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Russian Law: Education, Practice, Research. 2021. № 6
No. 6 (2021)LABOR LAW AND SOCIAL SECURITY LAW
Fedorova M. Yu.
Constitutionalization of the Legal Regulation of Social Protection in the Russian Federation
The transition to a market economy, the variety of forms of ownership and forms of realization
of the right to work have made it impossible to protect against social risks through traditional types
of social security. There was a need to form a new theoretical model of protection against social risks, which would cover a wider range of measures compared to social security. In modern Russia, this model is formed through the development of the social protection system, as well as social legislation and the practice of its application.The main trend of such development is constitutionalization. The author suggests considering the structure of the constitutionalization of the legal regulation of social protection through its objects, subjects and content. The objects of constitutionalization are social protection as a constitutional value, social legislation and law enforcement practice. The constitutional legislator and the Constitutional Court of the Russian Federation can be considered as the subjects. During its existence, the constitutional (statutory) courts of the subjects of the Russian Federation also performed the function of constitutionalization.
On the example of the constitutional novels of 2020, as well as the decisions of the Constitutional Court of the Russian Federation on social protection issues, the essence of the constitutionalization of the legal regulation of social protection is revealed. Promising directions of scientific research on the analyzed problems are indicated.
Keywords: constitution, constitutionalization, social state, social protection, social security, social risk, Constitutional Court of the Russian Federation, constitutional compliance assessment, legislation, court practice
Mamatkazin I. R.
Issues of Structural and Functional Analysis in the Social Security Law
The traditional understanding of the functions of law, formulated in the science of social security law, develops a slightly different meaning when considering the problems of structural and functional analysis. According to the function theory, a function of law implies an impact of law, and attention is focused on the active role of law in relation to the systems of the surrounding world. In turn, the structural and functional analysis is aimed at the study of the legal system that formed the function. The certain elements of the social security system, the structure, system connections determine the formation of the legal function.
The research is based, in particular, on the assertion that a function is a property expressing the essence of a legal phenomenon, even if it is an element of a higher-order system. In addition, the function cannot be separated from the phenomenon and cannot be changed without changing the legal phenomenon that formed the function. This justifies the need to conduct a structural and functional analysis of legal systems, including social security law. Applying the method of structural and functional analysis, the author investigates the dependence of the dynamics of a function on the structure of the legal system. The paper raises the issue of the nature of intrasystem connections, and provides arguments in favor of the fact that such connections between elements are a manifestation of the properties of these elements, their functions.
Keywords: functions of social security law, structural and functional analysis, legal phenomenon, essence of social security, system connections in social security law, procedural legal relations, structure of an insurance pension
Smirnova T. O.
Formation of an Initiative in Labor Law: the Ratio of Will and Expression of Will
The author examines the needs of the parties of labor relations during their interaction, and emphasizes, that it is necessary to analyze the will and the declaration of will. The characteristic of will is reviewed from philosophical, legal-theoretical and civilistic points of view. The category of initiative is used to take into account the will and expression of the will in labor law.
It is proposed to consider that initiative is formed, firstly, on the basis of the true will of the subject of the labor relationship and, secondly, through the expression of will. The paper pays attention to theoretical and practical problems of the correlation of will and expression of will, considers the cases of vice of will and ways to overcome them in labor law. There author also analyzes the list of subjects having the ability to check the conformity of the will to the expression of will. Today, the court carries out this post facto verification, however, the control and supervisory authorities as well should use their powers to verify the compliance of will to the expression of will. This helps reducing the high load of courts while considering complaints from employees and carrying out inspections of compliance with labor law requirements.
In conclusion, attention is drawn to the influence of the problem of inconsistency of will and expression of will on the quality of working life, on the employee’s satisfaction with his employment. The need to take into account the employee’s opinion for effective human resource management is pointed out.
Keywords: initiative, will, expression of will, legal fact, quality of working life
LEGAL BASIS FOR GENOMIC RESEARCH
Krylatova I. Yu.
The Interdisciplinary Approach to Balancing Private and Public Interests in Using Genomic and Genetic Information
Contemporary society has become an active user of biomedical technologies, and genomic and genetic information. This information is a source of improvement for personalized medicine and further development of medical science initiatives. On the one hand, appropriate implementation of genetic and genomic information rises the quality of life and medical help which is reflected in the concept of private or best patient interests. On the other hand, misuse of such data might lead to genetic discrimination based on personal information. With this respect human dignity should be a core priority in moral and legal regulation of personalized medicine and biobanking.
