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The article reviews approaches towards regulation of a fact to be proven (thema probandum) in the Russian Federation and foreign jurisdictions, analyzes views of pre-revolutionary and soviet lawyers of this legal category. The author justifies the opinion that the highly structured nature and formality of a fact to be proven in Russia (Art. 73 the Criminal Procedure Code of the Russian Federation) is rather a disadvantage. In practice, it results in difficulties in the establishment of a thema probandum in a specific case where the crime is complicated and non-trivial. The author argues that general regulation of a thema probandum through the principle of relevance upon preservation of the list of issues resolved by court in a final judgment will make the process of investigation of highly profitable crimes more efficient and raise guarantees of the right to defense.
Ekaterina E. Shataylyuk (Thu,) studied this question.