scholarly journals Preliminary Estimation of Proofs and Making Intermediate Decisions with the Production by the Criminal Case in the Context of the Concept of the Asymmetry of the Rules of Proovement

2016 ◽  
Vol 3 (4) ◽  
pp. 142-147
Author(s):  
V V Khatuaeva ◽  
I V Belousov
Keyword(s):  
Point Of View ◽  
Criminal Case ◽  
Criminal Process ◽  
Preliminary Estimation ◽  
The Asymmetry

In the article questions of the estimation of proofs from the point of view of the balance between the interested sides of protection and charge are examined. Is revealed the mechanism of a study of proofs from the positions of their reference and permissibility by that by in connection with existing in the doctrine of the criminal process of the theory of the asymmetry of the rules of proovement.

scholarly journals Court Discretion as Part of the Criminal Procedure Paradigm Structure

Legal Concept ◽  
2019 ◽  
pp. 166-173
Author(s):  
Ekaterina Azarova
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Fundamental Rights ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Proceedings ◽  
The Russian Federation ◽  
The Law ◽  
Goals And Objectives

Introduction: the fundamental rights of citizens enshrined in the Constitution are accordingly reflected in the Code of Criminal Procedure of the Russian Federation. For more than fifteen years of the Code of Criminal Procedure application, the legislator has made about three hundred amendments that have increased its ambiguity and inconsistency. The very construct of its provisions is being built and in progress without a planned scientific and theoretical component of such building, without taking into account the empiricism of application. The Code of Criminal Procedure of the RSFSR was used as a constructive basis for the new law, where the stages of criminal process are the fundamental structure of the law. The presence and introduction of new types of judicial proceedings and related institutions as an additional “load” caused the “deflection” of the entire structure of the Criminal Procedure Code, the consequence of which was the increase of unceasing contradictions between the goals and objectives of criminal proceedings, its general conceptual provisions and the criminal process immediate stages. The author sets the purpose of the study, which consists in the justification of contradictions in the law. Methods: the methodological framework consists of the methods of historicism, systematicity, and comparative law. Results: grounded in the work the author’s point of view is based on the knowledge in criminal law. Conclusions: the study revealed that the court discretion is an integral part of the criminal procedure paradigm structure, as the perception by the court of the “truth” of the circumstances to be proved in a criminal case, interpreted by the opposite parties of the adversarial process, is only possible through the prism of assessing these circumstances by the court at its discretion, during the verification of evidence in a particular criminal case.

scholarly journals Problems of using formal means of proof in russian criminal proceedings

2021 ◽  
Vol 7 (1) ◽  
pp. 115-119
Author(s):  
S. V. Mokrushin
Keyword(s):  
Criminal Procedure ◽  
Regulatory Framework ◽  
Point Of View ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Objective Truth ◽  
Characteristic Features

The article deals with the problem of the need to establish the objective truth in a criminal case in the context of consolidation in the criminal and criminal procedure legislation of the norms on the use of formal means of proof along with evidence. The article describes the characteristic features of various types of formal means of proof, reveals their significance in the Russian criminal process, and also highlights the most problematic issues of using formal means of proof to achieve the goals of criminal proceedings. The author suggests approaches to solving this problem from the point of view of achieving a reasonable balance of using the advantages that formal means of proof provide, if necessary, to minimize the negative aspects of their use, taking into account modern means and methods of obtaining evidence. The author substantiates the idea of the need to make changes to the relevant regulatory framework, which should eliminate the existing one at the present time.

scholarly journals Asymmetry in Solar Spectral Lines

1974 ◽  
Vol 3 ◽  
pp. 171-203 ◽  
Author(s):  
C. Magnan ◽  
J. C. Pecker
Keyword(s):  
Velocity Field ◽  
Numerical Experiment ◽  
Point Of View ◽  
Spectral Lines ◽  
Single Line ◽  
The Asymmetry

AbstractAfter reviewing observations of the spectral solar features originated either in the chromospheric layers or in the photospheric layers, from the point of view of the observations, and after having shown the strikingly discrepant set of interpretations that can be found currently in literature, a numerical experiment is performed in a case not too different from the solar case. It is shown that the use of the line bisector to determine, from the asymmetry of a single line, the trend of the velocity field might be considerably misleading, a fact which explains partly the results published in literature.

Execution of a Sentence in the Structure of Criminal Proceedings: Procedural Stage or Special Court Proceedings?

