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Introduction

Urgency of a theme of dissertational research. Recently necessity of use of special knowledge admits criminal trial of the various states with a view of comprehensive investigation of the circumstances which are coming under to proving.

The essential help in the decision of the questions demanding special knowledge, to the subjects, obliged to carry out proving in the Russian and foreign criminal trial, is rendered by the expert's statement.

The international cooperation actively develops in the modern period in the field of expert testimony in court. With a view of state crime control conclude dogovory about mutual legal aid on the criminal cases, including interaction concerning examination. In this connection carrying out of rather-legal research of a remedial order of reception of the expert's statement, its legal effect and an estimation in criminal trial of Russia and other states is obviously important.

Besides, now the Russian scientists discuss a question on necessity of granting to the party of protection of the right to appoint examination and to use the expert's statement received by it as the proof on criminal case with a view of a refutation of the conclusion of officially appointed expert. In this connection rather-legal research allows, in - the first, to reveal necessity of similar changes, secondly, to define optimum ways of reforming of the national legislation, thirdly, to prevent approach of negative consequences in case of any copying of norms of the foreign right within the limits of legislative activity without features of the Russian criminal trial.

With a view of complex studying of the chosen theme the author uses the approaches based on allocation of types of criminal trial: sostjazatelnogo and mixed. Sostjazatelnyj criminal trial has developed and keeps the

The basic lines mainly in the general law countries, therefore defensible to call it Anglo-American [1]. The mixed criminal trial has extended in the countries of the romano-German legal family, having received the name continental [2]. Within the limits of the continental approach such states, as Russia [3], Ukraine [4], the Netherlands, France, G ermanija, and in a context of the Anglo-American approach - the United Kingdom the Great Britain and Northern Ireland (further - the United Kingdom), the United States of America (further - the USA) are investigated. The choice of these states is caused by that they are one of the basic representatives of the specified types of criminal trial. Besides, for the last few years in the named countries there were essential legislative reforms with reference to expert's statement institute.

The most actual in various laws and orders is the problem of an estimation of results of activity of the expert pravoprimenitelem. Last years in criminal trial of the separate countries, including Russia, the USA, the United Kingdom [5], special attention it began to be given to an estimation of reliability of the conclusion (indications) of the expert as finding-out of the given question demands special efforts from the subjects, obliged it to carry out. Carrying out of rather-legal research allows to analyse, as in continental and Anglo-American criminal trial try to solve the specified problem.

Degree of a readiness of a theme. The general questions of proofs and proving including in criminal trial of the foreign states, were a subject of scientific interest of many jurists among which it is necessary to name R.S.Belkin, L.E.Vladimirova, A.JA.Vyshinsky, L.V.Golovko, G.F.Gorskogo, K.F.Gutsenko, V.J.Dorokhov, V.I.Zazhitskogo, L.D.Kokorev, P.A.Lupinskuju, J.K.Orlova, N.N.half-Jansky, M.S.Strogovicha, A.I.Trusova, L.T.Ulyanov, B.A.Filimonova, I.JA.Fojnitsky, S.A.Shejfera, P.S.Elkind, etc.

In a domestic science studying of the questions, concerning expert's statements and examinations as way of its reception in criminal trial, specially were engaged T.V.Averyanov, R.S.Belkin, S.V.Borodin, I.V.Burkov, A.I.Vinberg, A.V.Dulov, E.A.Zajtseva, A.M.Zinin, E.V.Ivanov, V.J.Koldin, J.V.Komissarova, J.G.Koruhov, A.V.Kudryavtsev, N.P.Majlis, JU.K.eagle, A.J.Paliashvili, I.L.Petruhin, D.P.potashnik, V.A.Prituzova, R.D.Rahunov, E.R.Rossinsky, E.V.Selina, S.N.Haziev, M.A.Cheltsov, N.V.Cheltsova, A.R.Shljahov, A.A.Ejsman, N.P.Yablokov, etc.

Some scientists have devoted the works to an order of reception of the expert's statement in criminal trial of the foreign states. So, remedial and organizational questions of appointment and expert investigation in criminal trial of France revealed in T.V.Ustjantsevoj, A.I.Lubensky's works, G ermanii - B.A.Filimonova, the Anglo-American states - G.P.Voskerchjan, M.Dzhumajni, I.M.Zeldes, A.I.Kaledin, G.P.Proshinoj, the countries of Scandinavia - E.A.Frolychevoj.

