Archives - Page 2

  • Russian Law: Education, Practice, Research. 2020. № 2
    No. 2 (2020)

    THEORY OF STATE AND LAW

    Onosov Yu. V.

    Limits of Legal Regulation and Discretion in Law: on the Correlation of Concepts

    The author considers the logical connections between the content of the concepts «limits of legal regulation» and «discretion in law» in terms of the ratio of their volume. At the same time, the content of the concepts «legal regulation», «legal impact», «limits of legal regulation» is specified.

    The features characterizing the limits (scope) of legal regulation are identified: the conscious-volitional nature of social relations; the possibility of external control of public relations by the state; the importance of public relations; the opportunity for subjects of public relations to choose a behavior option, etc. The features of discretion in law are the possibility of implementation only within the framework of the subject of legal regulation; legality; expression in the passive or active behavior of the subject, etc.

    It is concluded that these concepts are not identical, but rather, are subordinate and are included in the scope of the concept of «legal impact». They are comparable because they have common features (for example, the existence of an authority establishing public relations and being expressed in a legal act), as well as related ones, since their volume partially coincides.

    Keywords: limits of legal regulation, discretion in law, judicial discretion, features of discretion in law, legal regulation, legal impact, subject of legal regulation, criteria for establishing the limits of legal regulation

     

    Perepelitsa E. V.

    Electronic Communication in the Paradigm of Interaction of State and Society

    In recent decades, the phenomenon of mass electronic communication has been studied by various sciences. The right also turned out to be included in a similar discourse. Communication in the digital environment is the reason for the interaction of previously distant segments of society. In modern law, the concept of electronic communication remains in a certain sense debatable, it is often identified with legal communication. At the same time, electronic communication has an additional «dimension». The globalization of the information space encourages legal scholars to study electronic communication as the action and interaction of various actors, based on Internet technologies using web services, portals, blogs, websites, social networks. There is a need for re-levant legal regulation of the informational interaction between the authorities and society in the Republic of Belarus, in connection with which a new «field» is opening up for activities in various areas of law. The meaning of electronic communication is constantly expanding and, depending on the specialization, even varies. For an adequate understanding of electronic communication, law must take into account the tools of other humanities.

    In contact with the digital environment, legal science is called upon to reformat research tasks to explain the new empirical and theoretical experience associated with the transformation of the paradigm of interaction between the state and society in the network structures. The author comprehends these issues in relation to the conditions of development of e-government in the Republic of Belarus and the need for more active involvement of the public in the government.

    Keywords: electronic communication, civil society, information technologies, e-government, public participation

     

    LAW AND INFORMATION TECHNOLOGY

    Dzhenakova E. V.

    Characteristics of Legislation on Legal Relations of Information Dissemination

    Information and telecommunication technologies have radically changed all social relations. This required corresponding changes in the information legislation. System of legal norms regulating information relations has been updated and increased. However, this changes did not improve legal regulation of information relations. Scientists emphasize that imperfection of information legislation depends on inadequacy of legal norms. Legal scholarship discover different defects of legal norms: antilogy, deficiency of law, inadequacy in logic, duplications and declarativity of norms. Legislation on information dissemination is also characterized by these defects. They entailed problems of application by the courts. Scientific immaturity of legal regulation of information relations is noted. The necessity for creating special legal act, which will regulate relations on information dissemination, is justified.

    Keywords: legal regulation of relations on information dissemination, legislative system of information dissemination, defects of norms, antilogy, deficiency of law, duplications

     

    INTERNATIONAL LAW

    Bezborodov Yu. S.

    Colonial Integration: Back to the Future

    Modern interstate cooperation is characterized by regression and a rollback to the methods of the pre-UN era, when states resorted to aggression and waged aggressive wars in the absence of legal regulators. After the appearance of such regulators with the signing of the UN Charter, the situation became more complicated: aggression and wars did not disappear, but began to occur in other forms and with the use of non-physical weapons: information, economic, political and even legal. The imperfection of international law – as a relatively young legal system – only contributes to this.

