scholarly journals AGREEMENTS IN CRIMINAL PROCESSES: PROBLEMS OF APPLICATION AND DEVELOPMENT

2019 ◽  
Vol 7 (3) ◽  
pp. 511-515
Author(s):  
Elena A. Kupryashina ◽  
Anzhelika I. Lyahkova ◽  
Elena F. Lukyanchikova ◽  
Sergey F. Shumilin ◽  
Ekaterina A. Novikova

Purpose of Study: In this paper, institutions of agreements (mediation) in criminal proceedings in various states were investigated regarding the history of their occurrence and development. The aspects under the study included features related to the use of institutions of agreement in individual countries (USA, Canada, Germany, Russia, Moldova, etc.); the regulatory framework of these countries, statistics on the use of institutions of agreements (mediation), as well as programs used as mediation. Methodology: In the present study, general scientific, as well as special methods and provisions of dialectics were used. In the course of the study, private scientific methods were also used including historical-legal, formal-legal, formal-logical, systemic, and comparative. Results: Currently, the new legal institution of agreement (mediation) is actively developing in the global legal system, contributing to resolving the conflict without holding a trial and just by holding peace negotiations and concluding an agreement with the accused. This institution was initially established in countries with the Anglo-Saxon legal system (USA, UK), and then was developed in countries with a continental legal system (RF, Moldavia, Kazakhstan). Implications/Applications: The mediation is considered to be a convenient approach for resolving conflicts, since it is built on the mutual agreement of two confrontational parties, and it will continue to further develop worldwide and will be included in the legislation of those countries where it has not been fixed yet.

Justicia ◽  
2021 ◽  
Vol 26 (39) ◽  
pp. 47-56
Author(s):  
Serhii Yevhenovych Ablamskyi ◽  
Liudmyla Volodymyrivna Havryliuk ◽  
Valentyna Georgievna Drozd ◽  
Olena Volodymyrivna Nenia

Objective: The aim of the article is to analyze the various legal and theoretical provisions related to the determination of legal content of the concept of finding evidence inadmissible due to substantial violation of human rights and freedoms. Method: The authors use general scientific and special methods that enable to obtain scientifically sound conclusions and proposals. In particular, scientific methods, such as dialectical, comparative-legal, system-structural, generalization and logical, are applied. Results: The problematic issues of the procedure for finding evidence inadmissible due to substantial violation of human rights and freedoms in the criminal proceedings of Ukraine are studied. Some essential violations in collecting evidence by the prosecution are under focus. The ECHR’s case-law with regard to procedure for finding evidence inadmissible is analyzed. The implementation of the doctrine of "fruit of the poisonous tree" and specificity of its application to direct and derivative evidence by domestic courts and the case law of the ECHR is considered. Conclusions: The authors argue that the investigator is required to comply with the procedure for investigative actions prescribed by the provisions of the CPC of Ukraine in order to ensure human rights and freedoms. The analysis of the application of provisions of the CPC of Ukraine and the ECHR’s case law regarding the issue raised enables to formulate sound conclusions.


2019 ◽  
Vol 7 (4) ◽  
pp. 1296-1300
Author(s):  
Yuliya V. Boltenkova ◽  
Vladimir S. Sinenko ◽  
Anastasia V. Abramova ◽  
Ludmila N. Menyailo ◽  
Aleksey Yu. Gordeev

Purpose: The article analyzes the concepts used in the institute of compensation for moral damage in Russia and the countries of the Anglo-Saxon law system. Methodology: Various general scientific methods and the methods of logical cognition are used in the work: analysis and synthesis, system-ic, functional and formal-logical approaches. The development of conclusions was facilitated by the application of formal-legal and comparative-legal methods. Result: The article reveals the grounds for compensation for moral damage in Russia, England, and the USA. The author refers to the similarities and differences of the institute of compensation for moral damage in these countries. The conclusion about the need for unification of the institution in various legal systems. Applications: This research can be used for the universities, teachers and education students. Novelty/Originality: In this research, the model of the compensation of moral damage in Russia and the Anglo-Saxon legal system countries is presented in a comprehensive and complete manner.


