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 ON THE SYSTEM OF LEGISLATION ON ADMINISTRATIVE OFFENCES, ADMINISTRATIVE COURTS AND ADMINISTRATIVE VIOLATION

2020 ◽  
Vol 15 (1) ◽  
pp. 42-58
Author(s):  
Mikhail I. Kleandrov
Keyword(s):  
Russian Federation ◽  
Criminal Liability ◽  
The State ◽  
Federal Law ◽  
Procedural Law ◽  
Procedural Code ◽  
The Russian Federation ◽  
Administrative Courts ◽  
The Difference ◽  
Judicial Procedure

The article deals with the issues of offences in the field of criminal and administrative law. The author draws attention to the fact that those types of legal proceedings (including criminal and administrative) which are proclaimed in Part 2 of Art. 118 of the Constitution of the Russian Federation are not equivalent from the procedural perspective. The Criminal Procedure Code of the Russian Federation is a unified federal procedural legislative act. While administrative legal proceeding is based on the Code of Administrative Judicial Procedure of the Russian Federation and the Arbitration Procedural Code of the Russian Federation — for economic disputes arising from administrative legal relations, the Code of Administrative Offenses of the Russian Federation (which will soon be replaced by a new one together with a separate one — fundamentally new Procedural Code of Administrative Offenses of the Russian Federation) and a number of other acts, including acts of constituent entities of the Russian Federation. Meanwhile, at the very beginning of this century, the State Duma developed and in the first reading adopted a draft federal law on administrative courts in the Russian Federation, which a few years later was excluded from the plan of legislative work of the State Duma due to, as the author believes, the absence of an appropriate procedural law. The unity of understanding of offences in the administrative and criminal fields is based on the fact that in both cases it is a socially dangerous act, the difference is only in the degree of public danger. Moreover, each of these types of offences is divided into a number of subspecies — also depending on the degree of public danger. In this connection the legalization of a criminal infraction as well as the introduction of criminal liability of legal entities would be appropriate within the framework of the issue under consideration. Then it will make possible legislative consolidation (in its final form) of a single "line" of offences, differentiated in detail (at about ten "categories") depending on the degree of public danger of each of the "categories", with a simultaneous (also a single law) legal procedural basis for regulating the procedure for considering cases of offenses

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. 

scholarly journals Some Issues on Mediation in Resolving Disputes in the Russian Federation

2020 ◽  
Vol 15 (5) ◽  
pp. 135-143
Author(s):  
A. N. Levushkin ◽  
V. V. Vorobev
Keyword(s):  
Dispute Resolution ◽  
Russian Federation ◽  
Critical Analysis ◽  
Knowledge And Skills ◽  
Administrative Procedure ◽  
Research Activities ◽  
Procedure Code ◽  
Procedural Code ◽  
Arbitration Procedure ◽  
The Russian Federation

The introduction of judicial reconciliation procedures in the arbitrazh, civil and administrative procedure can serve as a positive impetus for the development of a civilized and effective out-of-court dispute resolution in the Russian Federation. However, there are a number of provisions that are subject to critical analysis in the relevant norms of the Arbitration Procedure Code of the Russian Federation, Civil Procedural Code of the Russian Federation, Administrative Procedure Code of the Russian Federation, and the Rules for conducting court mediation. Noteworthy are the rules establishing the requirements for candidates for judicial mediators regarding the need for retired judges to conduct research activities, which can hardly be justified. Due to the specificity of the conciliation procedure itself, it is also necessary to consider the issue of judicial mediators having knowledge and skills in the field of mediation. In this paper, the authors analyze some problems of mediation in resolving economic and other disputes in the Russian Federation and abroad, and propose some changes to the procedural legislation.

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.

