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§ 1. Concept and essence of justice of the criminal trial

Justice as a phenomenon does not test a lack of attention from scientists. Thus reasonings and conclusions about its concept, essence, forms, kinds remain till now inconsistent, require the specifying argument, and at times and in new research approaches.

For us necessity for deeper and developed research of the designated questions is caused not only scientific interest, but also their practical importance for the decision of problems of the present dissertational work.

At first sight can seem, that anything difficult in definition of concept of justice, its essence, forms and means of realisation is not present. However in the Russian jurisprudence on the specified problematics the set of the points of view [14] is stated. Scientific discussions in the given occasion could be carried to purely theoretical and to do without their analysis if definition of a being of justice did not render direct influence on practical judicial business. Told first of all concerns justice in criminal trial sphere. Not to be unfounded, we will notice, that from what activity of court we name justice, its realisation according to justice principles (publicity, independence, competitiveness etc. depends.) or without those.

It first. Secondly, true definition of essence of justice gives the chance to define and forms of its realisation. Proceeding from stated, we will analyse theoretical in these sphere theoretical and practical problems.

The term "justice" in dictionaries of a different sort is interpreted on - a miscellaneous.

So, the Dictionary of Russian of Academy of sciences of the USSR and Russian Institute contains two definitions of justice: first, it is court, state judicial business, justice; secondly, this decision, the judgement based on laws and justice [15]. In other explanatory dictionaries similar formulations contain. In V.I.Dalja's Dictionary, for example, justice is understood «as fair trial, the decision under the law, on conscience... The truth» [16 [17].

In other value justice is considered in the Explanatory dictionary

z

S.I.Ozhegova: «Justice is an activity of courts of justice».

It is no wonder therefore, that the range of disorder of opinions of scientists in the given occasion does not concede to semantics given to justice by experts in area jazykovedenija. As marks N.A.Gromoshina, «representatives of a general-theoretical science and a constitutional law science try to understand with justice at level of" high matters “, and"otrasleviki", in particular representatives of remedial branches of law,"earth"a problem, putting before itself rather concrete questions:

Whether is the certificate of justice the injunction;

Whether is justice court activity in ex parte proceedings;

Whether it is possible to consider as justice activity of court above on check of legality and validity of the taken out judicial decisions;

Whether it is possible to consider as justice (in criminal trial) supervising activity of court at an inquiry and preliminary investigation stage »[18 [19] [20].

Researchers consider justice in wide and narrow senses, in organizational and functional aspects, allocate its realistic and idealistic maintenance [21] etc. Widespread a position which supporters treat justice as activity of courts of justice [22] and as function of the judicial authority [23].

Such pluralism of opinions concerning approaches to the permission of the designated questions is caused first of all by that justice - the difficult, many-sided phenomenon and consequently, demand scientifically proved, deep and all-round analysis as concept of justice and its essence, and all concepts connected with justice. It is necessary to differentiate also it with similar concepts, to establish communications between them, that in turn it is impossible without definition of philosophical sense and the maintenance of terms "concept", "essence".

It is accepted to understand the thought reflecting in the generalised form subjects and the phenomena of the validity and essential communications between them by means of fixing of the general and specific signs in which quality properties of subjects and the phenomena and the relation between them act as the term "concept" of philosophy. In concept the essence of subjects, their internal maintenance [24] "seizes".

Hence, the core, sistemoobrazujushchim as a concept element the essence of the defined phenomenon acts. Aristotle specified in necessity of obligatory definition of concept through essence still: « ... In definition something essence definition »[25 [26] should contain. With the classic modern researchers are solidary also. According to D.A.Kerimova, for example, to understand the various phenomena (with which, in our opinion, in this case are), their communications to understand the tendency of their movement, appointment and a role in a public life, it is necessary to find out separate kinds, justice forms, first of all, that consolidates them to open"kernel", a basis, the general law of development of all legal phenomena, i.e. To find out and define their general essence. The intrinsic knowledge, according to the researcher, assumes detection of those internal and necessary, general and basic, main and steady properties, signs and lines of the phenomena and processes, the unity and which interconditionality define their specificity and laws of development [27].