2021 ◽  
Vol 3 ◽  
pp. 92-98
Author(s):  
O. А. Zaytsev ◽  

The article examines the problematic issues of applying measures to protect the rights and legitimate interests of entrepreneurs in cases of crimes in the field of economic activity. The material-legal and criminal-procedural mechanisms used in the course of proceedings in this category of cases are examined. Special attention is paid to the analysis of the legal positions of the Supreme Court of the Russian Federation, reflected in the decisions of the Plenum of November 15, 2016 № 48 and October 3, 2017 № 33. The purpose of this study is to identify the most acceptable areas of activity of judicial and law enforcement agencies to protect the rights and legitimate interests of entrepreneurs involved in criminal proceedings. The objectives of the study are: a) to determine the specifics of criminal and criminal procedure legislation containing humane mechanisms for the category of cases under consideration; b) to highlight the positions of scientists who conduct research in this field of activity; с) substantiation of recommendations for the further development of criminal policy in the direction of liberalizing the current structure of crimes in conjunction with the improvement of criminal procedural forms of criminal proceedings. The methodological basis of the research was the dialectical method of cognition, General scientific methods of abstraction, analysis and synthesis, as well as special legal methods. Promising ways of development of criminal policy in the field of formation of legislation that allows the most effective protection of the rights and legitimate interests of entrepreneurs are proposed. The conclusion is made about the need for further scientific study of the system of material-legal and criminal-procedural mechanisms used in the proceedings on crimes committed in the sphere of business and other economic activities.


Author(s):  
Elina Sergeevna Sarygina

The research subject is the scientific, organizational and methodical regularities of judicial and examination activities during the research of finance-credit relations. Special attention is given to the key provisions of finance-credit examinations and the peculiarities of their commissioning. The author uses the categories and laws of dialectical and formal logic along with general scientific methods of scientific cognition (observation, description, comparison, systematization, formalization, etc.), and specific methods (comparative-analytical and system-structural). The author also uses the techniques of the interdisciplinary approach since the research requires knowledge in the field of procedural and substantive law, theory of court examination, economics and banking law, which determines the comprehensive nature of the research. From the viewpoint of modern scientific knowledge, the author attempts to analyze court examination as an independent class of judicial economic examinations which includes objects, subclasses, typical tasks and scientific and methodical recommendations for law enforcement officers about commissioning such examinations. The research addresses the main provisions of the subtheory of a judicial finance-credit examination which either haven’t been described sufficiently enough in the scientific works, or haven’t been systematised. The author’s recommendations are aimed at unification of the judicial practice of commissioning and assessment of the results of a judicial finance-credit examination. The formation of a comprehensive idea about this examination and its modern state is necessary for the implementation of its possibilities by an investigator, a court or an inquiry officer within criminal proceedings. The result of the research is the development of recommendations for law enforcement officers about the peculiarities of commissioning of a court tax analysis in governmental and nongovernmental criminal expertise institutions connected with the peculiarities of preparation of research objects and the specificity of issues subject to the consideration of a court expert; the author formulates the list of questions to an expert.


Author(s):  
Irīna Poļevaja

A defence attorney is a significant and notable figure in criminal proceedings who for the whole procedural activity in a criminal case, in theory, should facilitate detecting and correcting possible judicial mistakes. In this respect, it is vital to conduct a series of research in order to highlight prevalent problems and issues of a defence attorney’s participation in criminal trials and to work out relevant recommendations for trial attorneys that would help to forestall, detect and prevent judicial mistakes. A specific condition of a defence attorney’s activity in the process of evidencing at a judicial examination is his awareness of the entire system of evidences presented by the prosecution and accusation conclusions in disputable classification situations. They should rely upon the fact that a judicial examination is performed under circumstances of direct examination of evidence, oral proceedings, publicity, invariability of the body of the court, as well as the fact that both the court and the representatives of the parties take part at the examination. Rather short deadlines of a judicial examination entails working under circumstances when decisions must be taken under extreme conditions, by applying tricks and methods that would allow examining all evidence in the most productive way. It makes sense for a defence attorney to state his activity position and determination of taking an active part in evidencing already at the beginning of court hearings, by filing a motion to summoning new witnesses, experts and specialists, disclosure of material evidence and documents or exclusion of evidence obtained in the way of violating the law. 
The author of the study applied general scientific methods of studying objective reality, peculiar to legal sciences: systematic document analysis, structural-functional analysis, critical approach, generalisation and prediction. As a result, the author provides numerous recommendations and rules for successful and immaculate defence in criminal trials. Aizstāvis ir nozīmīga, ievērojama figūra kriminālprocesā, jo aizstāvja procesuālajai darbībai krimināllietā teorētiski būtu jāatvieglo iespējamo tiesas kļūdu konstatēšana un labošana. Un šajā sakarā ir vitāli svarīgi veikt virkni pētījumu, lai izceltu problēmjautājumus, kas saistīti ar aizstāvja piedalīšanos krimināllietās, un izstrādātu tādas rekomendācijas aizstāvjiem, kas praktiskajā darbībā sekmētu tiesas kļūdu paredzēšanu, konstatēšanu un novēršanu. 
Par specifisku priekšnoteikumu aizstāvja darbībai pierādīšanas procesā tiesas izmeklēšanā ir uzskatāma viņa pilnā informētība par visu pierādījumu sistēmu lietā, kuru piedāvā valsts apsūdzība, un par valsts apsūdzības apsvērumiem strīdus krimināltiesiskās kvalifikācijas gadījumos. Aizstāvim jāņem vērā, ka tiesas izmeklēšana norit pierādījumu tiešas un nepastarpinātas pārbaudes apstākļos, ievērojot mutiskuma, publicitātes un tiesas sastāva nemainīguma principus. Pierādījumu pārbaudē piedalās gan tiesa, gan visi pārējie procesa dalībnieki, kas nav aizstāvības pusē. Likuma prasība ievērot saprātīgus lietas iztiesāšanas termiņus paredz saspringtu darbu, svarīgus lēmumus pieņemot ekstremālos procesuālos apstākļos, izmantojot tādus paņēmienus un metodes, kas veicinātu efektīvu pierādījumu kopuma pārbaudi un novērtēšanu. Aizstāvim būtu ieteicams deklarēt savu aktīvu procesuālo pozīciju un paust gatavību aktīvi piedalīties pierādīšanā jau tiesas izmeklēšanas sākumā, piesakot lūgumus par jauno liecinieku, ekspertu un/vai speciālistu aicināšanu uz tiesas sēdi, kā arī piesakot lūgumus par lietisko pierādījumu un/vai dokumentu pieprasīšanu un par pierādījumu, kas iegūti, pārkāpjot likumu, izslēgšanu no pierādījumu kopuma. 
Šajā pētījumā ir izmantotas vispārīgās zinātniskās metodes, kas sekmē objektīvās realitātes izzināšanu un ir raksturīgas tiesību zinātnei, proti: sistēmiskā dokumentu analīze, strukturāli funkcionālā analīze, kritiskā pieeja, vispārināšana un prognozēšana. Secinājumos tiek piedāvātas vairākas rekomendācijas veiksmīgai, efektīvai un nevainojamai aizstāvībai pirmās instances tiesā.