In foreign правопорядка* the essential contribution to research of institute of the expert's statement to criminal trial have brought M.G.ShCherbakovsky, J.Frekelton (I.R. Freckelton), L.Hend (L. Hand), the Item Since van Kampen (P.T.C. van Kampen), L.Majntes-van der Valt (L. Meintjes-van der Walt), A.Myonsen (A.A. Moenssens), J.Nejbur (J.F. Nijboer), M.Redmejn (M. Redmayne),

J.Hilkema (J. Hielkema), J. Spenser (J.R. Spencer), P.Metsger (P.R. Metzger), Z.Russo (J. Rousseau), P.Fanberssen (P. de Fontberssin), etc.

However it is necessary to notice, that by the Russian researchers it was not given special attention to detailed studying in rather-legal aspect of legal effect and an expert's statement estimation in continental and Anglo-American criminal trial. Many researches of domestic authors devoted to questions of examination as a way of reception of the expert's statement in criminal trial of such states as France, Ukraine, the USA, the United Kingdom, are spent in the XX-th century, and, hence, do not consider the newest legislative changes in the given area. Besides, the Russian scientists do not investigate expert's statement institute in criminal trial of the Netherlands.

The purpose and research problems. The purpose of dissertational research is carrying out of complex rather-legal analysis of institute of the expert's statement, and also criteria of an estimation of the given kind of the proof in continental and Anglo-American criminal trial.

For achievement of the specified purpose following research problems have been put:

• to study forms of use of the special knowledge, Russia existing in criminal trial and the foreign states, and to show an examination place as way of reception of the expert's statement in their system;

• to carry out rather-legal analysis of an order of appointment and expert investigation as way of reception of the expert's statement in continental and Anglo-American criminal trial;

• to track tendencies of development of institute of examination as way of reception of the expert's statement in continental and Anglo-American criminal trial;

• to consider expert's statement legal effect in criminal trial of Russia and the foreign states;

• to investigate criteria of an estimation of the expert's statement in continental and

Anglo-American criminal trial.

Object of research are the public relations connected with reception of the expert's statement, and also its use in the course of proving on criminal case in Russia and the foreign states.

Object of research are the researches of norm of the Russian and foreign legislation connected with specified object, the Russian and foreign judiciary practice, results of questioning of practical workers in the field of the Russian criminal trial, and also the theoretical positions developed by the domestic and foreign doctrine.

Methodology and research methods. A methodological basis of dissertational research constitute general dialektikomaterialistichesky a method, general scientific methods (the analysis and synthesis, an induction and deduction, comparative, system), special methods (historical, is concrete-sociological) and chastnonauchnyj a legallistic method.

Standard base of research Ukraine, the Netherlands, Germany, the USA, the United Kingdom constitutes Russian ugolovnoprotsessualnoe the legislation, and also the legislation of the foreign states such, as France.

The empirical base of research consists of practice of the European court under human rights, judiciary practice of the USA, the United Kingdom, and also Russia, namely decisions of the Supreme Court of the USSR and the Supreme Court of the Russian Federation, 150 decisions of vessels of the general jurisdiction of of Moscow, the Arkhangelsk, Kaliningrad, Moscow, Smolensk and Ulyanovsk areas during 2011-2014

The author of dissertation also spends questioning of 220 practical workers of of Moscow, the Vladimir, Kemerovo, Moscow, Murmansk, Oryol, Samara and Chelyabinsk areas, Krasnodar territory and republic Bashkortostan, including 150 inspectors, 15 investigators, 16 public prosecutor's workers, 28 lawyers, 11 judges.

Scientific novelty of dissertational research. For the first time at dissertational level complex rather-legal research of institute of the expert's statement is carried out criminal trial. Taking into account the typology of criminal trial accepted in the doctrine the author, leaning against continental and Anglo-American approaches, has allocated the general and especial forms of use of special knowledge, has analysed a remedial order of reception of the expert's statement with instructions of merits and demerits of remedial forms of examinations, has shown modern lines of development of institute of examination as way of reception of the expert's statement, investigated degree of an autonomy of the expert's statement as proofs and its parity with indications of the expert, has considered criteria of an estimation of the conclusion (indications) of the expert.