This paper reviews practice of adhering to the principle of balance of private and public interests in using genomic and genetic information, as well as promises and perils of such using. Starting with the international regulation (including soft law regulation) of using, extraction, processing and saving genomic and genetic information the author indicates the leading role of bioethical principles in legal regulation of this sphere. The author overviews the advantages and disadvantages in changing priorities from private rights to publics needs and the opposite. Legal norms, judicial and medical practice show, that there is a positive tendency in the development of the interdisciplinary mechanisms in using genetic and genomic information based on adequate protection of human rights and personal dignity.
Keywords: genome, genetic information, biobanking, bioethics, balance of private and public interests, human dignity
CONSTITUTIONAL LAW
Kravtsova E. A.
Interaction of Legislative (Representative) Bodies of Subjects of the Russian Federation with the Population
The main purpose of the legislative (representative) bodies of the subjects of the Russian Federation is to express the will of the people by adopting normative acts regulating social relations. Therefore, these bodies should work closely with the population. The paper deals with the direct ways of people’s interaction with the legislative bodies of the subjects of the Russian Federation, such as applying to the legislative body (including electronically), holding public hearings, introducing legislative initiatives, as well as the indirect ways of interaction through local self-government bodies and public chambers. The degree of popularity of each way among the population is analyzed, as well as the problems that arise during its implementation.
The paper uses the statistical method, methods of comparative analysis and synthesis. The author makes a general conclusion that today citizens do not show much desire to cooperate both with the legislative bodies of the constituent entities of the Russian Federation, and with public authorities in general.
Keywords: constitutional law, civil society, legislative bodies of the constituent entities of the Russian Federation, interaction, population of the constituent entity of the Russian Federation
URBAN PLANNING LAW
Kharinov I. N.
Problems of Protecting the Right to a Comfortable Urban Environment
The agenda includes questions about how to make cities more comfortable for residents and improve the quality index of the urban environment, what legal mechanisms should be used to provide comfortable urban environment, etc. This paper examines some indicators for calculating the urban environment quality index in the context of modern legislation, law enforcement and judicial and arbitration practice. The research is based on general scientific methods (analysis, generalization, synthesis, comparison, descriptive, formal-logical method) and a special-legal method.
The author concludes, that the right to a comfortable urban environment includes the subjective public right (which should be protected), to demand that public authorities not only maintain in good condition, but also, in fact, create the object of public importance (public property) specified in territorial planning documents. To strengthen the protection of individuals in the corresponding public law disputes, it is proposed to apply the institution of judicial forfeit in relation to public administration bodies.
Keywords: comfortable urban environment, indicators, green areas, common areas, infrastructure, public property, public services, territorial planning documents, subjective public rights, judicial protection of citizens’ rights, astreinte
Verbitskaya Yu. O.
Provision of Temporary Retail Facilities as a Guarantee of a Variety of Services in Green Areas
The paper discusses the issue of temporary retail facilities placement in city parks as an obstacle to the development of a comfortable urban environment. The problem of disposing of a land plot granted on the basis of the right of permanent (unlimited) use is raised. Civil law does not allow the disposal of such plots, that is, it does not allow their owners – legal entities administering parks – to transfer part of the land plot for the placement of temporary retail facilities (hereinafter – TRF). At the same time, the owners of TRFs cannot directly contact the city administration for inclusion in the TRF placement scheme and conclude an agreement directly with the owner, since such plots already have a legal owner. All this forces the participants of such relations to look for solutions, which do not always receive support in court.
The author examines examples from judicial practice using various methods of solving this problem: concluding a lease agreement directly with a municipal institution, concluding agreements for the provision of services for a fee, an agency agreement, a leasing agreement, an agreement on joint activities and storage. The author also considers the possibility of applying a separate, unnamed agreement – an agreement for the placement of a temporary retail facility – and compares it with an agreement on the provision of a trading place on the market. It is concluded that all the methods used to bypass the paragraph 3 of Article 269 of the Civil Code of the Russian Federation are only temporary measures, and a change in this norm is required. Specific proposals for such changes are given.
Keywords: comfortable urban environment, temporary retail facilities, the right of permanent (unlimited) use
ENVIRONMENTAL LAW
Karpukhin M. Yu., Khomyakova M. A.
Criminal Liability for Damage to Land in an Environmental Disaster Zone or in an Environmental Emergency Zone
One of the constitutional values, protected by the criminal legislation of the Russian Federation, is the right to a favorable environment. Criminal punishment for damage to land in an environmental disaster zone or in an environmental emergency zone helps to restore justice and create general and private prevention, thereby protecting the lands of these territories from damage in the future.
