Pre-trial Procedure Research Articles

К вопросу об оценке показаний подозреваемого, обвиняемого в российском уголовном процессе

The paper critically evaluates the practice in the Russian criminal procedure when the pre-trial evidence of a suspect or accused beyond volition is included in the body of evidence and used when proving guilt. Having analyzed the factors influencing the estimation of evidence of a suspect or accused, the authors criticize the “double standard” established by law, which is used when evaluating evidence obtained in the presence of a defense lawyer or without one’s participation. The paper proves that the existing legal regulation enshrines different extent of procedural possibilities for the defense by an accused person of one’s interests defined by the presence or absence of a defense lawyer in the pre-trial procedure. Paradoxical as it may sound, when defending interests, the maximum damage is inflicted on those convicted who used the assistance of a defense lawyer during the pre-trial procedure. Having studied the Russian and international practice of evaluating the evidence of a suspect or accused and analyzed current Russian legislation, the authors identified the existing contradictions and proved the necessity to improve the Russian Federation Code of criminal procedure in terms of excluding the statements, which allow using the evidence not confirmed by an accused person given in the presence of a defender. Taking into account that the main disputes occur when evaluating so-called “admissions” of suspects or accused persons, the authors pay special attention to the study of this problem, including in the context of “the fruit of the poisonous tree” scientific doctrine recognized in Russia. The authors see the way out of the current contradiction in the leveling of the relevance of evidence of a suspect or accused in the cases when a suspect does not confirm it in court, regardless of whether a defender participated or not in an investigative interview.

Actual problems of the state and settlement of conflicts between patients and medical organizations in the tyumen region

The number of complaints from patients and their legal representatives related to the quality of medical services is steadily increasing. Shortcomings of medical care, including in the Tyumen region, are associated with organizational, therapeutic measures, registration of medical documentation, violation of ethics and deontology. To protect their rights in the field of health protection, citizens use various mechanisms, including pre-trial and judicial. Settlement of disputes between patients and medical organizations in a pre-trial manner makes it possible to relieve the courts, and the parties to the conflict to protect their rights. One of the effective ways to resolve disputes is a pre-trial procedure with the participation of an intermediary.

ТРАНСФОРМАЦІЙНІ ЗМІНИ РОЛІ ДЕРЖАВИ В КОНТЕКСТІ ПОДОЛАННЯ КОНФЛІКТІВ У ПРАВІ

The purpose of the study is to determine the main vectors of the transformation of the role of the state in the process of overcoming conflicts in law. Such scientific approaches as axiological, anthropological, synergistic, hermeneutic and communicative become important in the research process. The basis of worldview perception of scientific research are the philosophical methods of research, and dialectical, metaphysical, and idealistic methods play a decisive role among them. The system of special scientific research methods consists of: systemic, structural and functional, comparative, communicative and formal and logical. The proposed scientific study is devoted to the vectors of transformation of a state activity in the process of overcoming legal conflicts. Legal conflicts become a determining factor in the political, economic and social life of the modern states. Sometimes the life and fate of a person, a group of people or the entire state depends on the dynamism of legal conflicts, their scope of outspread, level of aggravation, subject composition and duration. That is why the study of the nature, essence and structure of legal conflicts and ways of overcoming them is of great practical importance in choosing comfortable and legitimate ways for the state to overcome them within its functional purpose. However, the priority direction of an activity of the state in the field of overcoming legal conflicts is the possibility of finding legal ways to prevent them. Such a result can be achieved only with the help of those legal means that exist in the state and with the help of which the mediator can conduct activities, the ultimate goal of which is a voluntary and fair decision. That is why an important mission is on the state – the acceptance and consolidation of relevant normative legal acts at the legislative level, which would become an alternative on the way to minimizing the resolution of legal conflicts through the courts. The introduction and further formation of the institution of mediation as an intermediate procedure in relation to the judicial form of overcoming of legal conflicts is important in this direction. Mediation helps the parties to avoid the escalation of the conflict and reach a resolution of the dispute, the result of which will satisfy both parties, relieving the court system during that period, as the resolution of conflicts in a pre-trial procedure will lead to a decrease in the number of cases that come to court. Conclusions: 1. The role and purpose of the state are manifested in the essential characteristics of the state, its social purpose as an organization that is able to and can solve various problems that arise in modern society. 2. Legal conflict can be considered as a type of social conflict, which is determined by a special sphere of existence – legal and characterized by two-way communication between subjects, arises on the basis of existing legal contradictions and is overcome with the help of legal means. 3. The legal aspect of the manifestation of conflict at the state level can act both as an object over which a conflict situation arises, and as a means by which it is possible to prevent and overcome such a conflict. 4. On the one hand, the state is viewed as an institution that is able and can resolve legal conflicts with the help of a number of legal means, and that reflects a positive aspect of the activity of the state. On the other hand, the state in the form of authorized bodies can become an organization that provokes the emergence of a legal conflict and is simultaneously a participant in it. 5. The direction of public bilateral coordination of the interests of subjects with the aim of establishing the common good becomes a priority, where the role of the state in such a process is mostly reduced to its essential model as an arbiter state. 6. The introduction of the institution of mediation (restorative justice, out-of-court procedure) and its consolidation at the regulatory level becomes an alternative or intermediate procedure in relation to the judicial form of overcoming of legal conflicts.