    The same method of interstate cooperation can be both progressive and regressive. And integration is among such means. This article is devoted to the study of integration as a means of pressure and covert aggression in interstate cooperation. The author presents a different understanding of integration in the ontological aspect. In the doctrine of international law and international relations, integration is seen as a method of approximation of legal systems. But with the existence of a vice of will, when integration is initiated with obscure goals and may violate the fundamental principles and norms of international law, this method turns into a special kind of oppression of sovereignty and colonial foreign policy.

    Keywords: international law, international relations, integration, weapons, pressure, colonialism

     

    INTERNATIONAL COMMERCIAL ARBITRATION

    Grubtsova S. P.

    State’s Arbitration Proceedings Participation: Theoretical and Practical Aspect

    In modern conditions, interest to public law participants in transnational contracts to appeal to arbitration, which, in turn, is determined by a very significant share of the Russian Federation in its economy attaches importance of the perspective of the study of international commercial arbitration, oriented towards the participation of the state in the broad sense, proposed in the article.

    The article deals with the main aspects of state participation (in a broad sense) in arbitration of legal disputes, such as interaction models between state courts and arbitration tribunals; disputes arbitrability involving the state; special competence as a basis for participation of subjects vested with authority in the arbitration agreements conclusion; problems of correlation between the confidentiality of arbitration proceedings principle and the possibility of civil society to obtain information on disputes in international commercial arbitration with the state participation; the tendency of contractualizing Russian and foreign jurisdictions’ civil procedure in disputes involving public elements.

    Keywords: arbitration, international commercial arbitration, arbitrability, arbitration proceedings, disputes involving the state

     

    COMPARATIVE LAW

    Serkova Yu. I.

    Evolution of the Procedure for Empowering the Governors in the States of the USA

    The article discusses the development of the procedure for empowering the governors of the states of the United States of America. The models of empowerment of governors, requirements for candidates for governor positions, the terms of the latter’s exercise of power both now and in retrospective are examined.

    The provisions of the constitutions of the states of the United States of America, fixing the requirements for candidates for the positions of governors of the states, are not always identical. Despite the existing differences established by the state constitutions regarding the requirements for candidates for governor positions and the terms for exercising the powers by governors, the procedure for electing state governors is the same. The increase in the term for exercising the powers by governors is due to an increase in the role and importance of governors as officials in charge of state executive power.

    Particular attention is paid to the study of requirements for candidates for governors. In addition to age qualifications and qualifications for citizenship, residency qualifications in the state where the candidate is running for governor are of prime importance. An in-depth study allows to track trends related to both the development of the procedure for vesting powers with governors and the change in the constitutional and legal status of governors as a whole. A key advantage of the constitutions of some states is the limitation of the duration of the state governors in their posts, thereby ensuring the effectiveness of the activities of the governors and executive power of the states.

    Keywords: state constitutions, governor, procedure for empowering the governor, requirements for the candidate for the office of governor, election of governor

     

    CIVIL AND BUSINESS LAW

    Murzin D. V.

    Organizer of Scientific Activity as a Subject of Intellectual Rights

    The author analyzes the legal status of the organizers of artistic creation, enshrined in the Russian legislation de lege lata, and develops the legal status of the organizer of scientific activities de lege ferenda. It is proposed to consider the organizer of scientific activity as only the head
    of the temporary scientific team, the purpose of which is to solve a specific scientific problem. A set of elements of the legal structure is formulated, which may be fixed in a normative manner in order to ensure uniformity of legal regulation of the activities of temporary research teams.

    The status of the organizer of scientific activity is determined on the base of his organizational efforts to guide the creative activities of the team (a distinction is made between the creative and organizational contribution of the head of the scientific team to the overall result). Various options for modeling the legal status of the organizer of scientific activities are discussed: inclusion of the organizer among the co-authors the scientific results obtained by the team; inclusion of the organizer among the co-authors in case if he / she has a creative idea (topic) of academic search; granting the organizer related intellectual rights to the entire result obtained by the team. It is presumed that the organizer of scientific activity is the author of the idea of scientific search for solving the task set for the temporary team.

    It is concluded that the organizer of scientific activity (the head of the temporary scientific team) must be endowed with related intellectual rights: 1) the exclusive right to use the scientific result obtained by the team as a whole, and 2) the personal non-property right to indicate his name in any use of this result. The author substantiates the content, non-turnover and special validity period of the exclusive right of the organizer of scientific activity.

