Vol 5, No 2 (2023)

L’étude du sujet « Emanation du droit » qui est pratiquement inexploré dans la littérature spécialisée moderne, a permis de formuler les conclusions suivantes.

Première conclusion : l’émanation du droit est définie comme le processus du développement du droit à partir des coutumes juridiques vers les contrats civils, à l’issue duquel il est possible d’atteindre un degré plus élevé de la certitude juridique et des pratiques d’application de la loi, et surtout, la protection au maximum efficace des droits et libertés des sujets des rapports juridiques, tandis que le « maillon initial » en est représenté par les principes du droit généraux (fondamentaux) et spéciaux qui existent objectivement.

Deuxième conclusion : le « centre », le « degré » de l’émanation du droit, le « centre du cercle » sont les principes généraux (fondamentaux) et spéciaux du droit qui existent objectivement et qui l’unissent à la « périphérie du cercle », – les normes juridiques assurant l’unité intrinsèque et extrinsèque du système des formes du droit.

Troisième conclusion : les « degrés » des formes d’émanation du droit sont distingués: les coutumes juridiques → les textes législatifs → les contrats civils provenant de différentes sources et contenant des régulateurs juridiques des rapports juridiques – les principes du droit généraux (fondamentaux) et spéciaux et les normes juridiques.

Quatrième conclusion : les catégories juridiques « évolution du droit » et « émanation du droit » sont différenciées.

Cinquème conclusion : le développement du droit dans le monde se produit sous « formes » d’émanation du droit et d’évolution du droit.

Introduction. The article is devoted to the study of the development of one of the most important institutions of criminal law – the fight against crimes contrary justice in the Russian Empire of the XVIII – early XX century. The authors paid special attention to crimes during the inquiry and preliminary investigation, since it was at this stage that the evidentiary basis for considering the case in court was laid, and such crimes were the most socially dangerous. Undoubtedly, this was also realized by the legislators, who established very strict penalties for these types of crimes.

Theoretical Basis. Methods. In the course of the study, the points of view of domestic and foreign authors, both modern and those who created their works during the studied periods, are involved. The dialectical method was used in the study, which allowed using the categories of necessary and accidental to trace the development of punishment for perjury. The system-structural method was applied, which made it possible to clarify the classification of crimes against justice proposed by Yu. I. Kuleshov, as well as other general scientific (analysis, synthesis, induction, deduction, analogy, modeling) and private scientific methods of cognition (formal-legal, historical-legal, comparative-legal).

Results. The author reveals a change in the legislator’s view on some elements of crimes with the general continuity of the process of development of criminal law as a whole and the specific institution of combating crimes against justice. The study made it possible to conclude that the protection of the legal interests of justice, despite the fact that the articles were not combined into one section, was perceived by the legislator as an object of independent criminal legal protection.

Discussion and Conclusion. The study gives grounds to conclude that the level of legal technique of the period under study is high. The dispersal of the elements of crimes against justice indicates that the protection of the interests of justice was perceived by the legislator as an object of independent criminal law protection.

Introduction. This study is devoted to the analysis of the features of the legal protection of some World Heritage sites in South America. At the beginning of the work, the authors highlight the issues of legal regulation of the protection of World heritage sites, noting the high role of international acts, as well as the norms of international soft law. Particular attention is paid to the norms of national legislation, which ensures the use of the best international experience in the implementation of measures for the protection of world heritage in individual States. The subject of the study is foreign and domestic approaches to the implementation of the provisions of the Convention on the Protection of the World Cultural and Natural Heritage by Brazil.

Theoretical Basis. Methods. The paper uses methods of comparative legal research of approaches to the legal regulation of the World Natural Heritage sites of South America and Lake Baikal. A comparative analysis of the problems of protecting unique ecosystems in Brazil and Russia and an assessment of the possibility of using some foreign regulatory and organizational solutions in Russian legal reality is carried out.

Special attention was paid to the analysis of formal signs of outstanding universal value and their reflection in the description of the object when it is included in the World Heritage List.

The main empirical basis of the study was the decisions of the World Heritage Committee and documents prepared by the International Union for Conservation of Nature, as an advisory body of the Committee.

Results. The authors note that one of the directions of improving the national legislation on the protection of World Heritage sites is the detailed internal zoning of these territories according to the “mosaic” principle. Based on the analysis of Russian and foreign practice, the conclusion is formulated about the inadmissibility of changing the boundaries of World Heritage sites using exclusively the norms of national legislation. The problem of acoustic pollution of unique natural objects, rarely covered in Russian literature, is considered, attention is drawn to the need to comply with the requirements provided for by the Convention, the Guidelines and the legal positions of the World Heritage Committee.

Discussion and Conclusion. Based on the conducted research, the reasons for some problematic aspects of the legal protection of unique natural objects of South America in comparison with the legal protection of Lake Baikal are highlighted. The authors formulate proposals to improve the regulatory regulation of relations related to the protection of the World natural heritage at the national and international levels.

Introduction. The collegium (jury) of jurors in many countries of the world is the only form of popular representation. The admission of citizens to participate in the consideration and resolution (of the legal and/or factual side) of a criminal case means both the trust of the state in its people, and the responsibility of the state for ensuring the maximum possible (taking into account the achievements of modern legal science) conditions for the impartial participation of jurors. There are many areas of research on jury trials. However, a number of problems present in the consideration by the jury in domestic criminal proceedings remain without proper study. So, for example, in the matter of ensuring the impartiality of jurors, such a factor as the previous experience of participating as a juror, is rather imperceptible for domestic researchers, but essential for foreign scientists.

