scholarly journals Evidence and Establishment of Evidence Norms in CIS Countries Criminal Procedures: A Comparative Legal Analysis

Lex Russica ◽  
2020 ◽  
pp. 148-156
Author(s):  
S. V. Kornakova
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Advantages And Disadvantages ◽  
Procedural Law ◽  
Procedural Code ◽  
The Russian Federation ◽  
Cis Countries ◽  
Procedure Codes ◽  
In Cis

The paper is devoted to a comparative legal analysis of some norms of the criminal procedure laws of the CIS countries concerning evidence and establishment of evidence in criminal procedures. The paper analyzes the legal definitions of the concept of "evidence" in the CIS countries codes. It is noted that the wording used in article 74 of the Criminal Procedural Code of the Russian Federation is less specific than the content of the relevant norms in the legislation of other CIS countries. In particular, the replacement of the phrase "this data is established", which was used in the RSFSR Criminal Procedure Code, with the phrase "evidence is" in part 2 of article 74 of the Criminal Procedural Code of the Russian Federation, which led to an illegal identification of the sources of evidence and the evidence itself, is critically evaluated.Some features, advantages and disadvantages of the norms of criminal procedure laws of the CIS countries containing a list of sources of evidence are revealed. The conclusion is made about a clear advantage in this respect of the Criminal Procedural Code of the Russian Federation, part 2 of article 74 of which contains a complete and universal list of sources of evidence. At the same time, the need to include in this list, along with the testimony of the suspect and the accused, such a source of evidence as the testimony of the defendant is argued.The paper analyzes the legislative consolidation of the concept of "evidence" in the criminal procedure codes of the CIS countries, which allowed us to critically evaluate the definition given to this concept by the Russian legislator. According to the author, the absence of the purpose for the establishment of evidence in article 85 of the Criminal Procedural Code of the Russian Federation, namely the purpose for establishing the circumstances listed in article 73 of the Criminal Procedural Code of the Russian Federation, as a lawful, reasoned and just resolution of the case, is a significant shortcoming of the Russian criminal-procedural law that requires special legal address. 

Ensuring the Rights and Legal Interests of the Victim when Checking the Crime Report: A Comparative Legal Analysis of the Criminal Procedure Codes of the Russian Federation and the People’s Republic of China

2021 ◽  
pp. 128-133
Author(s):  
Irina G. Smirnova ◽  
◽  
Ekaterina V. Alekseeva ◽  
◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
People’S Republic Of China ◽  
Legal Analysis ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Procedure Code ◽  
The Russian Federation ◽  
Procedure Codes

The article presents a comparative legal analysis of the norms of the Criminal Procedure Code of the Russian Federation and the Criminal Procedure Code of the People’s Republic of China, which regulate the rights and powers of the victim within the framework of the stage of initiating a criminal case. The authors highlight several significant differences in the legal regulation of this issue. The differences are: the obligation to comply with the rules of jurisdiction in China at the stage of filing a statement of a crime, which is not required under the Code of Criminal Procedure of the Russian Federation; compulsory fingerprinting of a person when filing a crime report with a public security agency implemented in China; the existence of several types of preliminary checks (the list of activities carried out as part of these checks in China is open); intensive development of IT technologies and their introduction into the life of society, including for the fight against crime and ensuring law and order in society, in China.

scholarly journals Public Prosecution in the System of Criminal Procedural Functions

2019 ◽  
pp. 183-193
Author(s):  
V. N. Isaenko
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Semantic Content ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Public Prosecution ◽  
Procedural Law ◽  
Procedural Code ◽  
The Russian Federation ◽  
Definition Of

The paper discusses the concept and types of criminal procedural functions, analyzes the points of view of legal scholars who at various times formulated the corresponding definition. According to the author, the semantic content set by the legislator is set forth in Art. 5 of the Criminal Procedural Code of the Russian Federation is an important contribution to the improvement of the conceptual apparatus of criminal procedural law; it is intended to ensure uniformity of interpretation of the concepts they designate and, consequently, uniformity of action of the relevant criminal procedure institutions. At the same time, the Criminal Procedural Code of the Russian Federation has no definition of the concept of criminal procedure function. Based on the analysis of the norms of the Criminal Procedural Code of the Russian Federation and the opinions of jurists who expressed opinions on the concept of the criminal procedure function, it is proposed to include an additional clause in Art. 5 of the Criminal Procedural Code of the Russian Federation that would contain this concept in the proposed edition of the author. It is also proposed to divide the criminal procedural functions into two groups in connection with their performance by the participants of the criminal process both at the pre-trial and at the trial stages. The opinion is expressed on the independent nature of the function of assisting criminal proceedings carried out by its other participants, referred to in Ch. 8 of the Criminal Procedural Code of the Russian Federation. The content of the function of supporting public prosecution as a form and stage of criminal prosecution and its place in the system of other criminal procedure functions are analyzed. The author proposes a definition of the concept of public prosecution, which is considered as a necessary element and at the same time as a special form of the function of the prosecution in criminal proceedings. This activity differs significantly in terms of tasks, subject and conditions of execution from the accusatory activities of the investigating officer, investigator, body of inquiry in pre-trial proceedings.

