COMPETENCE OF THE COURT, JUDGE IN CRIMINAL PROCEEDINGS: THEORETICAL DEFINITION AND REGULATORY BASIS
( Pp. 138-145)

Purpose, task: the competence of the court, the judge is traditionally based on such a constitutional provision as "the implementation of justice only by the court". From this provision, scientists conclude about the essence and content of the competence of the court, the judge in criminal proceedings, not different from the General legal understanding of it. However, modern criminal proceedings pose new challenges to the court, the judge, determines the need and appropriateness of the use of new approaches to the research of judicial activity, the primary basis of which is the competence. The study of this area allowed to formulate a number of judgments that indicate a possible change in scientific ideas about the essence of the criminal procedure competence of the court, judge, updating its theoretical interpretation and possible changes in its legislative definition. The main purpose of this study is to attract the attention of the scientific community to the problem of judicial competence in criminal proceedings, the feasibility of reviewing and updating the established theoretical structures and taking measures to optimize the legislative rules of its definition. The tasks set by the author are aimed at the theoretical substantiation of the provisions indicating the possibility and necessity of applying new approaches to the legislative regulation of judicial activity, and on this basis the development and formulation of proposals to clarify certain provisions of the criminal procedure law. Methodology: in the course of the study, various General and private scientific research methods were used: induction, deduction, generalization, analysis, forecasting, modeling, functional and structural analysis, systematic, logical, comparison, formalization, etc. Conclusions: as a result of the study, the following conclusions were formulated. 1. The study provided the following definitions: - the General competence of the court-a set of issues that determine the appointment of the court in modern society and the state (established by the Constitution of the Russian Federation); - special competence-the list of questions which permission belongs to specific court (it is established by the procedural legislation, according to rules of jurisdiction/jurisdiction, including, criminal procedural). Special (procedural) competence is characterized by the presence of several levels, its content is formed on the basis of the set of conditions established by the criminal procedure law. 2. Special (procedural) competence is based on differentiation of the questions which are under jurisdiction of courts within one form of legal proceedings and can have several levels: - the first level is determined depending on the nature of the legal proceedings in which the dispute arose (criminal procedure, civil procedure, etc.); - the second level is determined by the place of the court in the judicial system and is implemented already within a certain form of legal proceedings; - the third level clarifies the competence of specific judges (the President of the court of a certain level, a magistrate, a Federal judge). 3. The determination of the content of procedural competence in criminal proceedings depends on several conditions applicable in cases stipulated in the criminal procedure law: - depending on the stage of the process, for example, in pre-trial proceedings, the competence of the court includes one list of issues (part 2 of article 29 of the criminal procedure code), in the judicial is another competence, in the post-trial-the third; - from the form of judicial proceedings (General, special procedure, consideration of complaints in accordance with articles 125 and 125.1 of the code of criminal procedure), each of which is used to resolve a certain category of legal issues; - from the composition of the court (individual, collegial, with the participation of jurors); - from the form of prosecution (private, private-public, public), when in private prosecution, as opposed to private-public and public, the judicial competence covers the solution of the issue of reconciliation of the parties; - depending on the instance, there is a clear difference in the issues under consideration, for example, between the first and second instances. 4. We consider it expedient to legislate the procedural competence of the court, judges and their powers in relation to different stages of criminal proceedings and forms of judicial proceedings. To solve this problem, in particular, should: 1) change the title of Chapter 5- " the Court. Judge»; 2) in Art. 29 to change the title: "Competence of court, judge»; 3) introduce a new article 29.1 " Powers of a judge in pre-trial proceedings» "1. The judge in the course of pre-trial proceedings in a criminal case is authorized: 1) to accept to the production of the complaint, the petition declared according to part 2 of article 29 of the present Code about what to issue the resolution; 2) to send requests to public authorities, officials of bodies and organizations, to public organizations for the demand of documents and other materials necessary to establish the actual circumstances of the complaints and/or petitions in its production; 3) to demand from citizens the documents and other materials available to them necessary for establishment of actual circumstances on the complaints and/or petitions which are in its production; 4) to interrogate, confront, examine objects, disclose written materials, appoint and conduct a forensic examination of the suspect, the accused to determine the possibility of applying detention as a preventive measure or extension of detention; 5) examine the evidence presented by the participants of the court session and, if there are grounds, decide on their inadmissibility; 6) in case of satisfaction of petitions of participants from protection about accession to materials of judicial production of the documents, other materials having essential value for establishment of the actual circumstances on criminal case, to direct the specified materials to the investigator, the investigator for consideration of a question of their accession to materials of criminal case as proofs. Copies of these materials are attached to the court proceedings; 7) when establishing violations of Federal legislation in the actions and / or decisions of officials of the preliminary investigation bodies, the Prosecutor, other officials of bodies and organizations, including public, as well as individual citizens, to make private decisions against them. 2. A request by a judge made within the limits specified in paragraph 2 of part 1 of this article shall be binding on all persons to whom it is addressed. The request is subject to immediate execution, and if necessary, the preparation of documents requested by the judge, within 24 hours. The judge must be notified immediately of the inability to provide the materials requested by the judge, as well as of the reasons for their failure. 3. In case of non-execution of the request of the judge by the person to whom it is addressed, the monetary penalty in the order provided by article 118 of the present Code can be imposed". Possibility of further use: the Obtained results form the basis for the continuation of scientific research in terms of the development of the doctrine of judicial competence, the procedural position of the court in criminal proceedings, the powers in the court session to establish actual and other significant circumstances. The results obtained and proposed for publication can be useful in optimizing the legislation of the Russian Federation, judicial and investigative practice, as well as be used in teaching relevant training courses in the field of "Jurisprudence" (bachelor's, master's, postgraduate). Practical importance lies in deepening and concretization of modern scientific knowledge in the field of procedural position of the court, judge, their functions in criminal proceedings and allow to solve interrelated problems of legislative, investigative and judicial activity. The social significance of the results of the study is due to the emergence of an opportunity to significantly increase the level of ensuring the constitutional rights and legitimate interests of participants in criminal proceedings. The value of the study and the results obtained is due to the author's contribution to the deepening of theoretical knowledge about the criminal procedural competence of the court, judge, determining the trends of its modern improvement, development of prospects for its development, taking into account the changing conditions in the field of criminal justice, the development of its forms. On the basis of the conducted research new knowledge about procedural position, competence, status, functions of court, judge in criminal proceedings is received, measures on formation of complex restructuring of legislative regulation of powers of court, judge at various stages of criminal procedural activity are taken, perspective directions of improvement of the criminal procedural status including in the sphere of proof are defined. The work is intended for researchers and practitioners, students of law schools, graduate students, applicants.

Ovchinnikova E.A., (2019), COMPETENCE OF THE COURT, JUDGE IN CRIMINAL PROCEEDINGS: THEORETICAL DEFINITION AND REGULATORY BASIS. Gaps in Russian Legislation, 7 => 138-145.

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court, judge, competence, procedural status, functions, criminal proceedings.