No 5 (2024)

This article analyses the concept of miscarriage of justice in the context of disciplinary responsibility of judges. In the first part of the article the author proves the necessity and inevitability of judicial discretion as a tool to ensure the consistency of legal regulation, and also raises the problem of the limits of judicial discretion. It is argued that disciplinary measures should be applied only in exceptional cases, otherwise the independence of the judge will not be ensured. With this in mind, the second part of the article defines the relationship between the concepts of “disciplinary offence” and “miscarriage of justice”. The provisions of the Law of the Russian Federation “On the Status of Judges in the Russian Federation” as well as legal positions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation devoted to this issue are considered in a theoretical-legal and historical-legal key. On the basis of their analysis, the author distinguishes between ordinary and gross miscarriages of justice. The final part of the article examines the objective and subjective sides of a miscarriage of justice and proposes the attributes, if any, which may be grounds for bringing a judge to disciplinary responsibility. Particular attention is paid to analysing the sign of systematicity, which is often used in judicial practice. The definition of a miscarriage of justice is formulated, which is proposed to be enshrined in Article 12.1 of the Law of the Russian Federation “On the Status of Judges in the Russian Federation”.

The article discusses problematic issues about the ratio of the categories “specialty” and “enlarged group of specialties” for the purpose of determining how to overcome the educational qualification for candidates for the position of judge. The author raises the question of the existence of discriminatory, unconstitutional requirements for the indication of the specialty “Jurisprudence” as a prerequisite for education by candidates for the position of judge, regardless of the fact that the lawyer qualification can be obtained by completing educational programs in other specialties. In addition, the article draws attention to the requirements for candidates for the position of judge in international courts.

The article also discusses the inadmissibility of incorporation of organizational and functional requirements of by-laws into federal laws. Based on the analysis of the current Russian legislation regulating the organization of personnel policy in related fields, taking into account international standards.

This article is devoted to the legal issues of the implementation of special economic measures in relation to bank accounts. The article covers legal issues related to the implementation of mandatory control in the field of opening and maintaining bank accounts of type “C”. The author analyzes the legal issues arising during the implementation of customer identification procedures and reporting to Rosfinmonitoring about operations subject to mandatory control under AML/CFT/FPWMD. Separately, the issues of foreclosure on funds on type “C” accounts in the framework of enforcement proceedings are considered. According to the author, the establishment of the legal regime of the type “C” account based on the decision of the Board of Directors of the Bank of Russia does not entail legal restrictions on the recovery of funds from these accounts in the framework of enforcement proceedings. In conclusion, the author suggests considering the absence of law enforcement and judicial practice, the lack of operational official explanations from authorized bodies, potential contradictions in the provisions of regulatory legal acts of various public authorities as a circumstance mitigating the responsibility of individuals and companies within the framework of compliance with special economic measures.

The article analyzes judicial practice on the issue of establishing the external identity of claims in the arbitration process. The objectives of the article are to familiarize the reader with the positions of arbitration courts regarding the issue under consideration, to comprehend theoretical views on understanding the external identity of claims and to identify the correct approaches to the issue under consideration, allowing to avoid errors in law enforcement.

To achieve this goal, the historical method was mainly used, as well as methods of comparison and analysis.

As a result of the study, general conclusions were formulated. 1. Under the disputing persons in paragraph 2 of part 1 of Art. 127.1 Arbitration Procedure Code of the Russian Federation and clause 1, part 1, Аrt. 150 of the Arbitration Procedure Code of the Russian Federation refers to the parties (plaintiff and defendant). Thus, the participation of a third party who does not make an independent claim in one of the identical disputes does not violate external identity. 2. External identity in the arbitration process is preserved when the procedural position of the parties changes, namely, that the former defendant becomes the plaintiff, and the former plaintiff becomes the defendant. 3. Not every change in the elements of a claim in the arbitration process will mean a violation of external identity, because identity is not equality. 4. It is necessary at the legislative level to provide the plaintiff with the opportunity to declare all competitive claims in one statement of claim, indicating the main (priority) and optional claims. The implementation of this approach will contribute to the real protection of the rights of entrepreneurs and will allow the court to significantly save the time required to consider such claims. 5. If the circumstances and evidence indicated in the second, identical claim are changed, supplemented, clarified or corrected to the extent that a new cause of action is created, then a change in the cause of action and a violation of external identity should be recognized.