    Keywords: science, creative relations, organizer of scientific activities, intellectual rights, exclusive rights, related rights, co-authorship, civil status of the subject, head of the creative team, temporary scientific team

     

    Tolmachev I. A.

    Legal Aspects of Preventing Bank’s Insolvency by Means of the Fund of Banking Sector Consolidation

    Bank’s insolvency is a special case of bankruptcy of a company, however, it leads to the most negative consequences for business. It does not only reduce the rights of direct creditors of banking organizations, but also destabilize the financial system of the state. In this regard, measures of the Fund of Banking Sector Consolidation (FBSC) to prevent bankruptcy are analyzed. The legal status of the Fund in relation to other investment funds is investigated. It is concluded that the FBSC has the features of a unit investment fund.

     The legal aspects of «bail-in», a mechanism for restoring the solvency of banking organizations, primarily at the expense of their shareholders and creditors (in contrast to the «bail-out» mechanism involving state charge), are also considered. It has been revealed that the measures implemented by the FBSC have led to a significant reduction in government spending. At the same time, the mechanism can cause the nationalization of many banks and reduce competition in the banking market. If it is impossible to transfer a sanitized bank to a private investor, the number of credit organizations with a prevailing state participation will increase.

    Keywords: bankruptcy, credit organizations, the Fund of Banking Sector Consolidation (FBSC), bankruptcy prevention measures, «bail-in»

     

    CRIMINAL LAW

    Sabitov T. R.

    Do Principles of Criminal Law Policy Exist?

    The problems of implementing criminal law policy are always of high relevance due to the fact that there is no universal model for such a policy. In each state it is necessary to find its own model based on the needs of society. The main problem considered in the article is related to finding ways to identify key provisions of the criminal law policy – the principles of criminal law. The difficulty is that such principles are not specifically formulated in any legal act. Moreover, legal principles need not be specified in law.

    The author compares two related legal categories – the principles of criminal law policy and the principles of criminal law. Studying various points of view regarding the distinctive features of these principles, the author concludes that there are no significant differences between the principles of criminal law policy and the principles of criminal law. The system of criminal law principles does not imply the allocation of the principles of criminal law policy as its separate link. The principles of criminal law are not based on the principles of criminal law policy, because any criminal law principle can be considered as criminal political. According to the author, the political feature is already inherent in the very nature of the legal principle.

    Keywords: criminal law policy, principles of criminal law policy, principles of criminal law, legal policy, justice

     

    CUSTOMS LAW

    Chermianinov D. V.

    On the Causes of Violations of Norms Governing Customs Procedures

    The Customs Code of the Eurasian Economic Union contains a large number of provisions on the procedure for the correct use of customs procedures, including a detailed description of the relevant restrictions. The practice of various courts of the Russian Federation allows us to conclude that there is a significant number of administrative offenses related to non-compliance with customs procedures. In most cases, the objective side is identified in the process of various control measures implemented by the customs authorities and the presence of offenses is not in doubt. But there are more complex cases.

    A specific situation is considered, on the example of which the causes of such conflicts are highlighted. They are: the unclear provisions on the procedure for declaring goods imported into the customs territory as components of vehicles previously placed under the customs procedure «temporary import», as well as the lack of criteria separating the concepts of «overhaul, modernization» and «maintenance». According to the author, one of the criteria determining the difference between these concepts may be the amount spent in the implementation of manipulations with the goods. For example, if the amount spent on the maintenance of temporarily imported goods exceeds a certain percentage of the value of the goods, such operations should be considered capital repairs. This means that it is mandatory to change the customs procedure by submitting a declaration for the goods to the customs authority. Otherwise, the manipulations performed should be considered maintenance, in which the customs procedure should not be changed.

    Keywords: customs procedures, declaration, temporary import, efficiency, violation, non-compliance, criteria

     

    SOCIAL SECURITY LAW

    Shaykhatdinov V. Sh., Listopad O. F.