2020 ◽  
Vol 16 (3) ◽  
pp. 108-119
Author(s):  
Ирина Попова ◽  
Анастасия Иванова

To achieve the purpose of criminal proceedings, law enforcers must have an arsenal of procedural tools in order to ensure the operation of the legal regulation mechanism. The system of principles of criminal proceedings, serving as the basis for the effective operation of the norms of criminal procedure law, includes the adversarial principle. The implementation of this principle has a number of features in pre-trial proceedings. In this aspect, a comparative study of the adversarial principle in national criminal proceedings and in foreign criminal proceedings is of both scientific and practical interest. Purpose: analysis of the adversarial principle at the pre-trial stages in national and foreign criminal proceedings, as an element of the legal regulation mechanism. Methods: dialectic methods as a general scientific method of cognition, as well as specific scientific methods: interpretation method, comparative legal, technical legal, formal logical in their various combinations. Results: the study reveals that the adversarial principle operates in various types of criminal process in the mechanism of legal regulation of Russia and foreign countries. To achieve the social purpose of criminal proceedings, which provides for the protection of rights and legitimate interests, the adversarial principle must be implemented, including at the pre-trial stages of criminal proceedings.


2018 ◽  
Vol 71 (4) ◽  
pp. 55-59
Author(s):  
K. D. Zaiats

The subjects of the study are the problems that arise at the initial stage of the investigation of street fraud, the study is the individual problems of pre-trial investigation of street fraud and the ways of their solution. The study aims to highlight the most common problems in practice at the initial stage of the investigation of this group of fraud, and presents recommendations for their solution. In the course of time, general scientific methods of cognition were used. The relevance of the research topic is that the main problems of investigators arise at the stage of the decision to open criminal proceedings. Difficulties are related to the fact that the investigator needs to take a key procedural decision based on the analysis of very limited information about the event. In addition, in the context of open criminal proceedings, it is very difficult to form a system of evidence of the existence of a criminal intention in the actions of a fraudsters. Indeed, unlike other crimes, they are reflected not so much in material traces as in acts of intellectual nature: the reporting of false information, the use of fictitious documents, specific attributes, and many others. Gathering evidence of such an order requires an extraordinary level of professionalism. The investigator should not only have a high level of knowledge of the existing criminal and criminal procedural legislation, but also be aware of ways to overcome the main difficulties encountered in criminal proceedings on fraud. The novelty of the results is that the research in this direction was conducted for the first time. The main results of the study are given a number of typical problems of investigation of street fraud, as well as recommendations for their overcoming. The results of the study can be used in the field of the criminal law cycle. The practical significance lies in the possibility of introducing the results of the research into the educational process in the presentation of the discipline “The method of investigation of crimes”, special courses, as well as in raising the skills of practical police officers. As a result of the study, conclusions were drawn in the form of concrete proposals for addressing typical problems arising in the investigation of street fraud.


