Яковлев Никита Александрович

кандидат юридических наук, доцент кафедры уголовного права

Липецкого филиала Российской академии народного хозяйства и государственной службы при Президенте РФ

ПРОБЛЕМЫ ДОКАЗЫВАНИЯ И ДОКАЗАТЕЛЬСТВ В УГОЛОВНОМ ПРОЦЕССЕ

PROMBLEMS OF SHOWING AND PROOFS IN CRIMINALLY PROCESS

Showing - reception of proofs and operating by them with a view of reconstruction of the valid picture of studied event - is unique means of achievement of the purposes of legal proceedings, i.e. protection of the rights and legitimate interests of victims and protections of the person from illegal bringing to criminal liability, restriction of its rights and freedom (item 6 of Code of criminal procedure the Russian Federation). Outside of evidentiary activity judicial authority realization, namely the permission court of social conflicts in right sphere, is impossible. Therefore showing and proofs, according to last and new researchers, were and remain a core of criminal legal proceedings.

Now in the theory and practice of the Russian criminal trial the point of view according to which proofs are understood as any received of the sources established by the law and in the order of data established by it, on which basis in the order defined by the law inquiry body prevails, the inspector and court establish the circumstances important for criminal case (item 74 of Code of criminal procedure the Russian Federation). The proof in criminal trial should answer two legal requirements shown accordingly to its maintenance and the form, - relevance to the crime and admissibilitie [1, С. 230].

In the legal literature the wide circulation has received definition relevance to the crime and admissibilities as properties of the proofs characterizing accordingly their maintenance and the form [2, С. 40]. Such understanding relevance to the crime and admissibilities is represented inexact. Its use in practice complicates collecting of carried and admissible proofs. The matter is that at such approach the attention of law enforcement is accented on qualities of already collected proofs. This conclusion proves to be true judgement of supporters of an analyzed sight according to which relevance to the crime and an admissibility are criteria of an estimation to which there should correspond each of the proofs used by the inspector, the public prosecutor, court for a substantiation of conclusions on business. Certainly, the collected proofs from point of view of the subject who has generated them should be carried and admissible. With it nobody argues. However they will be those only in the event that the requirements of the law turned to their maintenance and the form, will be considered by subjects of showing not after the proof is already generated and its check and an estimation, and much earlier - is carried out even by preparation and carrying out of the investigatory and judicial actions directed on collecting of proofs. Only at observance of the given condition formation of carried and admissible proofs is provided. Both the understanding relevance to the crime and admissibilities of proofs as the legal requirements shown to their maintenance and the form, also focuses of law enforcement on their account when proofs are just formed, instead of when they are already generated.

Supporters of understanding relevance to the crime and admissibilities as properties of proofs it is free or involuntarily, but existence of proofs in a ready kind actually start with. Thus, for example, relevance to the crime becomes really inherent in data on the facts objectively, irrespective of will of the legislator to which as representatives of the given point of view believe, it is necessary to mediate this objective property only [3, С. 115]. In practice relevance to the crime, an admissibility can't be objective properties, qualities of proofs owing to that proofs (as the data important for criminal case) in the objective validity before manufacture of corresponding investigatory and judicial actions simply don't exist. Besides, carried and admissible there can be not all received during manufacture on proof criminal case.

The concept of showing is inseparable from its philosophical basis - knowledge. This circumstance always gave rise to theoretical disputes on a parity of these concepts; disputes also concerned maintenances and structures of showing, a circle of subjects and a duty of showing, features of its realization at various stages of process etc.

Haven't ceased, and these discussions with acceptance Code of criminal procedure the Russian Federation, on the contrary, have become aggravated 2001 in which basis the legislator has put a backbone principle of competitiveness. Having differentiated remedial functions of the parties and having defined a court role as the arbitrator in their dispute, the law has allocated the charge and protection parties with the wide rights, having transformed them, thus, into active figurants of the showing, having possibility to convince court in correctness of the position. It has induced researchers to subject to the critical analysis many positions of the theory of proofs from the point of view of their conformity to new statutes.

In this situation we will try to analyse sights of researchers on the most important problems of showing and on this basis to prove on them the position.

Throughout many years in the theory of proofs has affirmed before-stavlenie about showing as knowledge (direct and is mediated the) events of the past, carried out by the inspector, the public prosecutor, court as the special remedial form - by collecting, check and an estimation of proofs. Also it is accepted to treat showing in wide and narrow senses: in the first - as realisation of all informative activity of the subjects conducting process, covering not only an estimation, but also collecting and check of proofs, in the second - only as logic activity on a substantiation of the put forward thesis [4, С. 125]. Such representation finds support and in the general theory of the right. For example, according to S.S.Alekseeva, «showing (in a broad sense) is the activity of subjects directed on an establishment by means of proofs of the validity of circumstances of business». Here the author includes collecting, research and an estimation of proofs. «Narrow sense concept of showing... Consists in activity on a substantiation of put forward arguments and objections, on belief in their validity of those or other persons».

According to these representations the duty of showing also can be treated in double sense - as a duty of collecting, check and an estimation of proofs with a view of an establishment of true and as a duty to prove the conclusions by means of proofs. It is natural that those and other duties lie on the bodies of the state which are carrying out showing, - on the inspector, the public prosecutor, court though its maintenance for each of these bodies appears various.

However there are also different views on proofs. In works of some researchers the term «criminally-remedial showing» is quite often used, allowing to consider that exists and other showing. It would be possible to agree with this term if to designate it evidentiary activity in one of three spheres of realisation of jurisdiction. Then other versions of showing would become «civil-remedial» and «administrative-remedial» showing though taking into account common features of remedial knowledge corresponding kinds of informative activity are more preferable for calling showing in criminal, in civil or administrative process. However supporters of this term put in it wider sense, believing that exists certain, not limited to sphere of jurisdiction, and universal for any informative activity of people showing. «Judicial showing, - wrote A.A.Ejsman, is a special case of showing in general, i.e. the special way of information transfer connected with a substantiation of transferred data» [5, С. 75]. If to rise on such point of view really there are bases to allocate a legal version «showing in general», i.e. showing criminally-remedial, civil-remedial and etc. Similar universal representations divide I.M. Luzgin, R.G. Dombrovsky, V.S. Dzhatiev, A.A. Davletov and many representatives of a civil-remedial science.

We suppose that it is impossible to agree with such representation, for it does not correspond to starting positions of the theory of knowledge. First of all there are no bases to assert that in the theory exists of universal notion of showing. As it is known, for a designation of procedure of reception knowledge of the logic uses notion «proof» which has firmly settled in this and others (first of all mathematical) areas of a science, has, hence, universal character. Therefore there is no necessity to force out its another, borrowed of jurisprudence, concept.

Литература:

1. Alexeyev S.S. Problem of the right theory: Textbook. M.: Phoenix, 2010 T. 2. p. 248.

2. Aicman А.А. About concept of a material evidence and its parity with concepts of proofs of other kinds//Questions of the prevention of criminality: M.: Phoenix, 2010. p.82.

3. Dombrovsky R.G. Correlation of knowledge and showing in judicial research. M.: Norma, 2009. p. 178.

4. Davletov A.A. Bas of criminally-remedial knowledge: Textbook. M.: Norma, 2008. p.205.

5. Ailes I. Unity of practical and theoretical in the true proof // Problems of a scientific method. М.: 2009, p140.