    The Relation Between Social Security Law and Environmental Law

    Among the measures of protection of human health is the elimination of the harmful effects of environmental factors. The social security law regulates public relations to preserve the health of citizens in terms of providing them with free medical care, and the environmental law protects human health by maintaining a favorable environment. In the social security law, an imperative method of legal regulation is used due to the specifics of the legal status of the subjects (the absence of equality and subordination between them). In environmental law, both the imperative and the dispositive methods of legal regulation are used.

    The authors emphasize that the need for interaction between the considered branches of law becomes especially relevant when implementing state policy in the field of protecting the health of citizens in order to bridge the gap between the health indicators of the population of Russia and economically developed countries. In strategic plans, the task of enhancing the role of human capital as the main factor in economic development is brought to the forefront. To achieve this goal, it is necessary to improve the living conditions of Russian citizens and maintain a favorable environment. At the same time, the authors draw attention to a number of problems that complicate the preservation of the health of citizens in the Russian Federation, and offer some social protection measures in order to mitigate the negative effects on the health of citizens if they live in ecologically unfavorable territories.

    Keywords: interaction of branches of law, the right to a social environment, the right to a dignified life, air pollution, preservation of the health of the nation

     

  • Russian Law: Education, Practice, Research. 2020. № 1
    No. 1 (2020)

    CRIMINAL PROCEDURE AND CRIMINALISTICS

    Rudich V.V.

    Admission of a Notary to Entrepreneurs in Custody: Problems of Implementation

    The relevance of this work is due to innovations in the Russian criminal procedure legislation, according to which the right to see a notary was provided for entrepreneurs in custody. The author has studied the notary’s access to such business entities as individual entrepreneurs in the case of a crime committed by them in connection with their business activities and (or) the management of their property used for business purposes, as well as members of the management bodies of a commercial organization in connection with the exercise of their powers to manage the organization or in the implementation of business activities by a commercial organization.

    On the basis of the Russian criminal procedure and notary legislation, the author indicates possible options for applying a preventive measure in the form of detention in respect of persons who have committed crimes in the sphere of business activity; the issue of changing the legislation governing the admission of a notary to persons in custody accused of committing crimes in the sphere of business activity, and the conditions for carrying out notarial actions is considered.

    The author analyzes the issue of the need to perform notarial actions in relation to citizens of another category (not entrepreneurs), in respect of which a preventive measure in the form of detention has been chosen. The issues of possible abuse of the right to meet with a notary, carrying out notarial actions and registration of notarial documents are considered.

    Keywords: preventive measure, detention, accused, suspect, business activity, meeting with a notary, power of attorney

     

    Sergeev A.B., Sergeev K.A.

    Criminalistic Characteristics of Persons Who Have Committed Criminal Acts Provided for in Paragraph «D» of Part 3 of Article 110.1 of the Criminal Code of the Russian Federation

    It is proved that there is a need to develop a forensic characteristic of a person who performs actions aimed at inducing suicide or facilitating suicide using information and telecommunications networks.

    It is indicated that criminally significant information about the identity of the accused contributes to solving multi-level problems of theoretical and legal, forensic, organizational and procedural nature allows the investigator to prevent the promotion of erroneous versions, to refrain from conducting investigative actions and operational search activities that do not ensure the completion of the proceedings in a reasonable time, etc.

    The example given in the article contains interesting and criminally significant information about the accused. However, empirical base is not big enough for us to say which of the accused character traits are typical and how frequently they will be observed in those accused of committing similar crimes. At the same time, they form a primary idea of a possible set of typological features. The study of subsequent examples from judicial practice and the results obtained can be compared with existing ones. With constant analytical work, the task of forming a typical portrait of a person who commits criminal acts aimed at inducing suicide using information and telecommunications networks (including the Internet) will be solved.

    Keywords: forensic characteristics, information and telecommunication networks, incitement to suicide

     

    Shishkina E.V.

    Conditions for Effective Investigative Actions

    The problems of the effectiveness of investigative actions are an integral part of the problems of the quality of investigation, which determines the relevance of their research. The article discusses various points of view on the concept of investigative actions effectiveness, and based on the analysis, the conclusion is formulated that a special approach is necessary to assess the results of activities in a specific area of crime investigation.

