Conceptual Approaches to Understanding the Essence of Proof in the Science of Criminal Process in Ukraine
Abstract
The relevance of the issue stated in the paper is conditioned upon the existence of different scientific views in the science of the criminal process, both as to the essence of proof at large, and in relation to its individual institutions, categories and concepts, which were determined both by a philosophical and methodological basis inherent in certain periods of history, and by features of statutory regulation. The purpose of the paper is to distinguish scientific approaches (interpretations, concepts) to criminal procedural proof and substantiation of the expediency of isolation and use of the author's (complex and systemic) approach. The main approach to the study of this problem was to systematize approaches to criminal procedural proof on the basis of its substantive and functional understanding and to express critical (in both positive and negative terms) opinions on each of them. The paper proposes the identification of four different approaches to understanding the essence of criminal procedural proof: cognitive (wherein two types of interpretation are distinguished: logical (rational) and rational-empirical); active; integrated; complex and systemic. The materials of the paper represent both theoretical and practical value. They can be used for further scientific investigation of the nature of proof in criminal proceedings, as well as for the proper understanding and implementation of law enforcement criminal proceedings.
References
[2] Cheltsov-Bebutov, M.A. 1929. The Soviet Criminal Process. Legal Publishing House of NKYu.
[3] Dorokhov, V.Ya. 1964. The concept of evidence in the Soviet criminal trial. Soviet State and Law 9:108-117.
[4] Dzhatiev, V.S. 1995. On elimination of contradictions in the criminal process. State and Law 5:92-99.
[5] Filimonov, B.A. 1994. Fundamentals of the Theory of Evidence in the German Criminal Process. Spark.
[6] Foynitsky, I.Ya. 1996. The Course of Criminal Proceedings. Alpha.
[7] Gilinsky, Ya.I. 1981. On a systematic approach to crime. Jurisprudence 5:49-56.
[8] Gmyrko, V.P. 2010. Evidence in the Criminal Process: an Activity Paradigm. Theoretical Analysis. Problematization. SMD Representation. Acad. Customs Service of Ukraine.
[9] Gmyrko, V.P. 2011a. Fundamental axioms of the theory of proof in the criminal process of Ukraine. Bulletin of the of the Customs Service of Ukraine Academy 1: 142-150.
[10] Gmyrko, V.P. 2011b. Retrospective analysis of ideas about the nature of evidence in the criminal process of Ukraine. Bulletin of the of the Customs Service of Ukraine Academy 2: 112-119.
[11] Gmyrko, V.P. 2011c. The concept of ‘reflection’ and methodological problems of the theory of proof. University of Sciences. Notes: Science 3(39): 274-281.
[12] Gmyrko, V.P. 2015. Genesis of the theory of evidence of the domestic criminal process: methodological reflection. Journal of National University of Ostroh Academy 2(12). http://lj.oa.edu.ua/articles/2015/n2/15hvppmr.pdf.
[13] Goncharenko, V.G. 2014. Evidence in Criminal Proceedings. Precedent.
[14] Groshevoi, Y. 2004. Some problems of criminal procedure theory. Bulletin of Academy Right of Sciences 3(38): 134-145.
[15] Kovalenko, E.G. 2006. Theory of Evidence in the Criminal Process of Ukraine. Yurincom Inter.
[16] Lazareva, V.A. 2009. Proving in Criminal Proceedings. Allowance. Vyssheyeobrazovaniye.
[17] Liamets, V.I., and Tevyashev, A.D. 2004. System Analysis. KNURE.
[18] Lukashkina, T.V. 2009. Evidence and Proof in the Criminal Process. Criminal Procedure Law of Ukraine. Odyssey.
[19] Mikheenko, M.M. 1984. Proving in the Soviet Criminal Trial. Vysshayashkola.
[20] Obolentsev, V.F. 2016. Basic Principles of Systematic Analysis of Crime Prevention in Ukraine. Yuryt.
[21] Obukhovsky, V.A. 1926. Criminal Evidence in History and Soviet Law. Lawyer of NKYU.
[22] Pogoretsky, M.A. 2014. Theory of criminal procedural evidence: problematic issues. Law of Ukraine 10:12-25.
[23] Pogoretsky, M.A. 2015. A new concept of criminal procedural evidence. Bulletin of Criminal Proceedings 3:63-79.
[24] Shipilov, L.M. 2009. People's Rule as the Basis of a Democratic State. Kharkiv: Finn.
[25] Sluchevsky, V.K. 1910. Textbook of the Russian Criminal Process. Court Proceedings. Typography of M.M. Stasyulevich.
[26] Smorodinsky, V.S. 2001. Judicial Power in Ukraine (Theoretical Problems). Yaroslav Mudryi National Law University.
[27] Soroka, K.A. 2004. Fundamentals of Systems Theory and Systems Analysis. KNAMG.
[28] Spasovich, V.D. 2001. On the Theory of Forensic Evidence in Connection with Judicial System and Legal Proceedings. Lex Est.
[29] Stakhovsky, S.M. 2005. Theory and Practice of Criminal Procedure Evidence. NAUSU.
[30] Stoyanov, M.M. 2012. Legal basis for determining the properties of evidence. Actual Problems of State and Law 64:468-474.
[31] Vapniarchuk, V.V. 2017. Theory and Practice of Criminal Procedural Proof. Yurait.
[32] Vapniarchuk, V.V. 2018. Theoretical Basis of Criminal Procedural Evidence. Yaroslav Mudryi National Law University.
[33] Vapniarchuk, et al. 2019. Proposals on improvement of system of local elections by open party lists. Quarterly 1(39):386-394.
[34] Vapniarchuk, V.V., et al. 2018. Standards of criminal procedure evidence. Quarterly 7(37): 2473-2482.
[35] Vladimirov, L.E. 1910. The Doctrine of Criminal Evidence. Parts General and Special. Publishing. Prince boutiques ‘Pravo’.
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