In our opinion, all listed elements are formed depending on mission, the purpose, the problems of the phenomenon caused nearby of historical circumstances. Told fairly and concerning justice.

With development of public relations arose and factors, their regulating developed also. Besides norms of morals, morals, customs and traditions the public law becomes the basic regulator of these relations, the care of which firmness lays down on state shoulders. There is a criminal liability institute. That is infringement ugolovnopravovyh norms generates legal relations between the state and the person who has "stepped" the law according to whom the state is obliged to establish this person and to apply to it sanctions [28 [29]. Easier speaking, necessity of creation of "tool" (body), its eliminating becomes a consequence of the legal conflict. The superlinear phenomenon named court which form at different historical stages of development changes as a result arises. But the essence of justice thus remains invariable.

Speaking about an invariance of essence of justice, we mean size, invariable concerning an essence of the mission. The essence does not exist oposredovanno, out of the phenomena: the phenomenon is prevrashchenno the carried out essence, its direct activity, the concrete form of expression. The phenomenon is an essence in its existence. Thus each separate phenomenon can find out not all essence, and its separate moment, the party, a part as the essence is something the general for all phenomena.

As by us it has been defined, that the essence of justice represents means of the permission of legal conflicts, the form of removal of social contradictions, it is logical to approve what be realised it can exclusively in the form of a specific sort of activity. Forms of realisation of the given activity and its kinds also are, in our opinion, those phenomena by means of which obektiviruetsja and the essence of justice is expressed. Thus if the phenomena at the heart of the izmenchivy, are changeable, essence as we marked, is invariable. Qualitative change of the phenomenon can lead to disappearance old and to occurrence of other, new phenomenon, however it will be display of the same essence [30 [31] [32] [33].

According to this law the justice form, first of all the criminal changes also. Depending on a social and economic formation scientists allocate types of criminal justice: slaveholding, feudal, bourgeois, социалистический2, and also justice forms: accusatory, search (inkvizitsionnyj), the investigatory-accusatory (mixed) process. Depending on features of national criminal procedure systems (national, religious, geographical) in a science allocate also Anglo-Saxon, French, German, Russian and other processes.

Taking into account all stated we consider, that the definition of concept formulated earlier in a science justice [34] as carried out on the basis of the law in the form of constitutional, civil, administrative and the criminal trial remedial pravoprimenitelnoj activity of bodies of the judicial authority directed on the permission of the legal conflict, contains those general, basic, main and steady signs peculiar for all phenomena of justice (forms, kinds), reflecting its essence and the maintenance throughout all time of its existence.

The justice maintenance is constituted by the activity expressing essence of justice as means under the permission of the legal conflict and possessing corresponding signs: such activity is the form of realisation of the judicial authority, is carried out by court on the basis of the law and carries remedial, pravoprimenitelnyj character.

The designated theses demand the argument.

First of all, at the characteristic of concept "justice" it is necessary to start with its indissoluble communication with concept "judicial authority", the maintenance and which being are not indisputable. As is known, according to item 10 of the Constitution of the Russian Federation the government in the Russian Federation is carried out on the basis of division on legislative, executive and judicial. However legislative definitions of concepts of the listed branches of the power are absent, in this connection in the theory on this question the various points of view are stated.

Positions concerning understanding of the judicial authority with a certain share of convention can be consolidated as follows. Supporters of the first approach identify the judicial authority with system of establishments and functions belonging to them [35 [36]. Representatives of the opposite approach consider the judicial authority as set of the powers (possibilities) of imperious (administrative) character given to courts of justice. In Russian dictionaries both formulas are resulted. However, in our opinion, the second point of view reflects a being of concept of the power, which «more truly... Is primary; ability (the right, possibility) to operate, which dominating persons (organisation) possess, distinguishes them from other people (organisations), but not on the contrary». In the first case, speech, it appears, goes about the judiciary in which activity of elements the judicial authority is realised.

