No. 2 (2021): Russian Law: Education, Practice, Research. 2021. № 2

CONSTITUTIONAL LAW

Tsaliev A. M.

On the Issues of Judicial Power in Russia(From the Point of View of Constitutional and Legislative Novelties)

The author examines the issues of the judicial system of national state-legal formations in Russia. The features of the judicial system and legal proceedings in one of such formations of the North Caucasus – the North Ossetian autonomous region, are indicated. The social significance of the constitutional (charter) courts of the constituent entities of the Russian Federation is revealed, the need for which is recognized both at the scientific and practical levels, since they solve not only institutional problems, but also those associated with the formation of a federal state. The federal legislative norm on the abolition of these judicial authorities and the possibility of creating instead of them constitutional (statutory) councils under the legislative bodies of the constituent entities of the Russian Federation is criticized. The goals and objectives of these councils are not defined, and the status proposed by it violates the well-known legal principle – the prohibition to be a judge in one’s own case.

The erroneousness of the constitutional provision on the inclusion of justices of the peace in the federal judicial system is noted, since this indicates the complete centralization of the judiciary, the deprivation of regional state power by one of its branches that administers justice taking into account local specifics, but in accordance with the Constitution of the Russian Federation and federal legislation. The necessity of preserving the completeness of state power of the constituent entities of the Russian Federation with the aim of sustainable state development is substantiated.

Keywords: federal legal state, subjects of the Russian Federation, national-state formations, regional state power, constitutional (statutory) courts, justices of the peace

 

Fomicheva O. A.

On Determining the Order of the Legislative Process within the Framework of the People’s Veto

The involvement of citizens in the lawmaking process within the framework of the national vote on amendments to the Constitution of Russia in 2020 necessitated the formation of a new approach to the organization of the lawmaking process. The author examines the use of the concept of veto in the Russian legislation and proposes to develop rules for the exercise of the right of veto by people as a way to find a balance between the interests of the state and society. The article presents the views of Russian researchers on this issue. They suggest a selective approach to the choice of people as a legislator; in particular, they do not recommend involving people in solving issues related to the functioning of the government, due to the low level of legal culture in society. It is also necessary to additionally explain the content of the law to citizens, and to involve specialists in the public discussion of the bill.

From the point of view of the author, the rules for holding a referendum should be adjusted taking into account the experience of national vote. At the same time, difficulties in regulating the referendum procedure hinder the participation of people in the adoption of laws.

Keywords: legislative process, citizens, constitutional law, parliament, veto, people, legislator

 

INTERNATIONAL LAW

Okulich A. I.

White Spot» of Russian Legal Reality: Multiple Discrimination

Proclaiming the idea of equality of rights, freedoms and opportunities, the state, among other things, assumes the responsibility to protect the individual from unlawful restrictions of rights, including discrimination. The international community is now actively calling on states to eliminate all forms of discrimination. Foreign scholars are paying interest to comprehensive study of multiple discrimination.

In the Russian legal reality the problem of multiple discrimination remains unnoticed, which is a significant scientific omission. The author of the paper analyzes foreign concepts of multiple discrimination, since it is in countries such as the United States, Canada, and the United Kingdom there is the tendency to recognize the existence of multiple discrimination, especially of black women. In Russia, multiple discrimination of young pregnant women takes place. Our country has not developed anti-discrimination legislation, and there is no effective mechanism for protecting individuals from discrimination in general and multiple discrimination in particular. Neglecting this issue will hinder the successful development of the Russian Federation as a democratic and legal state.

Keywords: discrimination, multiple discrimination, foreign concepts of discrimination on several grounds, human rights, judicial protection of the rights and freedoms

 

BUSINESS LAW

Vedel’ I. A.

International Legal Regulation of the Russian Constituent Entities’ International Activities: Regionalism in the Absence of Universalism

The author attempted to make a generalized analysis of the international legal regulation of the Russian constituent entities’ international activities at different levels of legal regulation: universal, regional and local (bilateral). Issues related to the terminology, forms and content of international and foreign economic relations of the constituent entities of the Russian Federation are only partially touched upon. In the paper, the lack of international regulation of the relations under consideration at the universal level is stated. It is emphasized that international norms on international relations of the constituent entities of the Russian Federation are mainly contained in legal acts adopted by some international regional organizations (for example, the Council of Europe, the European Union, the Commonwealth of Independent States).