scholarly journals Competitiveness of minors in the Russian Federation and the countries of the Commonwealth of Independent States: comparative-legal research

2020 ◽  
pp. 104-110
Author(s):  
Svetlana Voronina
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Legal System ◽  
Legal Analysis ◽  
Legal Research ◽  
Advantages And Disadvantages ◽  
Independent States ◽  
The Russian Federation ◽  
Civil Codes ◽  
Cis Countries

The civil legislation of the Russian Federation and the CIS countries has many similarities, at the same time, there are certain discrepancies between the provisions of the civil codes on the negotiability of minors, the juxtaposition of which makes it possible to reveal the features of the civil capacity of minors distinguishing one legal system from all others. A comparative legal analysis of the experience of the CIS countries makes it possible to identify the advantages and disadvantages of the deal ability of minors, the problems of law enforcement and formulate proposals for improving legislation.

scholarly journals Classification of crimes in designing criminal procedure regulations

2019 ◽  
pp. 130-137
Author(s):  
A. G. Kulev ◽  
L. O. Kuleva
Keyword(s):  
Russian Federation ◽  
Criminal Liability ◽  
Great Influence ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Proceedings ◽  
Procedural Code ◽  
The Russian Federation ◽  
Substantive Law

The rules on categorization of crimes are substantive and legal by their nature. Nevertheless, they have a great influence on the state and development of criminal procedural matter. It is proposed to divide the provisions of the Criminal Procedural Code of the Russian Federation, which reflect the provisions of Art. 15 of the Criminal Code of the Russian Federation, into two groups. The first group includes the norms of criminal proceedings that are a kind of logical continuation of criminal law regulations related to exemption from criminal liability and punishment. The second group consists of strictly procedural rules that are not directly dependent on the substantive law: the composition of the bench, jurisdiction and competence of criminal cases, bail hearing, negotiations control and recording, the return of a criminal case to the prosecutor. Particular attention is given to the possibility for the court to change the classification of crimes. Based on the studied theoretical sources and court practice, the authors make suggestions aimed at improving the existing criminal procedure legislation and optimizing its application in the framework of the issues raised.

scholarly journals A COMPARATIVE LEGAL ANALYSIS OF CRIMINAL PROCEDURE LAWS OF RUSSIA AND THE REPUBLIC OF KAZAKHSTAN AIMED AT THE SEARCH FOR A WAY TO IMPROVE THE INSTITUTION OF SUSPICION

2020 ◽  
Vol 11 ◽  
pp. 68-72
Author(s):  
Olga S. Polikarpova ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Distinctive Features ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Russian Law ◽  
The Republic

The relevance of the article is due to the imperfection of the criminal procedure law of the Russian Federation in terms of the institution of suspicion. The author examines the distinctive features of the provisions of Russian law and the criminal procedure law of the Republic of Kazakhstan relating directly to the institution of suspicion and, in order to minimize permissible for criminal proceedings under Russian law, procedural violations, attention is drawn to the possibility of improving the reporting Institute by reforming criminal procedure law of the Russian Federation as a whole with a focus on the introduced in the criminal procedural legislation of the Republic of Kazakhstan the criminal procedural model.

scholarly journals Investigator’s covert-nature procedural activities

2021 ◽  
Vol 108 ◽  
pp. 04011
Author(s):  
Marina Sergeevna Kolosovich ◽  
Lyudmila Vladimirovna Popova ◽  
Anna Fedorovna Zotova ◽  
Maria Mikhailovna Bondar ◽  
Olga Sergeevna Shamshina
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Legal System ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Federal Law ◽  
Criminal Cases ◽  
Criminal Intelligence ◽  
The Russian Federation