The substantive provisions which are taken out on protection:

1. In continental and Anglo-American criminal trial there is a uniform approach to concept of special knowledge. So, in both types of criminal trial special knowledge is understood as special knowledge, the skills got within the limits of formation, special preparation or as a result of experience, as in scientific, and other fields of activity and which the subjects do not own, obliged to carry out proving on criminal case.

At the same time forms of use of special knowledge in continental and Anglo-American criminal trial are differentiated. Depending on a legal status of the expert it is possible to allocate as the general (characteristic for group of the countries), and especial forms of use of the special knowledge, existing in criminal trial of the separate states.

2. In continental criminal trial among the general forms can be presented: 1) examination (Russia, Ukraine, France); 2) expert investigation or a summer residence of consultation by the expert (the Netherlands, Germany); 3) participation of the expert who does not have the remedial status of the expert, for a summer residence of the information of advisory character (Russia, Ukraine, France,

G ermanija); 4) participation of the expert at carrying out of investigatory (remedial) actions for assistance in detection, fastening and withdrawal of subjects and documents, application of means (Russia, Ukraine, France, the Netherlands, Germany).

As especial forms of use of special knowledge in continental criminal trial it is possible to allocate participation of the expert under the petition convicted for realisation of supervising function at expert investigation or for the analysis of the conclusion prepared by officially appointed expert (Netherlands). In criminal trial of France as the especial form of use of special knowledge probably attraction of the expert, capable to give the recommendations demanding special knowledge, to officially appointed expert (in criminal trial of the Netherlands such participation is possible within the limits of the above-stated form).

3. In Anglo-American criminal trial (the USA, the United Kingdom) the general forms of use of special knowledge are: 1) participation of the expert-witness of the parties with a view of expert investigation or a consultation summer residence; 2) participation of the expert appointed court, with a view of expert investigation or a consultation summer residence; 3) participation of experts for assistance in detection, fastening and withdrawal kriminalisticheski the significant information flagrante delicto.

Any especial forms in Anglo-American criminal trial during research it is not revealed.

4. The existing fundamental distinctions, provings concerning questions in continental and Anglo-American criminal trial, predetermine special regulation of the relations arising between its participants in connection with remedial order of reception of the expert's statement. Depending on the one who is the subject of appointment of examination, it is necessary to allocate continental and Anglo-American (sostjazatelnuju) examination.

Continental examination is characterised by that the right of its appointment the authorised representative of the state establishing all circumstances of criminal case within the limits of pre-judicial and judicial stages of criminal trial possesses only.

Anglo-American (sostjazatelnaja) examination takes place when and the authorised representative of the state from charge has the right to appoint examination under own initiative, and the protection party as the subject of proving can independently involve the expert for expert investigation on concrete criminal case.

5. Estimating tendencies of development of institute of examination as way of reception of the expert's statement in criminal trial of Russia and the foreign states, it is possible to note rapprochement of continental and Anglo-American approaches.

In continental criminal trial expansion of the rights of the party of protection within the limits of a remedial order of reception of the conclusion of officially appointed expert and its contest that strengthens the beginnings of competitiveness peculiar to Anglo-American process is noticed.

In the Anglo-American states inconsistent tendencies are traced. On the one hand, in the United Kingdom and the USA court intervention in proving process is still limited by criminal case consideration. On the other hand, with a view of overcoming of imperfections sostjazatelnoj examinations, namely complexities of an estimation of inconsistent expert opinions of the parties and potential probability of their unauthenticity, there is a loan of some lines of the continental approach. So, it is necessary to pay attention to strengthening of a role of court as of the subject of an estimation of the conclusion (indications) of experts, and also on decrease in degree of confrontation between the parties with reference to examination institute.

6. According to the author, in the Russian criminal trial is inadmissible to give to the party of protection the right to appoint examination. First, at system level there will be a belittling of the continental beginnings of the Russian criminal procedure proving. Secondly, implementatsija angloamerikanskogo the approach will inevitably lead to loss by the party of protection of the significant rights within the limits of examination institute (on an example of Ukraine: the right to put questions before the expert at appointment of examination as the charge party, the right to be present by its manufacture).