Accelerated Pre-Trial Proceedings in the Russian Criminal Process: Formation of Optimal Models

Introduction. In modern conditions of optimisation of criminal proceedings and improvement of its efficiency, it is very important to analyse various models of accelerated pre-trial proceedings in criminal cases of minor and moderate crimes. Theoretical Basis. Methods. The object of the study is the criminal procedural legal relations that arise, change and terminate in connection with the use of accelerated procedural models in the course of pre-trial proceedings in criminal cases. The methodological basis of the research is the general dialectical method of scientific cognition, which made it possible to study the subject of research in relation to other legal phenomena, as well as general scientific methods of cognition (analysis, synthesis, induction, deduction, analogy, modeling) and private scientific methods of cognition (formal legal, historical-legal, comparative-legal, and concrete-sociological. Results. The author came to the conclusion that the accelerated criminal procedure procedures, depending on the totality of their procedural elements, can be conditionally divided into general, conciliatory (compromise) and protocol procedures. The criteria for differentiating models of accelerated pre-trial proceedings are criminal law, criminal procedure, organisational and criminological. The structure of the criminal law criterion consists of the category and severity of the crime committed. The content of the criminal procedure criterion is the discretionary powers of authorised officials to carry out an investigation in a particular accelerated pre-trial procedure, the will of the participants in the criminal process, and the reduction of the proof process. This latter point may include and in different ways combine, elements to narrow the subject of proof, reduce the duty of proof, correct the stage of verification of evidence and limit the means of proof. Organisational differentiation criterion determines, first, the corresponding accelerated pre-trial opportunity for establishment of circumstances, (subject to proof), and secondly, the benefits of these industries to focus on the investigation of more complex and socially dangerous crimes. The criminological criterion of differentiation is characterised by the characteristics of the personality of the person subject to criminal prosecution and the victim and determines the possibility of applying a particular accelerated pre-trial procedure, taking into account these properties. Accelerated forms of pre-trial proceedings are basically based on various methods of speeding up the process of criminal trial. These methods can be conditionally defined as general and special. The general method of speeding up pre-trial proceedings is characterised by a reduction in the duration of the investigation, as well as the removal of certain investigative and procedural actions from the procedure of procedural regulation. The special method involves speeding up pre-trial proceedings in order to reduce the process of proof, which includes narrowing of the subject of proof, reducing the duty of proof, correcting the stage of verification of evidence and limiting the means of proof. Discussion and Conclusion. The effective organisation of Russian accelerated pre-trial proceedings can be ensured through the implementation of three procedural models: Firstly, inquiry in the general order; Secondly, inquiry in the abbreviated form, (which is based on the positive post-criminal behavior of the person who committed the crime); Thirdly, protocol pre-trial proceedings, which is used in cases of minor crimes committed in conditions of evidence.