Аppeal Against the Submission on Elimination of Causes and Conditions that Contributed to the Commission Administrative Offence

2021 ◽  
Vol 4 ◽  
pp. 54-58
Author(s):  
O. V. Pleshevenya ◽  
Keyword(s):  
Russian Federation ◽  
Judicial System ◽  
Constitutional Rights ◽  
Administrative Procedure ◽  
Judicial Practice ◽  
Procedural Code ◽  
The Russian Federation ◽  
Business Entities ◽  
Judicial Procedure

. The article is devoted to the study of gaps in legislation when appealing against the idea of eliminating the causes and conditions that contributed to the Commission of an administrative offense. The author draws attention to the contradictory jurisprudence in resolving this issue, which violates the constitutional rights to protect the relevant actors, in particular, business entities, and does not promote the unity of the judicial system. The emphasis is on the established judicial practice in a separate appeal of the submission, without filing a complaint against the ruling in the case of administrative offense – in the order of the head of 22 Russian Federation Code of Administrative Procedure. In conclusion, conclusions have been drawn about the need to introduce rules on appeal of the submission out of court to the Code on Administrative Offences of the Russian Federation (or the Procedural Code on Administrative Offences of the Russian Federation, if adopted). Regarding the judicial procedure of appeal, it is proposed to include the relevant rules in theRussian Federation Code of Administrative Procedure.

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 Reflections About the Administrative Process in Modern Russia

2021 ◽  
Vol 18 (3) ◽  
pp. 277-291
Author(s):  
A. A. Grishkovets
Keyword(s):  
Russian Federation ◽  
Administrative Law ◽  
Administrative Process ◽  
Administrative Procedure ◽  
Administrative Procedures ◽  
The Russian Federation ◽  
Administrative Courts ◽  
Administrative Jurisdiction ◽  
Administrative Proceedings ◽  
Administrative Justice

The article deals with the problem of understanding the administrative process in modern Russia. Discussion about its essence has not stopped in the science of administrative law for many years. There are two main points of view. The administrative process is understood in a narrow sense as a jurisdictional activity and in a broad sense as a set of administrative procedures, administrative jurisdiction and administrative justice. The opinion is expressed that the understanding of the administrative process should be based on the understanding of the subject of administrative law. After the adoption of the Code of Administrative Proceedings of the Russian Federation in our country, a real legal basis appeared for the creation of administrative justice, which resolves disputes between a citizen and the state. The legal nature of administrative justice and administrative jurisdiction is not the same. They belong to various subbranches of administrative law. The situation should be preserved when one part of cases of administrative offenses is considered by courts, and the other - by other bodies of administrative jurisdiction. The proposal to consider cases of administrative offenses in accordance with the norms of the Code of Administrative Proceedings is critically assessed. An attempt to create administrative courts in the Russian Federation is analyzed and evaluated. The experience of creating administrative courts in France and Germany is presented. The reasons why the administrative courts were never created are indicated. Administrative cases are considered by courts of general jurisdiction. An attempt to adopt the Administrative and Administrative Procedure Codes of the Russian Federation is analyzed. The Code of Administrative Proceedings of 2015, on the basis of which administrative cases are considered, is, in fact, the Administrative Procedure Code. The proposal to develop and adopt the Federal Law “On Administrative Procedures” is critically assessed. It is concluded that the administrative process is a judicial procedure for considering cases arising from public legal relations according to the norms of the Code of Administrative Proceedings of the Russian Federation, as well as the activities of bodies of administrative jurisdiction, including the court, to consider cases of administrative offenses in the manner established by the Code of the Russian Federation on Administrative Offenses.

scholarly journals The Mediation Procedure as a Type of Reconciliation in the Modern Russian Civil Procedure

2021 ◽  
Vol 2 ◽  
pp. 45-50
Author(s):  
Yulia V. Yudina ◽  
Keyword(s):  
Short Stories ◽  
Dispute Resolution ◽  
Russian Federation ◽  
Civil Procedure ◽  
Federal Law ◽  
Procedural Law ◽  
The Russian Federation ◽  
The Creation ◽  
Modern Russian

Mediation technologies are one of the alternative to judicial methods of dispute resolution. Difficulties in the application of this institution, which is practically not used by the parties to the conflict, predetermined the need for its reform, as well as the creation of a whole complex of conciliation procedures, their legislative consolidation and stimulation. The article analyzes the practice of the parties to the dispute to the mediation procedure that existed before the entry into force of the Federal Law of July 26, 2019 No. 197-ФЗ ‘On Amending Certain Legislative Acts of the Russian Federation’, as well as the short stories of the civil procedural law on conciliation procedures in general that can be used after October 25, 2019.

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