7. For the purpose of granting the party of protection of additional remedial possibility of contest of the conclusion of officially appointed expert the author is offered to improve examination institute in the Russian criminal trial taking into account its continental traditions. According to the author of dissertation, it is necessary to allocate the protection party with the right to petition for appointment of the expert chosen by it which can be present at expert investigation with a view of representation in writing the conclusion containing answers to questions put to it, including concerning correctness or quality of the carried out research by the expert, reliability of techniques applied by it.

8. The expert's statement admits continental criminal trial by the independent proof which the court can base on a sentence, not resorting without fail to interrogation of the expert within the limits of proceeding. An exception is criminal trial G ermanii in which the expert under the general rule should be for evidence in court as only then its conclusion will be recognised by the proof, except for cases, statutory.

9. In the Anglo-American criminal trial the expert's statement received during pre-judicial manufacture, under the general rule has no evidentiary value in connection with existence of an evidentiary rule hearsay which assumes a recognition inadmissible the proofs received out of vessels from the person, not was in session of the court. At the same time, in connection with the practical importance in criminal trial of separate states of the USA and the United Kingdom conditions at which observance received by the parties within the limits of investigation the expert's statement can be recognised as the admissible proof are defined.

10. Both in continental, and in Anglo-American criminal trial the expert's statement has no in advance established force and is estimated from the point of view of the relevancy of data containing in it to circumstances of criminal case, observance of the law and the rights convicted at appointment and examination carrying out, and also its reliability, including scientific validity.

At the same time, continental and Anglo-American approaches to evaluation of evidence, including expert's statements, have features. In continental criminal trial of property of the relevancy, an admissibility (the requirement of observance of the law and human rights), reliability have own maintenance, and court uses them for decision-making in essence.

In Anglo-American criminal trial the concept of admissibility of evidence has other maintenance. There the proof admits admissible if it is carried and does not fall under the rules excluding the proofs. For the purpose of removal of the proved and fair verdict by jurymen the professional judge before research of circumstances of business by them estimates admissibility of evidence.

The theoretical and practical importance of research. Materials, and also results of dissertational work can be used for continuation of scientific rather-legal researches in the field of examination, and also for teaching of criminal procedure disciplines. In dissertational research a number of changes with a view of perfection of the operating criminal procedure legislation which can be considered in the course of legislative activity is offered.

Degree of reliability and approbation of results of research. Reliability of results of research proves to be true deep studying by the author of the Russian and foreign legislation, references of domestic and foreign authors, results of the spent questioning of practical workers, the analysis of the Russian judiciary practice, and also use of scientific methods of research. The dissertations drawn by the author conclusions are given reason and compared with positions of other researchers.

Substantive provisions of dissertational research were discussed on faculty meeting of criminal trial, justice and procurator's supervision of the Moscow State University of a name of M.V.Lomonosova, and also used at carrying out of seminar employment on criminal trial in student teaching passage on faculty of law of the Moscow State University of a name of M.V.Lomonosova. Some key results of research were reported at the international conferences of students, post-graduate students and young scientists "Lomonosov-2013" and «right-2013 Evolution», the Moscow State Universities of a name of M.V.Lomonosova spent on faculty of law.

The basic results of the present dissertational research contain in 4 publications, from them in 3 in the reviewed scientific editions recommended by the Higher certifying commission of the Ministry of Education and Science of the Russian Federation.

Research structure. The dissertation consists of the introduction, two heads (including six paragraphs), the conclusions, the literature and appendix list.

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A source: Samuticheva Ekaterina Jurevna. the EXPERT'S STATEMENT And ITS ESTIMATION In CRIMINAL TRIAL (rather-LEGAL RESEARCH). The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2015

More on topic Introduction:

  1. in introduction
  2. INTRODUCTION
  3. INTRODUCTION
  4. 10.1. Introduction
  5. INTRODUCTION
  6. approbation and introduction of results.
  7. Introduction
  8. Introduction
  9. INTRODUCTION
  10. INTRODUCTION
  11. Introduction
  12. Introduction
  13. INTRODUCTION