Much attention is paid to studying the issue of regulating the international activities of Russian regions in bilateral (intergovernmental) international agreements between Russia and foreign states. The author divides them into four groups in terms of their content and direction of regulation: 1) agreements of a general nature dedicated to the principles of cooperation; 2) agreements on promoting cooperation between territorial entities of states; 3) agreements with neighboring states in order to develop cross-border cooperation; 4) agreements on individual constituent entities of the Russian Federation.

Keywords: international legal regulation, international activities of the constituent entities of the Russian Federation, international and foreign economic relations, constituent entities of the Russian Federation, interregional cooperation, regionalism

 

BUSINESS LAW

Nalbandyan E. L., Sazonova M. A

The CEO’s Accountability for the Losses Suffered by a Company

Corporates disputes so far are the most difficult and laborious disputes heard by the arbitral tribunal. In the paper, regulatory measures and current case law are analyzed. The authors consider uncertainty of the legislation, concerning the authority of a single executive body as the most important problem. According to the legislation the CEO gets almost unlimited authority, this often leads to the losses of the company or to the bankruptcy. At the same time, the analysis of the court practice revealed that the losses are not always connected with CEO’s unjust acts.

Comparative analysis of Russian and foreign law showed that CEO’s fiduciary responsibility model in Russia is partially borrowed from US. American model, unlike Russian, is fully determined by the legislation where the official conduct boundaries of a single executive body are clearly defined. One of the key problems, which plaintiffs face while proving the CEO’s inequitable conduct, is hidden affiliation. Along with the foregoing, one can generally notice the positive dynamic in the case law development on the issue under study.

The authors conclude that the procuring evidence concerning recovery of losses from the CEO comes to laying the burden of proof CEO’s unjust actions on the plaintiff, while the CEO must disapprove this.

Keywords: director liability, fiduciary responsibility, single executive body, integrity and reasonableness of the director’s actions, prejudice, affiliated persons

 

THEORY OF LAW

Gavrin D. A.

Private and Public Law: Disturbing the Gravity of a Legal Matter

This article is devoted to the issue of distinguishing between private and public law, which are often considered as independent systems of legal regulation. The main scientific concepts of the distinction between public and private law are presented. The relationship between private and public law is consistently considered from the standpoint of logical and theoretical validity, and branch of law significance. The vulnerability of the dichotomous division into private and public law is pointed out, as the problem with the structure of the divisible concept is revealed. Private and public law cannot be considered two contradictory concepts, so the dichotomous division as a logical operation is excluded.

There are two main approaches in the Russian legal science, the essence of which is reduced to the number of criteria necessary to distinguish private and public law (for example, interest, method of regulation, method of protection, etc.). The most controversial is the category of interest, which forms the basis of the material criterion and has a subjective and objective assessment. The clash of private and public interests manifests itself not only in the structure of the rule of law, but also in the branch of law as a whole.

The influence of private law and public law on the structure of law is considered, as well as the branch manifestations of private-legal and public-legal principles.

Keywords: private law, public law, system of law, method of legal regulation

 

NOTARY

Mikhailova E. V.

Protection of Civil Rights in the Notarial Sphere

The article deals with the theoretical foundations of the concept of subjective civil law, its types, features and properties. The implementation of any civil right can lead to a conflict, and the procedure for resolving this conflict is determined both by the nature of the right being implemented, and the nature of legal relations, as well as the legal status of the disputing persons. Legal conflicts in the notarial sphere have specificity, but they are subject to general laws: they can be of a private or public legal nature, and their participants can be either in a state of mutual equality, or in a public-legal, «vertical» relationship. In a state based on a rule of law is essentially important to provide methods for the protection of human subjects of any activities, so in the notary area is necessary to define methods and forms of protection of rights of citizens and organizations addressed to the notary, and the rights of the notaries themselves.

