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

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