Proceeding from interpretation of item 118 of the Constitution of the Russian Federation, items 1 of the Federal constitutional law from December, 31st, 1996 № 1-FKZ «About the judiciary of the Russian Federation» on judicial authority realisation are allocated by imperious powers all courts founded according to the law. Nevertheless the question on the legal nature of activity of the Constitutional Court of the Russian Federation not is represented to all researchers unequivocal.

Concerning the nature of this body in a science the position according to which its activity is not justice [37 [38] [39] was generated. Thus its one followers believe, that such activity cannot be judicial authority display at all as represents other, fourth branch of the power [40]. Its other supporters assume in activity of the Constitutional Court of the Russian Federation synthesis of two branches of the power - judicial and control [41].

This approach, in our opinion, contradicts norms of the current legislation. In particular, item 4 FKZ «About the judiciary of the Russian Federation» does not provide withdrawal from among the bodies which are carrying out justice, the Constitutional Court of the Russian Federation. Accordingly judges of the Constitutional Court, as well as the judge of other vessels constituting the judiciary of the country, any other, except pravosudnoj professional work on judicial authority realisation, cannot be engaged and possess the uniform status of the judge. Besides it item 118 of the Constitution of the Russian Federation one of ways of realisation of the judicial authority along with civil, criminal, administrative fixes also the constitutional legal proceedings (the similar norm contains in FKZ «About the judiciary of the Russian Federation»), on what paid attention also Constitutional Court. So, in item 2 of its Decision from June, 16th, 1998 № 19-P, it is underlined: « Defining the competence of the Constitutional Court of the Russian Federation, the Constitution of the Russian Federation starts with compulsion of its realisation in the specific form of justice - the constitutional legal proceedings ». For default of decisions of the Constitutional Court of the Russian Federation by the law responsibility (item 81 FKZ from July, 21st, 1994 № 1-FKZ« About the Constitutional Court of the Russian Federation ») is established. That is the Constitutional Court of the Russian Federation is the public authority which is carrying out the control over bodies legislative and the executive authority in the form of exclusive activity - justice.

Thus, the current legislation allows to draw a conclusion that justice is an activity of the judges of all allocated when due hereunder with the status without an exception of the vessels constituting the judiciary of the Russian Federation, including the Constitutional Court of the Russian Federation. Result of the specified activity is pravoprimenitelnyj the certificate which compulsion of execution is provided by possibility of application of measures of the state compulsion (differently an ultimate goal can be and it is not reached).

Activity on justice realisation we (will repeat) possesses one more sign: it has remedial character. Thus we start with the following.

As is known, activity of courts of justice is not only consideration and adjudication in essence, but also judicial review realisation, international legal cooperation, personnel maintenance, analytical activity and many other things. The question on reference of this or that kind of activity to the justice maintenance is not indisputable. At the decision of this question, in our opinion, it is necessary to start with position according to which certain activity of courts of justice is directed on realisation of directly judicial authority, and their other activity carries out functions on its maintenance.

Thus, judicial business includes two components: the activity directed on the permission of legal conflicts (justice is direct), and also the actions of personnel, financial, material and other character [42] directed on creation of conditions for full and independent realisation of justice which are legislatively designated as «organizational maintenance of activity of vessels» [43 [44]. These actions constitute the competence of courts of justice, do not reflect their imperious character. They are directed only on maintenance of activity of vessels that testifies about their subsidiary, auxiliary in relation to justice character. The procedure organizatsionnoobespechitelnoj activity of bodies of the judicial authority is regulated in wasps -

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novnom departmental normative acts.