The paper examines the issues of the legal status of public and private notaries. The nature of notarial activity is also analyzed. In science, the point of view that notaries implement public legal functions has taken root. The author criticizes this view and expresses an opinion that only state notaries and settlement officials authorized to perform notarial acts should act on behalf of the Russian Federation. It is shown that conflicts in the sphere of notarial activity can have both private and public legal nature, and the criterion of their differentiation is defined. Private law conflicts arise between private practicing notaries and citizens and organizations. They are subject to settlement by way of a claim and may be referred to arbitration courts by an agreement of the parties. Public-legal conflicts develop between state notaries, officials engaged in notarial activities, and citizens and organizations. These cases must be dealt with in accordance with the rules of administrative procedure.

Keywords: notary, public authority, transactions, protection of rights, private law relations, public law relations, claim proceedings, special proceedings, administrative proceedings

 

FORENSIC SCIENCE

Kokurin G. A.

Some Aspects of Solving Sexual Crimes

The theoretical and practical aspects of disclosing crimes against sexual inviolability and sexual freedom of the individual are investigated on the basis of other circumstances of the crime event. These circumstances may reflect the motivation and personality traits of the offender. Other circumstances can be caused by accidental or deliberate actions of various subjects: victims, a person who has committed a sexual offense or his accomplices, other persons. Depending on the time of their occurrence, other circumstances may be pre-criminal, that is, they create conditions for the commission of sexual crimes; may arise during the commission of a crime; may be post-criminal, that is, creating conditions for concealing a crime. The author analyzes criminal cases, giving examples of the occurrence of other circumstances (in particular, those caused by the deliberate actions of the subjects).

The article also draws attention to the importance of studying the object of sexual crimes, since the lifestyle, environment, connections, interests, habits, personal qualities of the victim can be important for determining the behavioral characteristics of a person who commits or has committed a crime.

Keywords: concept of other, other circumstances of the case, classification of other circumstances, disclosure of sexual crimes, casualty, premeditation, object of encroachment, behavioral signs of rapists-maniacs

 

LEGAL EDUCATION

Sidorov S. G., Barakovskyh S. A., Yulchurin S. A., Kabril’o A. S.

Implementation of International Business Technologies in Modern Legal Education (Compliance System)

In the paper, proposals are made to improve the educational system of educational organizations and to form the foundations of the corporate culture. The problem of improving the quality of higher education is reinforced by deontological requirements, corporate and ethical norms in future professional activities. The successful implementation of technologies used in international entrepreneurship (compliance system and internal audit) is analyzed.

The methodology for preventing deviations and violations of the law, adherence to corporate standards and internal codes of conduct in the organization is discussed. There are two types of obligations that the organization must fulfill: mandatory rules, i. e. law, and voluntary obligations in the form of compliance with an industry code or internal rules that have been formed in the corporate environment (e. g., one’s own code of professional ethics). The methods of the educational organization compliance system, which include administrative and legal means of influence in the form of persuasion, coercion and encouragement of the students, are discussed. The methodology of compliance system of the educational organization can be based on four levels of implementation: enlightening the applicants with the values of the educational organization; the formation of the skill of proper behavior and compliance; monitoring students’ compliance with the requirements of appropriate behavior; providing feedback and possible correction of the compliance system. The main components of this system (policies and protocols) are also highlighted.

Keywords: compliance system, educational organization, education, proper and lawful behavior of students, policies and protocols of the compliance system of the educational organization

 

REVIEWS

Kolobaeva N. E.

Quality of Legal Education in the Conditions of Distance Interaction of Participants of the Educational Process: Overview of the Conference

The article provides an overview of the scientifi c and methodological conference held on

December 24, 2020 in the Ural State Law University. The aims of the conference were to analyze the practice of introducing distance technologies and e-learning in law universities and faculties, to share experiences, and to develop modern methods in legal education.

Keywords: conference, quality of education, distance technologies, e-learning, interaction of participants in the educational process, legal education