К ВОПРОСУ О ДОСУДЕБНОМ УРЕГУЛИРОВАНИИ НАЛОГОВЫХ СПОРОВ

In the article, the author analyzes the features of pre-trial settlement of tax disputes in Russia. The problems that reduce the use of the pre-trial procedure are analyzed, as well as proposals are formulated for improving the legal regulation of the pre-trial procedure for the settlement of tax disputes. Particular attention is paid to the institution of tax mediation.

Problematic aspects of the pre-trial procedure for consideration and resolution of labor disputes

Problematic aspects of the pre-trial procedure for consideration and resolution of labor disputes

LEGAL AND TELEOLOGICAL ASPECTS OF THE PROTECTIVE FUNCTION OF PROCEDURAL NORMS OF SOCIAL INSURANCE

Determining the protective function of the norms of the pre-trial procedure in cases of pension and retirement benefits based on the aim and scope of the norms is not only possible but also necessary for a wider understanding of social insurance. The legal and teleological context plays the role of a determinant of the aim of a legal norm desired by the legislator and allows for the indication of exemplary institutions which, established by the legislator, perform a protective function. When norms are being examined through the prism of the psychological theory of law they show that social security law is a psychological phenomenon and should be subjected to a multidimensional study that will reveal the intended aim of the legislator. The protective function is also performed by a specific procedure model with the precisely defined boundaries of the function. From the sociological perspective, an undesirable goal is also important, unintended by the legislator, which is caused by the norms fulfilling the protective function, and which is visible from the conducted analysis.

Examination and Reconstruction of Evidence Loss System from the Perspective of Comparative Methods

The purpose of the system of evidence disqualification is to limit parties’ abuse of litigation rights and avoid litigation delays. However, China’s discretionary evidence disqualification legislation violates the essence of evidence disqualification and encourages the emergence of transactional litigation, making evidence disqualification in our country a minor issue. We must evaluate the substance of the evidence disqualification system and create evidence disqualification norms in other jurisdictions based on our national conditions in order to manage litigation procrastination and apply the concept of equality of parties. Remove the flaw while keeping the essence. Creation of the pre-trial procedure and application of the interpretation right should be the cornerstone to the system’s construction, according to research. At the same time, based on Chinas’ national conditions, taking the loss of probative power as the consequence of overdue instead of fines and other substantive measures, we should be able to achieve the purpose of reshaping the system of evidence disqualification.

Legal mechanism for protecting the rights and interests of entrepreneurs

The authors have made an attempt to comprehensively study the problems of ensuring the rights and freedoms of businessmen. We are talking about state measures to protect the rights of businessmen. Comprehensive measures to support small and medium-sized businesses are provided by law in the Republic of Kazakhstan.  In the context of the pandemic, the state canceled annual inspections of the activities of businessmen, introducing a moratorium. As you know, a three-year moratorium on inspections of small and microenterprises has been introduced in the Republic of Kazakhstan since 2020. This became an effective measure to protect businesses from government interference in their activities, which allowed individual entrepreneurs to build a successful business in difficult conditions. Civil scientists have been studying the legal mechanism for protecting the rights and interests of entrepreneurs for many years. Great importance is attached to mediation, pre-trial procedure for the consideration of various complaints and disputes. The education and awareness of the population, as well as the values of civil society: freedom, comprehensive development of the individual, the ability to protect their rights and comply with duties, should fulfill an enduring value in this. Do not forget about subsidies and benefits that can significantly reduce the tax burden for businessmen. Key words: entrepreneurial activity, business, pre-trial procedure, mediation, supervision, monopolies, antimonopoly regulation, protection mechanism, legitimate interests, legal means.