    The main conditions for improving the effectiveness of investigative actions are formulated. The first condition is setting the correct, tactically justified goal of the investigative action, which can include intermediate goals. The second condition is the correct choice of investigative action, taking into account its essence and purpose. The significance of the essence of an investigative action for practical activities is justified. The author’s position is based on distinguishing the investigative experiment and checking the evidence on the spot. The third condition concerns the rules for selecting the most effective investigative action among the possible ones, taking into account its tactical capabilities in the current investigative situation.

    Effectiveness of investigative actions also depends on the correct choice of their sequence in the framework of tactical operations and at various stages of the investigation, as well as tactically justified decisions about the tactics used in their conduct.

    Keywords: investigative action, effectiveness, intermediate goals, specific essence, tactically justified choice, tactical drawing

     

    Sorokotyagin I.N., Belyaeva E.R.

    Features of Interaction of Experts at the Initial Stage of the Investigation of the Falsification of Results of Operative-Search Activities

    Features of the application of expert techniques in the investigation of falsification of the results of operational-search activities are disclosed (Part 4 of Article 303 of the Criminal Code of the Russian Federation). the main reasons for the poor-quality investigation of such crimes include shortcomings in the interaction between investigators and expert institutions, the inefficient use of operational information in order to find possible sources of evidence.

    The authors analyze the activities of the Investigative Committee of the Russian Federation in this area. At the time of its formation, the Committee had no departmental system of expert support. Subsequently, expert units were created in it, where the most popular high-tech expert studies are carried out, while in other departments their application caused problems. In particular, psychophysiological, computer-technical, and forensic medical examinations are conducted at a high level. In support of the article, examples from practice are given.

    The main innovative directions of scientific expert research in the investigation of crimes under Part 4 of Article 303 of the Criminal Code are indicated. Among them, the development of domestic instruments and technologies for the study of human DNA; equipment for finding bodies under the surface of the earth and in the aquatic environment; methods of searching for people in various landscape, temperature and weather conditions, etc. In addition, special courses and training events are organized for experts of the Investigative Committee of the Russian Federation, and the country’s leading specialized universities participate in this. The legal regulation of the organization and conducting of forensic examinations in the Committee is being improved.

    Keywords: development of innovative genogeographic and ethnogeographic examinations, genomic technologies for personal identification, hypnoreproduction examinations, system of psychological zombies, falsification of the results of operational-search activities

     

    CRIMINAL LAW AND CRIMINOLOGY

    Kokotova D.A.

    Criminological Expertise of Paragraphs 19, 34, 38, 51.1 of the Regulations «On Awarding Scientific Degrees»

    This article is devoted to the consequences of violation of paragraph 14 of the Regulations «On Awarding Scientific Degrees» and submission of false information about publications as a factor of delinquency. These consequences are fighting against violations of requirements of citations, references and publication of results of dissertations. However, these norms now are not actively executed. The reason of such situation may be partly connected with characteristics of the Regulations.

    The criminological expertise is based on the following principles: analysis and conclusions depend on the choice of the criminological theory (it is C. Beccaria’s ideas for such expertise); it is possible to use different criteria; it is possible to analyze any items (not only rules of law), any violations (not only penal acts).

    The results of the expertise:

    1) there is a contradiction between analyzed items and paragraph 20 of the Regulations;

    2) legal criteria of differentiation (is it the same dissertation, which cannot be defended repeatedly, or a new dissertation of the same applicant, which can be submitted to a dissertation board?) and rules on the procedure of execution of deprivation of right to defend a dissertation repeatedly and the persons responsible for such execution are not determined;

    3) these contradictions and gaps in the Regulations can cause its violation or incorrect execution and can reduce effectiveness of such a punishment as deprivation of right to defend a dissertation repeatedly.

    Keywords: deprivation of right to defend a dissertation repeatedly, new dissertation, effectiveness of punishment, criminological expertise, C. Beccaria

     

    Hlus A.M.

    Criminal-Legal and Criminalistic Bases of Formation of the Methodology for Investigation of Embezzlement by Abuse of Authority

    The article discusses a special method of investigating embezzlement by abuse of authority. Its elaboration on the basis of the forensic characteristics does not contribute to the disclosure of the material elements of the structure of embezzlement in the process of its investigation. Currently, the criminalistic characteristics of crimes are dominated by criminal law and criminological knowledge, which is not correct from the perspective of reflecting the realities of a criminal act.