Over the years, most of the Russian processualists denied the investigator’s right to engage in actions of covert nature and deemed it impossible to integrate the norms of criminal intelligence legislation in the Code of Criminal Procedure of the Russian Federation adopted on 18.12.2001 No. 174-FZ, rightly referring to the impossibility to vest a single duty-bearer engaged in a preliminary investigation with unprecedented powers. Meanwhile, the latest decades have been marked by active legislative activity in many countries, which in fact has turned covert criminal intelligence and surveillance into a procedural activity. These innovations became specific of a number of countries regardless of their legal system belonging to the Romano-Germanic or Anglo-Saxon legal system, testifying to more profound roots of the problem. The study is also relevant in terms of dissatisfaction, expressed by the Russian law-enforcement authorities, with the crime solvency rate and with the interaction of criminal intelligence detectives and internal affairs investigators. The goal of the study is to identify the procedural provisions governing the investigator’s covert-nature activities and related law enforcement problems. The methodological framework of the research comprises general and particular methods of scientific knowledge: dialectical, systemic, deductive, inductive; synthesis, analysis; comparative legal analysis, statistical and other methods. Results and novelty: it was concluded that the Code of Criminal Procedure provides for the regulation of the investigator’s confidential-nature activities inherent in covert criminal intelligence and surveillance and requiring more detailed elaboration, as concerns the issues of securing the rights of partakers of the said activity; the authors express doubt regarding the justification of the legislator’s differentiation of covert activities under criminal cases into covert investigative actions (Art. 185, 186, 186.1 of the Code of Criminal Procedure) and covert operational and investigative operations that are in fact identical to the former (Art. 6, Cl. 9-11 of the Russian Federation Federal Law No. 144-FZ as of 12.08.1995 “On criminal intelligence and surveillance”.

scholarly journals Essay on the Doctrine of Administrative Procedure

Lex Russica ◽  
2021 ◽  
pp. 11-22
Author(s):  
L. L. Popov
Keyword(s):  
Russian Federation ◽  
High Speed ◽  
Executive Branch ◽  
Russian Science ◽  
Administrative Procedure ◽  
Procedural Law ◽  
Procedural Code ◽  
The Russian Federation ◽  
The Creation ◽  
Administrative Courts

The paper elucidates the history and current state of the administrative procedure doctrine, the idea of the structure of the administrative procedural code of the Russian Federation, shows the role Prof. Nadezhda G. Salishcheva and Prof. Valentin D. Sorokin plaid in the development of the theory of administrative procedure. The author highlights that the first link of administrative procedural activity and the structure of administrative procedural law have been created. The second link, namely, the creation of the Administrative Procedural Code of the Russian Federation has been completed. The third link that involves the recognition by the legal scientific community of the fact that, in the system of Russian law, administrative procedural law does exist, has taken place. And, according to strict logic, there is a need for the fourth final link in the system of administrative procedural activity, namely: the creation of an all-Russian system of administrative courts, which will require a financial basis, the availability of human resources and a modern digital infrastructure, including a unified all-Russian database of citizens and organizations brought to administrative responsibility qualified according to the constituent entity of the Russian Federation and fields (areas) of management, high-speed Internet connection with all local jurisdictional authorities. And as we can see, the system of administrative courts will meet the needs of two branches of state power — the executive branch and the judiciary.The author expresses the wish that curious scientists — administrative law experts — appear in Russian science, who would be interested in the considered scientific issue that constitutes an interesting and very important problem and proceeds researching the theory, legislation and practice of the administrative procedure.

scholarly journals Reflections on the Legal Classification of Participants in Criminal Proceedings

Lex Russica ◽  
2021 ◽  
pp. 103-111
Author(s):  
V. S. Latypov ◽  
R. А. Ismagilov
Keyword(s):  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Proceeding ◽  
Modern Period ◽  
Foreign Countries ◽  
Administration Of Justice ◽  
Procedural Code ◽  
The Russian Federation

In the paper, the authors attempt to analyze the legislative classification of participants in criminal proceedings. The work contains an analysis of the ratio between the concepts of "participant" and "subject" of criminal procedural relations. Having studied the approaches available in the theory of criminal procedure that existed during the period of the Soviet criminal procedure legislation and in the modern period, the authors conclude that it is unacceptable to identify the concepts of "participant" and "subject" of the criminal proceedings. A participant in a criminal proceeding is a person who has certain characteristics, including the existence of rights, duties and responsibilities, as set out in the relevant criminal procedure norm or group of norms.Having applied the method of comparative legal analysis of domestic and foreign criminal procedure legislation, procedural theoretical constructions of the Soviet and modern period, the authors conclude that the legislator made an error in the presented classification and system of participants in the criminal procedure. In addition to the main criminal procedure functions, the authors focus on the existence of other functions that are no less important for the emergence and development of criminal procedure relations. It is stated that there is a need to change the approach to the legislative classification of participants in criminal proceedings, taking as a basis the existing experience of individual foreign countries. The authors propose to change the structure of section II of the Criminal Procedural Code of the Russian Federation, which makes it possible to avoid the currently existing procedural conflict related to the attribution of the investigator and the inquirer to the prosecution. It may also help to eliminate any doubts about the attribution of persons assisting in the administration of justice to the participants in the proceedings.