ИШНИ СУДГА ҚАДАР ЮРИТИШДА ҲИМОЯЧИ ФАОЛИЯТИДА ТОРТИШУВ ПРИНЦИПИНИНГ ТАЪМИНЛАНИШИ АҲАМИЯТИ

This article reveals the content of adversarial principle, which is one of the criminal procedural principles, the essence of its validity in the criminal process at the stages of proceedings in court, as well as its importance in the activities of defense counsel. During the study of pre-trial proceedings, the scientific-theoretical views of domestic and foreign legal scholars on the essence and significance of the defense lawyers activities, and the legislation of foreign countries in this area were discussed and analyzed in detail. Since in our criminal procedural legislation the scope of the adversarial principle is limited, one of the main purposes of this article is to expand its scope, in particular, the application of the adversarial principle in pre-trial proceedings. As a result of the analysis, scientifically substantiated proposals were made to amend our legislation with regard to the title of Article 25 and to strengthen norms of Part One of the CPC in a new edition. In order to ensure the principle of equality and adversarial proceedings in pre-trial procedures, the successful implementation of impartial judicial control over the prosecution and the defense, as well as expanding the rights of defense counsel, Articles 28 and 29 of the CPC of the Republic of Uzbekistan were revised. When writing the article, the methods of comprehensive research of comparative legal, logical (analysis and synthesis) scientific sources of knowledge were widely used.

К ВОПРОСУ О ПОНЯТИИ И СОДЕРЖАНИИ «ИНОГО ПОРЯДКА ДОСУДЕБНОГО УРЕГУЛИРОВАНИЯ СПОРОВ, УСТАНОВЛЕННОГО ДОГОВОРОМ»

The article analyzes the provisions of the arbitration procedural legislation and the practice of its application on a different pre-trial dispute settlement procedure established by the contract. A different pre-trial procedure is considered as an alternative to the general claim procedure for resolving disputes. The characteristic features of a different pre-trial order have been revealed. The authors summarized the practice of arbitration courts, highlighting other demanded pre-trial dispute settlement procedures. In particular, examples of atypical other methods of dispute settlement are provided. Separately, the issue of the admissibility of the cancellation of the general claim procedure for the settlement of disputes by the agreement was considered. An independent subject of the authors’ analysis was mediation as a pre-trial dispute settlement procedure. The work also focuses on the impact of a different pre-trial dispute settlement procedure on the course of the limitation period. The article discusses the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 22 June 2021 No. 18 “On Some Issues of Pre-Trial Settlement of Disputes Considered in Civil and Arbitration Proceedings”. Some of the recommendations of the Plenum of the Supreme Court of the Russian Federation received critical assessment. The authors note the existing contradictions in the legislation and possible ways to overcome them, formulate individual conclusions as a result of studying the materials of the practice of arbitration courts.

Civil Action and Pretrial Procedures in Criminal Cases

This article centers on civil action in pretrial procedures in criminal cases taken to repair damage caused by the crime. The authors highlight that the aforementioned issues in the Russian legal practices reason the need to reinvent approaches to a unified model for managing proceedings of filing and securing a civil suit as the most effective method to repair damage caused by a crime. In addition, it is important for the authorities to formulate a unified approach to compensation practices.The correct implementation of the litigation rules can ensure guarantees for the victim, and further for the civil party to receive compensation for the damage caused by the crime.According to the obtained results, the authors conclude that a civil action is an effective mechanism to secure reparation for damage caused by a crime. By filing a civil suit, the laws of the Criminal Procedure Code are implemented which stipulate the restoration of victims’ rights, including the claims being settled in favor of the civil party.