Theoretical Basis. Methods. Based on the work of some foreign scientists, the study analyzes the conditions that ensure the impartiality of jurors, which makes it possible to correct ideas about the causes of certain trends in the practical activities of jurors and make judgments about possible directions for optimizing the formation of jurors in domestic criminal proceedings.

The рurpose of this study is to study the factors for ensuring the impartiality of jurors through a comparative legal analysis and generalization of the views of scientists from various European countries and the United States.

The objectives of the research are: studying and summarizing foreign experience in practical implementation, specific features and results of scientific research of the court with the participation of jurors, identifying the features of various foreign models of the jury, their differences from the Russian model of the jury, including, in issues of building a collegium and ensuring the impartiality of jurors in accordance with the specifics of criminal proceedings.

Methods: dialectical, analysis, synthesis, generalization, formal legal, comparative legal.

Results:

1. The impartiality of jurors is a fundamental, fundamentally significant rule, the implementation of which is the existential basis of this form of popular representation. Failure to ensure the impartiality of jurors in criminal proceedings not only reduces the effectiveness of their functioning, but deprives them of the possibility of a fair resolution of a criminal case, and therefore, the meaning of a jury trial is lost.
2. Ensuring the impartiality of jurors is in the plane of both procedural prescriptions and includes procedural rules for the selection of candidates for the collegium, its formation, and goes beyond the scope of criminal proceedings, affecting representative aspects (relevance of the selection of citizens in the number of candidates for jurors), psychological characteristics of citizens members of the jury, whether or not they have previous experience as jurors, the number and frequency of this mission.

Discussion and Conclusion. Based on the results of research by foreign scientists, great importance in determining the direct means of ensuring the impartiality of the entire collegium is given to the quantitative and qualitative composition of the jury. This aspect in the domestic science of the criminal process has not yet been sufficiently developed, although it seems that the trends indicated by foreign colleagues can also be traced in the jury trial in Russia. We believe that in this part it is necessary to intensify scientific research.

Introduction. The special attention of the legislator and the scientific community to the institution of reduced trial with the consent of the accused with the charge, the change in judicial practice required an answer to a number of topical questions. The main purpose of the article is to analyze the emerging judicial practice of implementing a special procedure for making a court decision in criminal cases in terms of compliance with the purpose and fundamental principles of criminal proceedings. The tasks are to identify the normative and actual reasons for changing judicial practice, to develop author’s proposals for optimizing the norms of Chapter 40 of the Code of Criminal Procedure of the Russian Federation and law enforcement practice.

Methods. The methodology of the scientific article is represented by general scientific methods of cognition: analysis, synthesis, as well as comparative legal and system-logical methods.

Results. The concern about the high likelihood of bringing to justice persons innocent of committing a crime is refuted, due to the lack of a correlation between the number of cases considered in a special order and the statistics on the imposition of acquittals. The reduction of dispositive principles during criminal proceedings is recorded, and the rejection of trends in simplifying the procedural form, and from the planned trends in optimizing judicial activities.

Discussion and Conclusion. The author’s position is expressed on a “experiment” that is not quite successful and does not meet modern realities to abandon special order in practice and the importance of continuing to reform the norms of the Code of Criminal Procedure of the Russian Federation in order to comply with the principles of criminal proceedings and its appointment, as well as to adequately respond to modern challenges.

Introduction. The article describes doctrinal approaches to the definition of the term “quasi-sovereign” in relation to such concepts as “quasi-sovereign debt” and “quasi-sovereign entity”, as well as the practice of debt settlement of entities that have a separate legal personality from the state, but maintaining a stable economic and legal relationship with it.

Theoretical Basis. Methods. The theoretical basis of the study is doctrinal sources and law enforcement practice in the settlement of international debt obligations. The article provides an analysis of doctrinal approaches to the definition of the essence of “quasi-sovereign” subjects of international debt relations, as well as international treaties, judicial practice. During the study general scientific and special methods of cognition of the subject were used: formal-legal, comparative-legal, historical-legal.

Results. In modern theoretical sources devoted to the settlement of external debt obligations of states, such terms as “quasi-sovereign debt” and “quasi-sovereign borrower” are periodically encountered. At the same time the exact definition of these terms neither in the scientific literature, nor in the regulations is not given. Based on the linguistic and logical interpretation of the word “quasi-sovereign”, it can be concluded that it applies to the subjects of debt legal relations distinct from the state, carrying out external borrowings, but at the same time the state has a stable functional relationship with such subjects. The analysis of the doctrinal and practical material made it possible, firstly, to identify the necessary features of the subjects under consideration, and, secondly, to establish the appropriate criteria for the category of such credit and debt relations, since the qualification of a public relation as a “quasi-sovereign” is determined by precisely the specific character present on the side of the subject.

Discussion and Conclusion. Based on the analysis carried out, it can be concluded that in the system of international credit and debt relations, along with sovereign and private participants, there is a special group of borrowers with an independent legal status, but at the same time closely associated with the state. Thus, the restructuring of the debt obligations of such a group of borrowers often becomes impossible without the participation of the state.