2020 ◽  
Vol 1 ◽  
pp. 97-106
Author(s):  
V. V. Nikolyuk ◽  
◽  
L. A. Pupysheva ◽  
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Self In Relation ◽  
The Supreme Court ◽  
Court Proceedings

The article analyzes the concept of execution of a sentence as an independent stage of the criminal process (the stage of criminal proceedings). Arguments are given that point to its certain illogicality and inconsistency. The authors on the basis of existing legislation and taking into account the positions of Plenum of the Supreme Court additionally reasoned and substantiated the thesis of the existence of the criminal process self in relation to a criminal case of criminal procedure, regulated by Chapter 47 of the Code of criminal procedure.

On Behavioural Asymmetry in Product Liability Law

2021 ◽  
Vol 12 (1) ◽  
pp. 40-64
Author(s):  
Thomas Verheyen
Keyword(s):  
Cognitive Biases ◽  
Product Liability ◽  
Point Of View ◽  
Evidence Based ◽  
European Law ◽  
Consumer Expectations ◽  
Liability Law ◽  
The Asymmetry ◽  
New Criterion

Abstract This theoretical article identifies the asymmetry between the producer and the consumer as the key to understanding product liability law. In an attempt to resolve the endless scholarly and jurisprudential debates on the proper criterion for defectiveness in European law, it first tracks the ways in which the commonly opposed consumer expectations and risk-utility test each fail to address the typical asymmetries between producers and consumers in a satisfying manner. Building upon the concept of ‘behavioural asymmetry’, it then develops a new criterion for defectiveness under European law: the behavioural risk-utility test. Under a behavioural risk-utility test, the producer is liable if the product is not reasonably safe for average users suffering from cognitive biases and other behavioural shortcomings. This test aptly combines the systemic point of view of risk-utility balancing with an evidence-based conception of asymmetry, and therefore provides a meaningful criterion for adjudicating product liability disputes.

The Law and Policy of Police and Prosecutorial Control of Detention in China

2020 ◽  
Vol 21 (1) ◽  
pp. 121-137
Author(s):  
Kuibin Zhu ◽  
David M Siegel
Keyword(s):  
Decision Making ◽  
Policy Change ◽  
Judicial Review ◽  
Criminal Case ◽  
Criminal Process ◽  
Western Countries ◽  
Chinese Law ◽  
Law And Policy ◽  
Defence Counsel ◽  
Police Control

In China, police control of street protests can be accomplished under existing law both directly, through administrative penalties including detention that police can impose on their own authority, and indirectly, through the threat of detention as part of the ordinary criminal process. In the ordinary criminal process Chinese law provides police and prosecutors extensive discretionary authority to detain suspects and defendants for periods of six months or more without judicial review. While the structure of these detention provisions superficially resembles that in Western countries, their operation is wholly subject to internal policies and practices of police and prosecutors. In addition to providing an overview of these provisions, we review here a recent prosecutorial policy change in decision-making on extended detention (dàibǔ, 逮捕) that places the same prosecutor in charge of both this decision and the ultimate presentation of the case. We conclude that this may encourage individual prosecutors to assess their cases more thoroughly and realistically at an earlier stage and may alter the litigation dynamics of detention during the investigative phase, but it does not reduce the threat of detention as a means of deterring protests. At most, the change may provide negotiation opportunities for defence counsel. Until a Chinese criminal case is formally presented to a court, control over detainees remains firmly in the hands of the police and prosecutors.

scholarly journals Is Formal Legal and Objective (Material) Truth Reconcilable in the CCP RF?

2019 ◽  
pp. 61-66
Author(s):  
Gennady Pechnikov ◽  
Vladimir Shinkaruk ◽  
Natalia Solovyova
Keyword(s):  
Russian Federation ◽  
Cognitive Activity ◽  
Point Of View ◽  
Type Model ◽  
Criminal Proceedings ◽  
Philosophical Approach ◽  
Criminal Process ◽  
Objective Truth ◽  
The Russian Federation ◽  
History Of Culture