    According to the author, the basis of the criminalistic characteristics of embezzlement through abuse of authority, should be knowledge of the general elements of their material structure. In the future, information about these elements should be one of the main parts of the criminalistic characteristics of a crime. Knowledge of the elements of the material structure of the crime, combined with their criminalistic characteristics, provide a solid basis for constructing special methods for investigating embezzlement through abuse of authority. In investigating crimes, knowledge of the abovementioned elements allows us to understand the structure of the investigated act, to reveal the presence (absence) of significant information for each of its elements. Correlation of the available information about these elements with their description in the criminalistic characteristics of the crime helps to choose the direction of the investigation, put forward the appropriate versions and determine the set of tactical tools necessary to verify them.

    Keywords: criminal law, embezzlement, abuse of authority, official, forensic science, crime investigation methodology, criminalistic characteristics of crimes, material structure of crimes

     

    CONSTITUTIONAL LAW

    Kravtsova E.A.

    On the Need to Form Constitutional (Statutory) Courts
    in the Subjects of the Russian Federation

    The mandatory existence of independent legislative, executive and judicial branches of government at the level of the Russian Federation constituent entities is defined by the concept of federal relations, which are organically derived from the text of the Constitution of the Russian Federation. However, the analysis of the system of state authorities that has actually developed in the subjects shows that it is possible to speak of a really functioning independent triad of authorities only in those subjects of the Russian Federation in which the constitutional (statutory) courts are established and functioning. Currently, such courts operate only in 16 regions of the Russian Federation, and there is a tendency to further reduce their quantity. The purpose of this article is to analyze the current situation in the sphere of establishment and functioning of the independent judiciary, at the level of constituent entities of the Russian Federation, development of proposals to bring the situation in accordance with the regulations of the Constitution.

     Having analyzed current Russian and foreign legislation, the author proposes to provide for the mandatory establishment of constitutional justice bodies in the subjects of the Russian Federation, giving the subjects of the Russian Federation the right to organize the activities of these courts not on a permanent basis, but by convening judges as necessary to consider specific cases.

    Keywords: judicial system, federalism, state authorities of the subjects of the Russian Federation, subjects of the Federation, constitutional courts of the subjects of the Russian Federation

     

    Sten’kin D.S.

    Constitutional Prohibition as a Way of Addressing the Issue of the Homeless in Hungary

    The Basic Law of Hungary was adopted in 2011, and since then seven amendments have been introduced to it. A number of amendments caused criticism in Hungarian society. The author analyzes the prohibition of being in a public place for the purpose of living, and highlights four reasons for such a strict regulation of housing issues. The first one is related to the migration crisis in Europe and the dominance of refugees in Hungary; the second one is connected with a referendum on migration quotas in 2016; the third cause is a lot of people in difficulty due to the economic crisis in the country; the fourth one is related to numerous protests against unpopular government reforms.

    In part 3 of Article XXII of the Basic Law, a direct ban on living in public places was enshrined. According to Hungarian human rights organizations, it is a serious violation of human dignity and freedom of movement. The Hungarian Constitutional Court, by contrast, argues that homelessness is not part of the right to human dignity. The author of the article, in turn, points out that the Hungarian Basic Law obliges the state or local government to provide decent housing to the people living in Hungary. The adoption of the new rules clearly indicates the contradictory nature of the Constitution, as well as the fact that the state intends to solve opportunistic tasks by introducing such prohibitions.

    Keywords: the Basic Law of Hungary, the Constitution of Hungary, Hungary, constitutional development of Hungary, constitutionalism, constitutional changes, the State Assembly, the homeless

     

    Nechkin A.V.

    Political Opportunism of Constitutional Reforms in Russia and Other CIS Countries: Past, Present and Future

    The constitutions of most CIS countries have been being reformed for quite a long time and sometimes with unclear goals and mutually exclusive results. In this paper, a politically opportunistic constitutional reform is defined, its characteristics are highlighted. General scientific (comparison, analysis, synthesis) and specific scientific (comparative legal and special legal) methods allowed to give examples of such reforms undertaken or preparing to be undertaken in the CIS countries. Special attention is paid to the upcoming constitutional reform in Russia, which also has characteristics of a politically opportunistic one.