scholarly journals On Legal Basis of a Claim

2021 ◽  
Vol 16 (11) ◽  
pp. 107-116
Author(s):  
V. N. Ivakin
Keyword(s):  
Russian Federation ◽  
Burden Of Proof ◽  
Civil Procedure ◽  
General Concept ◽  
Legal Basis ◽  
Procedural Law ◽  
Procedural Code ◽  
Legitimate Interests ◽  
The Russian Federation ◽  
Legal Grounds

The science of civil procedural law advances an opinion that it is necessary to distinguish between the  factual and legal basis of a claim. The latter needs to be singled out, since the specific claim always results from a  specific legal relationship, from the subjective right of the plaintiff to be protected. The main argument, according to  A. A. Dobrovolskiy, is not the presence of the relevant norm in the law but its practical necessity to recognize these  legal grounds as an integral part of a claim. However, the author here confuses two different issues: the expediency  and the obligatory existence of a legal basis for the claim, although in fact these are far from identical concepts.  The author also wrongfully identifies the concepts of "basis of a claim" and "basis of satisfaction of a claim", as  a result of which the legal basis of a claim is always included in the basis of a claim. This position is supported by  some other scientists who dealt with the problems of the claim (G. L. Osokina, O. V. Isaenkova). Meanwhile, if we  consider a claim as a legal phenomenon in general, then the legal basis is indeed a necessary component of the  general concept of “the basis of a claim”. However, if we turn to specific claims, then the legal basis of the claim  can be either optional (Code of Civil Procedure of the RSFSR 1964) or mandatory (Code of Civil Procedure of the  Russian Federation 2002). Currently, in accordance with paragraph 4, Part 2 of Art. 131 of the Civil Procedural Code  of the Russian Federation, the statement of claim must indicate what constitutes the violation or threat of violation  of the rights, freedoms or legitimate interests of the plaintiff. The paper draws attention to the shortcomings of  this norm, and thus suggests to remove it from the Civil Procedural Code of the Russian Federation. At the end of  the paper, it is suggested that with the development of civil procedural legislation, reference to the norms of law  in a statement of claim will become mandatory. However, the recognition by V. V. Yarkov of this provision as valid  by virtue of imposing the burden of proof on the parties seems to be unreasoned.

scholarly journals Development of Procedural Law Foundations of Justice in Administrative Cases in the Context of the New Codification of Administrative and Tort Legislation

Lex Russica ◽  
2020 ◽  
pp. 30-38
Author(s):  
O. V. Pankova
Keyword(s):  
Russian Federation ◽  
Procedural Law ◽  
Procedural Code ◽  
Affirmative Response ◽  
The Russian Federation ◽  
New Codes ◽  
The Government ◽  
Administrative Code ◽  
Legal Mechanism ◽  
Current Code

The paper analyzes the necessity of a fundamental reform of the Administrative Code of the Russian Federation with its division into two codes (a substantive part — the Code of Administrative Offences of the Russian Federation, and a procedural part — the Procedural Code of Administrative Offences of the Russian Federation). With regard to the problem of modernization of procedural administrative and tort legislation, the author questions the main directions, objectives and prerequisites of the third codification in this field and draws the conclusion that the fundamental reform of the Administrative Code of the Russian Federation with the division of it into two codes — material and procedural — is premature and, in fact, political decision not grounded by feasible research results. The author highlights that the Concept of the new Code of Administrative Offences of the Russian Federation approved at the meeting of the Government of the Russian Federation in June 2019 primarily deals with the issues of reforming mainly substantive administrative and tort legislation, while proposals for the improvement of procedural regulation of administrative responsibility are not covered in details. The Concept does not contain information concerning the fact that instead of the current Code of Administrative Offences of the Russian Federation two new codes — the Administrative Code of the Russian Federation (CAO) and the Procedural Code of Administrative Offences of the Russian Federation (PCAO) — will be adopted.The author focuses on the analysis of the draft of the PCAO published on the website of the Ministry of Justice of Russia. Primarily, the paper highlights such provisions that deserve an affirmative response. However, the author devotes the most significant part of the study to the analysis of the conceptual shortcomings of the PCAO of the Russian Federation. Without elimination of these shortcomings, it can hardly been concluded that a complete and qualitative procedural and legal mechanism for the implementation of justice in the field of administrative and tort relations is established in the courts of general jurisdiction.

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