The article critically evaluates the point of view on the coexistence of formally legal truth and objective (material) truth in today's Criminal Code of the Russian Federation, it also criticizes the position that there are no criteria that clearly distinguishing these truths and that the philosophical approach should not be disseminated on the criminal process, which should be taken autonomously from philosophy. The article defends the point of view that in the present Criminal Procedure Code of the Russian Federation competition is selfsufficient and excludes objective truth. Adversarial criminal process is characterized by formal legal truth, and objective truth requires a fundamentally different type (model) of criminal proceedings - an objectively true criminal process. The authors consider this model of criminal proceedings to be a higher, more perfect and fair type of criminal proceedings, in contrast to the adversarial (winning-losing) type of criminal process, in which the "right and fairness of the strong" prevails.The authors of the article firmly stand on the philosophy of the materialist dialectic; they believe that a philosophical approach is also necessary in the criminal process. In this regard, there are dialectical and non-dialectical (not taking into account the objective laws and rules of dialectics) criminal processes. Relativism of the adversary criminal process, its susceptibility to sophistry are obvious. Therefore, in a competitive duel of the parties, it is important to be more convincing in your arguments than your procedural opponent. We see an objectively-true model of the criminal process as a higher, more perfect and more equitable type of criminal proceedings. The intention of truth and the belief in the ability to prove it give a moral meaning to cognitive activity, whereas indifference to it was perceived throughout the history of culture as a threat to the moral existence of society.

scholarly journals The institution of suspicion and the initial stage of the criminal process: interrelated prospects of development

2021 ◽  
Vol 2021 (4) ◽  
pp. 121-131
Author(s):  
Ol'ga Polikarpova
Keyword(s):  
Criminal Procedure ◽  
Radical Change ◽  
Criminal Case ◽  
Initial Moment ◽  
Criminal Prosecution ◽  
Constitutional Rights ◽  
Kyrgyz Republic ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Initial Stage

The article considers the question of the interdependence of the improvement of the institution of suspicion and the transformation of the initial stage of the Russian criminal process. The article highlights the problem of the legislative limitation of the period of the procedural status of a person as a suspect in the event of a criminal case being initiated not against him, but upon the commission of a crime and insufficient evidence of the involvement/non-involvement of such a person in a criminal offence committed at the initial stage of the investigation, which often does not allow avoiding unreasonable restrictions on the constitutional rights and freedoms of this participant in criminal proceedings. The relevant experience of some post-Soviet states that followed the path of a radical change in the criminal procedure model after the collapse of the USSR is analysed. The article compares the provisions of the criminal procedure legislation of the Russian Federation and the Kyrgyz Republic directly related to the institution of suspicion, including the moment of triggering criminal prosecution and the duration of a suspect’s keeping the specified procedural status. The arguments given in the article substantiate the need to reform the initial moment of the emergence of the procedural status of a suspect in Russian criminal proceedings and the associated expediency of abolishing the stage of initiation of a criminal case in order to increase the guarantee of the rights and legitimate interests of the person introduced into the procedural status we are analysing.

PECULIARITIES OF PARTICIPATION OF DEFENDER IN THE COURT PROCEEDINGS OF CRIMINAL CASE IN THE COURT OF FIRST INSTANCE

2021 ◽  
Author(s):  
Павел Петрович Фантров ◽  
Ярослав Александрович Кузин
Keyword(s):  
Research Topic ◽  
Defense Attorney ◽  
Criminal Case ◽  
Correct Interpretation ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Court Proceedings ◽  
Degree Of Participation ◽  
Court Of First Instance

Актуальность темы исследования обусловлена тем, что немаловажное значение в уголовном судопроизводстве имеет правильное толкование процессуального положения защитника в судебном разбирательстве в суде первой инстанции. В статье охарактеризована степень участия защитника на рассматриваемой стадии уголовного процесса: исследование им доказательств; заявление ходатайств; изложение суду своего мнения по существу обвинения и его доказанности; выступление в судебных прениях. The relevance of research topic lies in the fact that the correct interpretation of procedural position of a defense attorney in court proceedings in the court of first instance is of no small importance in criminal proceedings. The article describes the degree of participation of defense attorney at the considered stage of criminal process: his research of evidence; application of petitions; presenting to the court his opinion on the merits of accusation and it's proof; speech in judicial pleadings.

European Unfairness and American Unconscionability: A Letter From a European Lawyer to American Friends

2019 ◽  
Vol 15 (2) ◽  
pp. 195-226 ◽  
Author(s):  
Anne-Lise Sibony
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Point Of View ◽  
Abuse Of Power ◽  
Consumer Contracts ◽  
The Common ◽  
Similarities And Differences ◽  
The Asymmetry ◽  
Contracting Process

Abstract The Unfair Contract Terms Directive (UCTD) and the Common Law doctrine of unconscionability in the United States both pursue the same aim: they seek to protect consumers against abuse of power by traders who are in a position to exploit the asymmetry of the contracting process. However, both sets of rules rest on different premises. In particular, they allocate trust differently between courts and markets. This accounts for deep-running differences despite apparent similarities. This contribution analyses these similarities and differences by commenting on the unconscionability doctrine as expressed in the Draft Restatement of consumer contracts from a European point of view.

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