- justice - courts carry out the first kind of activity on the basis of given by it the law of imperious powers (item 118 of the Constitution of the Russian Federation, item 4 FKZ «About the judiciary of the Russian Federation», item 4 FKZ from February, 7th 2011 №1-ФКЗ «About general jurisdiction vessels in the Russian Federation», the Code of Criminal Procedure of the Russian Federation etc.) in certain remedial forms - constitutional, civil, administrative and the criminal trial \\Thus, we are solidary with researchers who include in the maintenance of concept "justice" exclusively remedial activity of court [45 [46].

With reference to a theme of the present research we will underline, that activity on justice realisation on criminal cases is possible only within the criminal trial. Behind frameworks of this process of such justice cannot be.

Whether however all judicial business which is carried out in ugolovnoprotsessualnom a field, is justice? To the decision of this question the science, practice has not developed till now the uniform approach. Meanwhile brought attention to the question is not decided. We will imagine consequences of an exception of a range of justice of any kind of activity, the judicial review, for example: it loses the exclusive character, the result of the given activity (pravoprimenitelnyj the certificate) loses the value and possibility of a reinforcement measures of the state compulsion; the persons who are carrying out this activity, lose the statutory special status, i.e. Such fundamental bases of justice, as principles of independence of judges and their submission only Constitutions of the Russian Federation and to the federal act etc. are levelled.

In this connection it is obviously necessary to designate kinds of remedial activity the vessels concerning justice on criminal cases, and also their remedial borders.

As court activity is carried out within the limits of process, its character varies depending on this or that stage of legal proceedings (in work we will start with identity of concepts "criminal trial" and "criminal trial" [47]).

Within the limits of criminal trial by court following kinds of activity are carried out: a legal investigation in essence under the first instance; revision of the sentences which have not entered validity, definitions and court decisions in an appeal order; revision of the sentences which have entered validity, definitions and court decisions in cassation and supervising usages, and also on again opened circumstances; consideration of the questions connected with execution of sentence; the judicial review on pretrial stages. In connection with specificity of some stages of legal proceedings in a science there are discussions concerning the legal nature of various kinds of judicial business. So, one researchers believe, that justice constitutes only activity on consideration and adjudication in a proceeding stage \\others include in justice the activity which is carried out at all stages of criminal trial [48 [49] [50] [51]. Other positions which representatives exclude this or that stage from sphere of action of justice, for example, a stage pre-judicial a prorecension - are stated also

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stva or a stage of execution of sentence.

The position according to which justice is reduced to activity exclusively on consideration and the permission on the substance of criminal, civil, administrative affairs, during Soviet time has received rather a wide circulation [52]. It has been caused, as it is represented, specificity of the judiciary existing in those years and, as consequence, legal proceedings (for example, there was no constitutional legal proceedings and the judicial review behind activity of bodies of preliminary investigation). Besides, in item 4 of Fundamentals of legislation of USSR and allied res - publics about the judicial organisation it has been fixed, that justice is carried out by «... Considerations in sessions of the court of criminal cases, decisions of questions on guilt of defendants, applications of statutory punitive measures to the persons guilty of committing a crime, or justifications innocent» [53 [54]. In other words, the given position quite corresponded to the validity.

However in modern conditions such understanding of justice is inadmissible, that is caused by events in Russia legislative changes. It is a question of occurrence of one more implementer of the judicial authority - the constitutional legal proceedings (item 118 of the Constitution of the Russian Federation), judiciary change, a reconstruction in vessels of the general jurisdiction of appeal legal proceedings, court investment in criminal trial sphere control functions concerning activity of bodies of preliminary investigation. In this connection justice cannot be limited to proceeding frameworks in the trial court.

Owing to told inclusion in sphere of realisation of justice of control activity of court on pretrial stages is represented quite logical. Thus we will notice, that in the legal literature concerning remedial essence of the judicial review ambiguous enough opinions are expressed.

