within the framework of regulatory regulation.

ГРАЖДАНСКОЕ ПРАВО

35-44 495
Abstract

The article discusses the issue of the content of the pre-contractual legal relationship and the role of good faith in it. As a result of the analysis, it is concluded that the content of the pre-contractual legal relationship includes only one pre-contractual obligation – to negotiate in good faith. It should be considered as a duty that includes separate elements – manifestations of the general obligation of the parties to behave in good faith, arising at the pre-contractual stage, or, in other words, requirements for good behavior. These elements include the obligation to inform; the obligation not to interrupt negotiations without giving reasons if the other party relied on the person's intention to conclude a contract; the obligation to keep the information received in confidentiality if the party knows that the information is secret and cannot be used by third parties. An attempt has been made to prove that the meaning of good faith is not in addition to the pre-contractual obligation, but in its specification.

45-53 537
Abstract

The essential features of the preferential right are revealed and the main approaches to understanding its legal nature are considered. According to the first approach, preferential rights are defined as cases when, under all equal conditions, the advantage is granted by law to a specific group of persons with some special characteristics. The second approach does not have a single idea: the authors focus on a certain aspect of preferential rights and propose to understand other preferential rights in the same way. The place of “preferential rights” among other exceptions in the law is determined, the relationship and difference from related legal categories are shown. Based on the results of carried out research, the author's definition of a preferential right is developed as an additional possibility based on the property (corporate) interest of its owner, established by law or contract, to demand from the subject-accomplice in the right or the party in respect of proper behavior in the form of providing advantages over third parties. This right is proposed to be considered an independent subjective right due to the obvious independence of its existence in objective law as a measure of possible behavior defined by law (by contract, constituent document), the presence of a construction corresponding to it of a legal obligation, its own mechanism for the implementation of this right, and for a number of other reasons set out in the work.

УГОЛОВНЫЙ ПРОЦЕСС И КРИМИНОЛОГИЯ

54-63 345
Abstract

The article deals with the problematic issues of the formation and development of the institution of trial by jury. Illuminated the question of the content and role of various conceptual approaches: is a jury a “court of the fatherland” or does it exist as long as the state sees its own interest in its existence. The author formulates his position on these approaches and their reflection in the legislation. The article also discusses the constitutional and legal aspects of the stated topic. In particular, the question of what is the constitutional and legal content of the right to trial by jury, and whether it can practically be reduced to zero by means of sectoral law-making, is raised and studied. The article examines the question of the competence of the jury-the categories of criminal cases that need to be considered. The article considers the problematic issues of the formation of a jury court and outlines possible ways to solve them.

64-69 328
Abstract

The negative impact of the existing legislative approach to reforming the criminal process on the possibility of its convergence with other procedural branches is considered. The unjustified separation of bills on reforming the CPC within the framework of unified procedural transformations is noted. Separate legislative work on the criminal process, on the one hand, and arbitration, civil and administrative, on the other hand, leads to the emergence of additional unjustified differences in the normative consolidation of universal institutions. Specific examples of undesirable divergence of lawsuits caused by uncoordinated lawmaking are given. The absence of convergence of procedural law among the goals of both sectoral, in particular, criminal procedure policy, and judicial policy is noted. The necessity of developing the concept and directions of judicial procedural policy is substantiated.

70-78 439
Abstract

The article is devoted to the consideration of ways to reform the stage of completion of pre-trial proceedings in the Russian criminal process. The author analyzed proposals on the transfer to the prosecutor of powers to draw up the final document of pre-trial proceedings, the right to bring the accused to trial, and the separation of these activities of the prosecutor into a separate stage of the process. An appeal to the historical experience of legal regulation of controversial issues, an analysis of the norms of criminal procedure legislation of Kazakhstan make it possible to justify the conclusion: most of the proposals considered are premature. At the same time, the powers of the prosecutor at the end of pre-trial proceedings need to be expanded and specified.

79-84 338
Abstract

The article examines the ways of normative response to criminal behavior from the point of view of historical retrospect and the current level of empirical knowledge. The author focuses on some controversial issues of criminal motivation. It is argued that criminal behavior has not only social determinants, but is also based on the existence of psychophysiological features of the individual formed in unfavorable social conditions. The article analyzes the importance of a person-oriented penitentiary process for ensuring the effectiveness of correctional influence on convicts and state coercion. Special attention is paid to educational work in the process of implementing correction tools. It is shown that the criminal law impact has the potential to comprehensively regulate the behavior of convicts in the process of applying a sentence of imprisonment.

85-94 464
Abstract

The problem of protecting human rights and freedoms is one of the urgent and fundamental problems of modern legal theory and practice. The actualization of this problem is currently due to a significant update of the criminal procedure legislation. The solution to the problems of this protection is not possible without identifying and analyzing the theoretical basis for the protection of individual rights in criminal justice. In the course of the study, conclusions are drawn about the relationship between the concepts of “right”, “freedom” and “legitimate interest” that are similar in content. At the same time, it is noted that legal science proceeds from the fact that there is essentially no fundamental difference between the concepts of “right” and “freedom”, the concept of “legitimate interest” is a prerequisite for the implementation of the first two concepts. The article presents the positions previously expressed in legal science regarding the ratio of fairly similar general legal categories, such as “protection” and “preservation”. The author's point of view on the correlation of these concepts is expressed, it is concluded that the concept of “preservation” is broader in its content than the concept of “protection”, and includes the latter. It’s developed its own approach to understanding the protection of individual rights in criminal proceedings.



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ISSN 2542-0410 (Print)