Features of legal regulation of the institute inquiry in the legislation of Ukraine and foreign countries

Features of legal regulation of the institute inquiry in the legislation of Ukraine and foreign countries

К ВОПРОСУ О СООТНОШЕНИИ АДМИНИСТРАТИВНОГО СУДОПРОИЗВОДСТВА И АДМИНИСТРАТИВНЫХ ПРОЦЕДУР

The article contains an analysis of topical issues of administrative judicial procedure and administrative procedure. The author substantiates the conclusion about self-sufficiency of law of administrative judicial procedure and proposes directions for its further development. This development is associated with the adoption of legislation on the administrative procedure in Russia. This step can resolve a number of conceptual issues: 1) elimination of excessive preliminary judicial control over activities of the executive branch, the use of preliminary judicial control only where it is needed; 2) optimal regulation of pre-trial and judicial proof, as well as the procedure for reimbursement of legal costs; 3) forming of subject of administrative dispute prior to initiation of judicial procedure, which subsequently makes it possible to clearly delineate procedural rights and obligations of the court and the parties of administrative dispute. As a result, it is concluded that the optimal coordination of legal regulation of administrative procedure and legal regulation of administrative judicial procedure should provide the most effective protection of the rights of individuals and legal entities arising from public legal relations. The new legal regulation should not be aimed at restriction of procedural rights (for example, by introducing a mandatory pretrial procedure for resolving of all types of administrative disputes).

Judicial Protection of the Rights of Consumers of Financial Services

. The institution of a financial ombudsman significantly affects the procedure for protecting the rights of consumers of financial services. The problem is that the protection of consumer rights in the courts is complicated by the factual double mandatory pre-trial procedure for resolving a dispute, in which, before going to court, the consumer is obliged to contact a financial organizationand a financial ombudsman. The purpose of this article is to formulate a theoretical approach to the balance between consumer access to justice and the burden on the judicial system. Research objectives: characteristics of the consumer of financial services; assessment of the pre-trial procedure for protecting the rights of consumers of financial services; search for the optimal ratio of pre-trial and judicial procedures for protecting the rights of consumers of financial services. When writing this article, general scientific methods (system, functional, group of logical methods) and special legal methods (formal legal, legal modeling method) were applied. The article criticizes the existing procedure for protecting the rights of consumers of financial services for the imbalance between consumer access to justice and the burden on the judicial system. The author proposes the introduction of a mixed jurisdiction of disputes involving consumers, in the framework of which it is assumed that after contacting a financial organization, the consumer will have the choice of a jurisdictional body- the consumer will be able to appeal to both the financial ombudsman and the court. At the same time, the development of the institution of a financial ombudsman by improving the efficiency, efficiency and other characteristics of dispute resolution will increase its attractiveness for consumers, stimulating them to resolve disputes out of court.

REHABILITATION OF THE DEBTOR BEFORE THE OPENING OF BANKRUPTCY PROCEEDINGS

Case Law shows that most bankruptcy cases end in liquidation, and restoring the debtor’s solvency and maintaining it as a business entity is the exception rather than the rule. Such trends clearly do not contribute to the development of the economy, so the development of recovery procedures applicable to the insolvent debtor seems relevant. One such procedure, which has appeared relatively recently in Ukrainian Law, is the pre-trial reorganization procedure. The purpose of the article is to analyze the provisions of current legislation governing the reorganization of the debtor before the opening of bankruptcy proceedings, study current issues that arise in the practice of applying the relevant provisions of the Civil Procedure Code of Ukraine, and set out their views on the effectiveness of pre-trial reorganization. The case law on appealing the approval of the pre-trial rehabilitation plan, namely the appeal of the rehabilitation plan by creditors who did not participate in the voting or who voted against the approval of the pre-trial rehabilitation plan, is analyzed. Bankruptcy cases in the scientific doctrine are divided into two categories: 1) the bankruptcy case itself; 2) related cases, which are considered in the order of claim or declaration proceedings (invalidation of auctions, contracts, etc.). The author argues the possibility of supplementing this division of bankruptcy cases with another, third category — cases of pre-trial reorganization. It is emphasized that the Code of Ukraine on Bankruptcy Procedures provides for two types of reorganization: reorganization prior to the opening of bankruptcy proceedings (pre-trial reorganization) and reorganization as a court procedure applied to an insolvent debtor within a bankruptcy case. Both pre-trial reorganization and "judicial" reorganization pursue a single goal — to restore the debtor’s solvency and preserve it as a business entity. According to the results of the study, the author concludes that pre-trial rehabilitation has a number of advantages, which include: efficiency; profitability for creditors; write-off of a significant portion of tax debt and other mandatory payments: lower court costs in the form of court fees for both the debtor and creditors.