The specified kind of activity is specific enough, it does not form an independent stage of criminal trial and is carried out by court in sessions of the court on pretrial stages. Therefore Z.Z.Zinatullin and V.V. Zezjanov, for example, believe, that «.ne form maintenances of justice and made by court in pre-judicial manufacture of the decision, and also court activity on consideration of complaints as item 125 UPK the Russian Federation etc.». The similar point of view adhere to E.A.Zajtseva and N. V.Kosterina which consider, that the activity of the vessels (judges) which have been not connected directly with consideration and the permission of civil, criminal, administrative and arbitration affairs though it is carried out in the remedial form, pravosudnoj, however, is not [55 [56] [57].

Denying an accessory of activity of court on pretrial stages to justice, supporters of this approach differently define the legal nature that. One of them approve, that court activity at this stage of legal proceedings consists only in giving to decisions of bodies of preliminary investigation necessary lawful (legal) si - лы2, others recognise the judicial review as specific and independent function or the form of realisation of the judicial authority along with pra -

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vosudiem.

We do not divide these positions. In the given context I.L.Petruhina's pertinently such remark: « The judge does not turn to the inspector or the public prosecutor when it considers the petition for carrying out of a search, dredging, arrest etc. Or the complaint. It continues to carry out judicial function, solving the concrete remedial question arising on preliminary investigation. Such questions the judge or court solve and in a proceeding stage but then their reference to justice at anybody does not raise the doubts... The judicial review is not reduced to bezmotivnomu, to unreasonable acceptance on belief of the petition of the inspector. It is carried out at observance of the procedure peculiar to justice »1. The last proves to be true also legislative norms: in item 50 of item 5 UPK the Russian Federation is given a definition of concept of session of the court as remedial form of realisation of justice during pre-judicial and judicial criminal proceeding. That is the legislator carries to justice remedial activity not only in judicial stages, but also on the pre-judicial.

Thus, it is represented obvious, that control activity of court on pretrial stages on criminal cases possesses all signs of justice (the special subject, the remedial form, pravoprimenitelnoe the binding character decision) and enters into the justice maintenance.

Remedial features of a stage involve features of justice at this or that stage of legal proceedings, keeping thus its essence. Such state of affairs too gives rise raznoboj in sights of scientists in the given occasion. In particular, this remark concerns a stage of execution of sentence where intertwine organizational and remedial activity of court and judges.

For example, D. V.Tuljansky allocates three kinds of activity of court at the given stage: «remedially-administrative (the actions of court connected with the reference of a sentence in execution);) the activity connected with an establishment, research and an estimation of the various facts under the concrete maintenance, not connected with circumstances of the crime and the sentence taken out on it, but directly specified by the law (questions on a delay of execution of punishment, on is conditional-preschedule clearing of punishment, about transfer condemned from an educational colony in a corrective colony and many other things); the activity connected with"intrusion"of the judge in a sentence. This permission in a stage of any execution of sentence of doubts and the ambiguities arising at its reduction in is -

polnenie, including application of the criminal law, retroactive »[58].

It is possible to agree with scientific that the first kind of activity by justice is not as has is administrative-administrative character. Other activity is not that other, as justice.

Thus, we support a position [59] according to which justice includes all remedial activity of the judge, without dependence from criminal trial stages, as «... Everything, that is authorised and is considered by bodies of the judicial authority on the basis of the rules of jurisdiction defined by the legislator, already is justice as, actually, it is more anything court„ be engaged ^ cannot owing to that for it justice is exclusive actively - stju »[60]. The remedial essence of justice on criminal cases is expressed in its maintenance which consists in pravoprimenitelnoj the activity of courts of justice which is carried out in sphere of the criminal trial.

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A source: Nadeljaeva Tatyana Viktorovna. of FEATURE of the REMEDIAL FORM of DELIVERING JUSTICE ON CRIMINAL CASES With PARTICIPATION of MINORS In the TRIAL COURT. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg -. 2018

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