The authors analyzed the composition of the crime provided for in Part 2 of Article 254 of the Criminal Code of the Russian Federation («Damage to Land in an Environmental Disaster Zone or in an Environmental Emergency Zone»). Due to the imperfection of criminal legislation, difficulties arise in definition of crimes according to this article and in imposing punishment in the form of real imprisonment. To solve these problems, the authors propose to introduce variable sanctions in the form of imprisonment for up to two years (currently the law provides for imprisonment for only two years); to give legal definitions to the concepts of «land», «environmental disaster zone», «environmental emergency zone»; to introduce criminal liability for persons with special knowledge who deliberately spoil the land.
Keywords: environmental crimes, environmental disaster zone, environmental emergency zone, land damage, ecology
Kurguzikov M. S., Petri V. A.
On the Environmental Rights of Future Generations
This article examines the term «future generation» in the context of Russian legislation, and the legal acts in which it is mentioned. The issue of maintaining a favorable environment for future generations is considered, as well as the issue of the emergence of legal capacity of an unborn person. The authors assess the potential of Russian legislation in the development of the institution
of environmental rights for future generations. The paper examines various points of view regarding the need for consolidation of this institution, questions whether it is appropriate to apply the concept of sustainable development in relation to the rights of future generations.In addition, the authors critically review the proposals of scholars on the prevention of violations of the rights of future generations. These proposals include amending the Constitution of the Russian Federation; introduction of the concept of limited consumption; imposing significant financial sanctions; establishing personal criminal / administrative liability for the heads of enterprises who have allowed environmental pollution. The authors attempted to describe a possible mechanism for protecting the environmental rights of future generations.
Keywords: constitution, ecology, constitutional law, environmental law, environmental rights of future generations, sustainable development, human rights, favorable environment
Listopad O. F.
Providing a Comfortable Living Environment for the Indigenous Small-Numbered Peoples of the North, Siberia and the Far East in the Ancestral Territories
The cultural contradictions between the urbanized population of the country and aboriginal communities are the basis of differences in the comfort of their living, because the indigenous peoples of the North, Siberia and the Far East live according to the rules of nature, and a civilized society opposes itself to nature. The aboriginal people acquired the skills of living in conditions extremely difficult for humans and, thanks to the continuity of generations, retained their own cultural characteristics, including preserving a nomadic way of life. The advance of industrial civilization could threaten the traditional comfortable living environment of these people.
The author considers the improvement of legislative acts in the field of ensuring and preserving the traditional comfortable living environment to be the urgent task, especially during industrial development of the northern territories. To solve this issue, the author proposes applying the principle of environmental law – the presumption of the danger of any planned economic activity – and developing rules for conducting an ethnological expertise and legislatively establish the possibility of its conduct.
Keywords: comfortable living environment, indigenous small-numbered peoples of the North, Siberia and the Far East, traditional way of life, ethnological expertise, industrial expansion, ethnocultural diversity
HISTORY OF STATE AND LAW
Taraborin R. S.
Moscow Legal Heritage in the Civil Law of the Russian Empire in the First Half of the 19th Century
The autochthonous origin of the legal norms of the Code of Civil Laws of 1832 was confirmed by references to the sources of these norms. The Cathedral Code of 1649 was the earliest source. The author studies the continuity of civil law norms using the example of these two legislative documents. The research method is a comparative legal analysis of the content and vocabulary of legal norms of the Code of Civil Laws and the Cathedral Code: all the articles where the Cathedral Code was the only source, and selectively – the articles where additional sources were used.
The study presents a consistent, according to the institutions of domestic relations law, property law, succession law and law of obligation, comparison of the content and legal vocabulary in these documents. This made it possible to establish the identity or similarity of legal norms; the ways of using the main and additional sources; the editing techniques that brought up to date the norms extracted from the sources. The author concludes, that 1) civil norms of legislative documents, separated by almost two centuries, in most cases revealed a high level of legal continuity; 2) the editing of the source included the typification of the original casual norm, and the elimination of archaisms in legal vocabulary.
Keywords: civil legislation, Cathedral Code, Code of Civil Laws, legal norm, source, continuity
SOCIOLOGY OF LAW
Tomyuk O. N., Diachkova A. V., Kerimov A. A.
Media transformation of the Legal Culture of an Individual in the Context of Global Digitalization
The media transformation of legal culture in the context of global digitalization requires the adaptation of all legal concepts and legal phenomena to new formats of the media sphere and digital reality (Twitter, Instagram, YouTube, VKontakte, TikTok, podcast managers). The aim of the article is to study the media transformation of the legal culture of an individual in the context of global digitalization through the prism of new IT technologies and media innovations that contribute to the development of law in modern digital reality, pointing out important changes and transformations. Legal media content in the blogosphere and podcasting has educational potential. It was revealed that Internet users show their need for legal information, effective ways to resolve situations of a legal nature, offered by bloggers or podcasters.
As a result of the study, the authors substantiated the fact that there is a transformation of legal culture into legal media culture, legal education into legal media education, legal space into legal media space, thanks to the demand and popularization of legal content by Internet users.