     The author notes that in a number of CIS countries there is an obvious pattern between the privileged constitutional and legal status of the head of state (president) and politically opportunistic constitutional reforms. The first one is not possible without the second, and periodically requires adjustment due to such constitutional reforms, increasing their quantity. The author also notes that in the future, examples of politically opportunistic reforms in the CIS countries will inevitably appear.

    Keywords: constitutional reform, constitutional reform in Russia, the Commonwealth of Independent States, CIS countries, political conjuncture, constitution

     

    Mochalov A. N.

    A Soviet Anomaly or the European Pattern? Some Considerations on the Nature of Ethnic (Multi-National) Federalism

    The author argues the view on ethnic (or multi-national) federalism as on the logical aftermath of the European system of the world order having state-nations as its basic elements. The explanation of ethnic federalism (including modern Russian federalism) as a «Soviet heritage» and a legal anomaly coming from the Soviet theory of ethnicity and Stalin’s approach to resolving of a «national question» is criticized. Having analyzed the nature of collective legal status of ethnic groups and «internal» (or stateless) nations the author comes to a conclusion that the reasons for recognition such a status should be searched not in the Soviet theory of ethnicity but in the European approach to the national statehood and nation-states.

    In the article, the author also considers the correlation between ethnicity and territory. Even if such a correlation is conditional, as many modern social scientists think, it cannot be ignored in constitutional territorial design of modern states containing internal nations. Using the methodological approach of the constructivist paradigm of understanding ethnicity and nationalism, the author at the same time challenges the Russian constructivists’ approach to ethnic federalism as an «essentialized» ethnicity.

    Keywords: ethnic federalism, multi-national federalism, national statehood, nation-state, ethnicity, nationalism, territorial autonomy

     

    CIVIL LAW

    Tikhonov A. N.

    Cases of Seizure of a Land for State or Municipal Needs

    On the basis of analysis of regulations and law enforcement practice, the author attempts to reveal the content of the concept of «state or municipal needs» and to determine in which cases it is possible to withdraw land for state or municipal needs.

    The article deals with such a basis for the seizure of land and objects of real estate located on it for municipal needs as «complex development of the territory». It is concluded that it does not comply with the principles of seizure, because the latter can be carried out only on the basis of the agreement concluded with the owner. It is noted that there are no rules protecting the rights of use if they are significantly violated as a result of the implementation of a generally useful case, in particular, when placing linear objects, which makes the use of the neighboring land plot significantly limited. It seems reasonable to use the mechanism of seizure of land for state or municipal needs in the abovementioned cases.

    As a result of the study, it was possible to determine the general conditions under which it is possible to withdraw land for state and municipal needs. So the land plot can be withdrawn from the owner for the state or municipal needs only in exceptional cases and on condition of preliminary and equivalent compensation of its cost.

    Keywords: land property, seizure of a land for state or municipal needs, state and municipal needs, list of state and municipal needs, complex development of the territory

     

    Zakharov D. E.

    Guilt as a Condition of Prosecution for Breach of Contract under German Civil Law

    The Civil Code of Germany is one of the oldest legal acts of our time, a prototype and a source of civil law for many national legal systems of the Romano-Germanic legal family. Currently, the integration of civil law in the countries of the Romano-Germanic legal system causes a significant impact of German civil law on the development of private law in the countries of continental law. In the paper, an attempt is made to understand the theoretical and practical aspects of guilt as a condition of liability for breach of an obligation under German law.

    The author points out that civil liability for breach of contract in Germany is based on the principle of the guilt of the offender and on the so-called principle of liability for the guarantee. The use of the latter leads to a toughening of responsibility, since the person involved in it is responsible regardless of his guilt. If there are no signs of guilt in the actions of a person, he cannot be held accountable, and then the debtor is liable if there is intent or negligence. Negligent are the actions of a person who does not show the diligence and discretion required of him by the law.