Author(s):  
Galina Panchishnaya

One of the acute problems that have a significant impact on the effectiveness of criminal proceedings is the problem of unlawful influence on the witness and the victim. The disclosure and investigation of the aforementioned criminal offenses is increasingly accompanied by active opposition from interested persons who commit unlawful acts against the witness and the victim, accompanied by particular cruelty and cynicism. Bringing these persons to criminal responsibility is often hampered by the pressure exerted on the witness and the victim in the form of bribery and coercion to give false testimony. Revealing bribery and coercion of a witness and a victim to give false testimony for operational-search science and practice is a significant problem, the solution of which mainly involves the involvement of forces and means of operational units of the internal affairs bodies. It is quite logical that the study of crimes, carried out from the standpoint of the operational-search science, presupposes the formation of the operational-search characteristics of the considered category of crimes. The purpose of this study is a comprehensive scientific development of the main elements and the concept of operational-search characteristics of bribery and coercion of a witness and a victim to give false evidence. To achieve the intended goal, the author needs to solve the following tasks: to analyze the concept of the operational-search characteristics of crimes, to determine its main elements; to summarize and analyze the operational-investigative practice of bribery and coercion of a witness and a victim to give false testimony; analyze generalized data on the most typical operatively significant signs of a crime in the category under consideration. The study is based on the use of general scientific techniques and methods (logical-legal, systems approach, analysis, synthesis, etc.) and specific scientific methods (polling, questionnaires, content analysis of documents, interviewing, comparative analysis, etc.). The theoretical significance of the study lies in the fact that by studying the features of the operationalsearch characteristics of bribery and coercion of a witness and a victim to give false testimony, the author can make a certain contribution to the development of the theory of operational-search activity.


2019 ◽  
pp. 107-113
Author(s):  
A. E. Gavrilov ◽  
E. A. Zhukov

Aim. The presented study aims to examine, analyze, and systematize scientific knowledge in the field of infrastructure systems for the formation of conditions for creating competitive modern enterprises based on IT technologies.Tasks. The authors define the concept of innovation infrastructure; analyze the external and internal environment of providing a competitive infrastructure for business structures; determine the specific aspects of the formation of theoretical foundations of infrastructure support for the competitiveness of business structures; examine the potential for the digitalization of the economy in the infrastructure support for the creation of competitiveness of business structures.Methods. This study uses general scientific methods of cognition to critically analyze modern mechanisms of infrastructure support for the competitive advantages of innovation-oriented business structures.Results. External institutions participating in the innovation process in Russia are examined and typified. Their specific features are identified, and the history of their formation and role in the infrastructure are described. The concept of infrastructure support is examined. A correlation between innovation infrastructure and the creation of the competitive advantages of business structures is established.Conclusions. Based on the examined materials, the authors describe the prospects of using modern information technologies in the design of infrastructure for innovative projects. The study provides recommendations for the transformation of competitiveness support institutions and modernization of the management of the internal elements of innovative business infrastructure in the context of the digitalization of the economy. The authors create prerequisites for the development of an advanced digital application that would combine and balance a lot of data and aspects of infrastructure support for the competitiveness of business structures, improving the efficiency of development of innovative projects, their implementation, and management of business structure competitiveness.


2021 ◽  
Vol 17 (2) ◽  
pp. 118-129
Author(s):  
Tatiana A. Abramova

Introduction. 2021 marks the 110th anniversary of the birth of one of the outstanding scientists of the Mordovia State University, doctor of historical sciences, professor A.V. Kleyankin. The purpose of the study is to evaluate his scientific contribution to the development of historical science and local lore of the Republic of Mordovia and the Volga region. Research Methods. The research is based on the biographical method. The use of general scientific methods made it possible to present the problem under study as a process within the framework of a concrete historical situation, the tasks to be solved, and to analyze the essence and content of A. V. Kleyankin’s scientific and pedagogical activities. The article introduces the materials of the archives of Ogarev Mordovia State University and the Central State University of the Republic of Mordovia, and uses the documents of electronic resources. Results and Discussion. The article is dedicated to the memory of Professor Alexey Vasilyevich Kleyankin of Ogarev Mordovia State University. The study provides biographical information about the scientist, presents the scientific and educational activities of the scientist-historian, focuses on the main scientific works. Conclusion. The contribution of A.V. Kleyankin to the history of the region is significant and not forgotten. A. V. Kleyankin devoted his entire life to science. From 1971 until the last days of his life, he worked at the Mordovia State University, was listed in the Book of Honor of the Mordovia State University, was awarded a Certificate of Honor by the Ministry of Higher and Secondary Special Education of the RSFSR, and became an Honored Scientist of the Mordovian ASSR. His role as a researcher and representative of the school of economic history is important. A.V. Kleyankin is the author of dozens of works on the economic history of the Amur region, the Volga – Oka interfluve, and the Volga region.


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