Соотношение понятий «отказ от субъективного права» и «ограничение права» в российском уголовном процессе

Abstract

Relevance. In domestic legal science in general, and in the theory of criminal procedure in particular, there is no unity of views on the relationship between the concepts of "restriction of rights" and "waiver of rights". Meanwhile, the study of the issue of conjugation of these concepts is important, because in the conditions of the initially unequal position of the individual and the state represented by officials and bodies, the possibility of using coercion by them, which is especially clearly manifested in the field of criminal proceedings, the confusion of these concepts and their unjustified substitution are fraught with illegal infringement of the rights and freedoms of the individual, possible abuses by officials conducting criminal proceedings. These circumstances necessitate a scientific understanding of the problem of the relationship between the restriction of the rights and freedoms of the individual and the rejection of subjective rights. Purpose - to study the relationship between the concepts of "restriction of rights" and "waiver of rights" in the domestic doctrine of criminal procedure law. Objective. To achieve the stated goal, the authors study the concept of limitation of law and refusal of subjective law in criminal proceedings, which are available in the domestic doctrine of law, based on the signs of these two legal phenomena, and identify their relationship. Methodology. The research is based on the universal dialectical method of scientific knowledge and general scientific methods based on it (analysis, synthesis, induction, deduction), as well as specific scientific methods of cognition (formal-logical, formal-legal, etc.). Results. Authors formulated the concepts of "restriction of rights in criminal procedure " and "waiver of rights in criminal procedure". Conclusion. Restriction of rights and waiver of rights are independent legal phenomena that have different legal nature and purpose.