    It is noted that German civil law provides for the possibility of fulfillment of an obligation not by the debtor himself, but by other persons. At the same time, the debtor’s liability for the guilt of his legal representative and the persons whom he engages in the performance of the obligation occurs in the same amount as for his own guilt. The author also underlines, that in Germany, in assessing guilt, the emphasis is placed on violation of the obligation, and in Russia – on the attitude of a person to his illegal behavior.

    Keywords: liability, breach of obligation, guilt, German law, contract

     

    CIVIL PROCEDURE

    Ergashev E. R., Podzharov D. A.

    Some Problems of Participation of the Prosecutor in Civil Procedure

    The article deals with some problems of the current civil procedural legislation regulating the status of the prosecutor, the prosecutor’s initiation of consideration of civil cases by the courts, and the prosecutor’s conclusion in a civil case. The fundamental nature of the status problem is explained by its close relationship with all the forms and stages of participation of the prosecutor in the civil procedure. According to the authors, the use of reference norms to indicate the position of the prosecutor does not contribute to the formation of a unified approach in understanding its role and place in the system of subjects of civil procedural relations.

    A critical analysis of the main points of view on this issue is given and the right way to solve it is proposed. The problems of the initiative form of participation of the prosecutor in the civil procedure are connected with the imperfection of the Civil Procedure Code, which contains evaluative legislative constructs that give the courts discretionary powers to determine the presence or absence of grounds for the prosecutor to file a claim. In the comparative legal aspect, the requirements to the form, structure and content of the prosecutor’s opinion in Russia and the Republic of Kazakhstan are investigated. In the Russian legislation, there are gaps in the regulation of the prosecutor’s opinion, which creates difficulties in preparing for court hearings and speaking during the consideration of a civil case on the merits.

    Keywords: status of the prosecutor in civil proceedings, state of health, age, other valid reasons, indefinite circle of persons, conclusion of the prosecutor

     

    LEGAL EDUCATION

    Kostogryzov P. I.

    Why do Lawyers Need Legal Anthropology?

    The article deals with some problems of content of higher education programs in law. The aim of the work is to find an adequate response to the new challenges that legal science and practice face. These challenges are related to scientific and technological progress and globalization. They are inherently values-related and it is impossible to give a response to them, remaining in the subject field and methodological framework of «pure» law science. A transdisciplinary synthesis of social sciences and humanities is needed. Nowadays a lawyer must be professionally socialized sufficiently to effectively apply the results of this synthesis in his work. To do this, it is necessary to anthropologize the professional legal component of education, which is possible by introducing the discipline «Legal anthropology» into the curricula of higher legal education. This will allow, without making significant changes in the content of traditional legal courses (which are already very information-rich and extremely «compacted»), to set a general anthropological perspective for the professional legal awareness of future lawyers and to form their anthropological competence at the level corresponding to present-day conditions.

    For the implementation of this proposal, it is suggested to begin teaching the discipline «Legal anthropology» in the master level and senior courses of the five-year specialist program in jurisprudence; to introduce the course «Anthropology of security» in the five-year program of the «Legal support of national security» speciality; to supplement the PhD program in lawwith the course of legal anthropology for those postgraduate students who had not attended it during their master’s or specialist’s studies; to teach graduate students in the field of «State and municipal administration» at least one of the disciplines «Legal anthropology» or «Political anthropology», and the best option would be a combined course of political and legal anthropology; to introduce legal anthropology in the graduate program in the field of «Anthropology and ethnology», where it has not been done yet.

    Keywords: legal education, master’s degree, specialization, legal anthropology

     

    REVIEW

    Bendyurina S. V., Gimgina M. E.

    V Ural Forum of Constitutionalists

    Scientists, practitioners, and representatives of state and municipal authorities discussed current issues of local self-government and municipal control, the state system and implementation of the principles of building a federal state, the electoral process, the participation of society and citizens in the management of state affairs and the constitutionalization of these phenomena. Special attention was paid to the digitalization of constitutional law and the methodology for finding a balance of interests in administration of constitutional justice.

    Keywords: constitutionalism, constitution, realization of human and civil rights and freedoms and its limits, federalism, parliamentarism, democracy, constitutional justice, electoral technologies in the context of digitalization, electoral process, municipal control, problems of legal regulation, law enforcement

     

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