Mandatory Pre-trial Procedure for the Settlement of Disputes in Civil Procedure (Analysis of the Application of Part 5 of Article 4 of the Arbitration Procedure Code of the Russian Federation)

The provisions of the arbitration procedural legislation on the pre-trial procedure for the settlement of the dispute are additional requirements to the filing to the court in comparison with civil procedural legislation. According to the legislator, on the one hand, these requirements encourage the independence of commercial organizations and individual entrepreneurs in the settlement of economic disputes, on the other hand, indicate the desire of the legislator to reduce the number of arbitration disputes and increase the effectiveness of justice. About three years have passed since the appearance of the norm in question and some conclusions can be drawn regarding its application by the courts. The authors of the article draw attention to the problematic aspects of law enforcement practice: categories of disputes when the application of pre-trial procedure is mandatory; compliance with the form, content, deadlines for submitting a claim; assessment by the court of the actions of the parties to resolve the dispute before going to court; overall effectiveness of the existing order. The authors conclude that the goal set by the legislator before the pre-trial procedure (an alternative pre-trial method for the resolution of disputes, designed to provide faster, less formalized and costly dispute resolution in comparison with the judicial process) is not achieved.

An apple of discord: pre-trial procedure in international justice and in the jurisprudence of the EAEU Court

The present article assesses the approaches elaborated in the decisions of international courts and tribunals as well as in the doctrine of international law towards the legal value of pre-trial requirements. The role and significance of such requirements started to increase since almost in any case submitted to a court or arbitration the respondent states try firstly to question either jurisdiction of the court or tribunal in the specific case or admissibility of the claim. As a rule, such objections are based on allegations that the claimant failed to comply with pre-trial requirements such as direct negotiations or prior notification of the respondent about the claimant’s intention to submit the dispute for compulsory adjudication. Despite an absence of customary rule of international law about the necessity and precise content of such pre-trial requirements, international treaties stipulating compulsory dispute adjudication almost by default contain such pre-trial requirements of different kind and combination. Current jurisprudence of international courts and tribunals (International Court of Justice, Court of Eurasian Economic Union, and investment arbitration tribunals) dealing with such objections by the respondents reveals a lack of consensus in the treatment of pre-trial requirements either as jurisdictional or admissibility objections. The commentators also differ on assessment of the role and normative significance of pre-trial requirement. Nevertheless, the authors view such requirements as one of jurisdictional characteristics based on the consent of the states to limits their sovereignty by agreeing in advance in the applicable international treaty to submit any future disputes for compulsory adjudication subject to stipulated limitations and conditions, for instance, necessity for a claimant to follow certain pre-trial requirements. A claimant’s failure to follow such requirements should be considered as sufficient ground for a court or tribunal handling such claim, to declare a lack of its jurisdiction in the case and to refuse to consider the merits of the case.

On the issue of introducing a pre-trial appeal procedure of acts, decisions, actions (inaction) of external state financial control bodies, as well as their officials

On the issue of introducing a pre-trial appeal procedure of acts, decisions, actions (inaction) of external state financial control bodies, as well as their officials

К вопросу об альтернативном разрешении конфликтов в сфере здравоохранения через досудебные, судебные и внесудебные процедуры

К вопросу об альтернативном разрешении конфликтов в сфере здравоохранения через досудебные, судебные и внесудебные процедуры