The author, based on an analysis of the norms of legislation governing the legal protection of means of individualization, which are used in economic circulation to individualize subjects and their products, comes to the conclusion that, depending on the goals of the subjects, the legal protection of means of individualization has objective differences that not everyone finds. reflected in the legislation, but they should be taken into account when resolving disputes.

Purpose of the study. Reveal differences in the legal protection of means of individualization, depending on the scope and purpose of the activities of economic entities in order to take them into account when resolving disputes.

Methods: a set of dialectical and system research methods. The general scientific method (systemic, logical) and the specially legal method (formal-legal), as well as the analysis of sources and literature on this issue, were used.

Results. When resolving disputes regarding means of individualization, one should take into account the scope and purpose of the activity of an economic entity that applies its right to a means of individualization: the competitive scope of application of the means of individualization by commercial legal entities and the non-competitive scope of activities of non-profit organizations (NPOs). The protection of an NPO’s trademark right as a means to individualize an entity’s activities and products should apply only to their products, and not to prohibit another NPO from using the name. To citizens, including self-employed citizens, holders of the right to trademarks, similar rules should be applied as to entities using means of individualization in a non-competitive field of activity. The name of the NPO according to the function performed should be recognized as the same means of individualization as the company name. The difference lies in the nature of the established right: a non-property civil right to a name that an NPO has the right to use exclusively in front of other NPOs. The right to a name extends to the same (identical) name, in contrast to the exclusive right to a trade name and trademark, which extends not only to an identical, but also to a designation confusingly similar to it.

The legal facts with which the criminal law connects the release from punishment may arise both in situations where the perpetrator has not yet been sentenced or has not yet begun serving the sentence, and in situations where part of the sentence imposed by the convicted has been served. At the same time, the criminal-legal consequences caused by them are heterogeneous, some facts entail full or partial, others – final or inconclusive, others – conditional or unconditional release from punishment. Considering the importance and diversity of the criminal legal consequences of release from punishment, as well as the prevalence of the use of this institution in practice, there is a theoretical and practical need to study the mechanism of influence of specific grounds for exemption from punishment on the development of protective criminal legal relations.

In this regard, the issue of repayment and removal of a criminal record upon release from punishment is particularly problematic and debatable. In this article, on the basis of general scientific and private scientific methods of cognition (analysis, synthesis, classification; system-structural, formal-logical), the types of exemption from punishment under the current criminal law are identified and the mechanism of their influence on the dynamics of protective criminal law relations is disclosed.

The transformation of doctrinal views on the problem of jurisdictional immunity of a foreign state as an independent subject of scientific research is currently particularly relevant, given not only the qualitative change in the participation of public actors in cross-border private law relations, but also global digitalization and the modern geopolitical situation, suggesting the need to protect national interests in the field of international trade.

The objectives of this study are to analyze the institution of jurisdictional immunity of the state as a participant in cross-border private law relations, which involves the consistent solution of the following tasks: to present a retrospective of the formation of ideas about the complete inviolability of a foreign state from internal legal procedural actions; to analyze the causes and development of the idea of the need to limit the jurisdictional immunity of the state; to investigate the approaches to solving this issue that existed in the domestic doctrine at different stages of the existence of the Russian state; to study modern views on this issue, reflected in international normative acts and judicial practice.

The methodological basis of the research consists of such general scientific dialectical methods of cognition as ascent from the abstract to the whole, comparison, analysis and synthesis, deduction and induction, etc. A number of special scientific methods are also used: descriptive, comparative legal, systemic, historical-legal, formal-legal and others.

According to the results of the study, it can be concluded that the evolution of the legal concept reflected in the judicial practice of national and international judicial institutions illustrates a gradual departure from the idea of jurisdictional immunity of the state in its absolute understanding in favor of a limited one, and in recent years the tendency to expand the list of cases when the state cannot invoke the existence of immunity from the jurisdiction of another state. An innovation in this area, which certainly has a solid conceptual basis and serious prospects for further development, can be considered the denial of immunity on grounds of public order for the protection of human rights. At the same time, in the near future, the growing conflict between the constitutional (internal) law of the state and international norms will require its resolution.