Keywords: media sphere, legal culture, media transformation, global digitalization, legal media culture, legal media education, legal media space
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Russian Law: Education, Practice, Research. 2021. № 5
No. 5 (2021)CONSTITUTIONAL LAW
Bylinkina E. V.
The Concept and Types of Electronic Voting in Russia and Abroad: A Comparative Legal Analysis
Technical improvement of the electoral process is one of the main directions of modernization of electoral systems. The use of the technology of scanning ballots, electronic voting systems with direct recording, remote electronic voting, blockchain, biometrics and other technologies gives rise to a large number of new concepts and terms, legal norms, sometimes scattered and contradicting each other and, as a result, giving rise to problems in understanding and law enforcement. practice. In this regard, it seems necessary to develop a unified approach to understanding the terms that are used in national regulatory legal acts and international standards on the electoral process.
The article provides a comparative legal analysis of the definitions of electronic voting and remote electronic voting in accordance with international standards of the European Union and Russian legislation, identifies differences, formulates proposals for amendments to the current Russian legislation. The author's formulations of the definitions of electronic voting and remote electronic voting are proposed.
Key words: digitalization of the electoral process, software and hardware, the concept of electronic voting, types of electronic voting, the concept of remote electronic voting
Sadovoi M. V.
On the Variant of Understanding the Category of Independence of the Constitutional Court of Russian Federation
Revealing the constitutionally established principle of the independence of the judiciary, Federal Constitutional Law of July 21, 1994 «On the Constitutional Court of the Russian Federation» № 1-FKZ establishes that in order to protect the foundations of the constitutional system, the fundamental rights and freedoms of man and citizen, to ensure the supremacy and direct effect of the Constitution of the Russian Federation, the Constitutional Court of the Russian Federation exercises judicial power autonomously and independently. In this article the author considers variants of understanding the category of independence as a principle of the activity of the Constitutional Court of the Russian Federation.
The author identifies the main political and legal ideas on which the concept of establishing an independent constitutional control body is based. The following describes the basics of legal regulation of the principle of independence of the Constitutional Court of the Russian Federation in domestic legislation and international law. The article describes the variety of approaches in the legal literature to terminology in the framework of studying both the principle of independence of the judiciary and the principle of independence of the Constitutional Court of the Russian Federation. In conclusion, the author offers a generalizing version of the definition of the category of independence as a principle of the Constitutional Court of the Russian Federation. So the author also describes such terms as independence, autonomy and impartiality.
Keywords: The Constitutional Court of the Russian Federation, the principle of independence, independence, autonomy, impartiality
CIVIL AND BUSINESS LAW
Murzin D. V.
"Other Property" in Civil Law: Objects of Absolute and Relative Rights
The article deals with the issues of qualification of varieties of "other property" as objects of subjective civil rights (Article 128 of the Civil Code of the Russian Federation). The meaning of identifying and fixing new objects in the legislation is to link them to specific subjective civil rights. At the same time, the division of objects into things and other property made in Article 128 of the Civil Code of the Russian Federation only determines the question of attributing things to objects of real rights, but does not answer the question of what objects of rights – absolute or relative – "other property" refers to. The article proves that cash and documentary securities (things) are objects of real rights, but non-cash money belongs to the objects of binding rights, and non-documentary securities-to the objects of absolute rights. Corporate rights that are separated in the form of participation interests (including shares and shares in the authorized capital of limited liability companies) are not subjective rights, but the object of absolute rights. Digital rights, on the contrary, are subjective civil rights to property, and depending on the type of this property, digital rights are divided into absolute or relative. The qualification of "other property" as objects of absolute rights serves as a prerequisite for the application of the vindication model to protect the violated rights of persons who own "other property".
Keywords: objects of civil rights, absolute law, things, other property, intangible property, money, securities, corporate rights, digital rights
Gavrin D. A.
Features of making transactions using the financial platform
This article is devoted to the issues of making financial transactions using the financial platform. The subject composition of financial transactions and the procedure for their execution are considered. In particular, we are talking about the operator of the financial platform, the consumer of financial services, financial organizations, consumers of financial services, issuers, and the registrar of a financial transaction. A distinction is made between the financial platform and the operator of the financial platform, their functional features and status.
Features of the categorical apparatus "financial platform", "information system", "information aggregator", "financial service", "financial transaction", "consumer" and others. There are difficulties with the terminological unity in the normative legal acts, which are characterized by fragmentary regulation of issues of the digital world. The ratio of the categories "financial platform" and "information system", as well as "financial service" and "financial transaction"is established.
The entities involved in making financial transactions using the financial platform are divided into two groups: the entities that ensure the functioning of the financial platform (the operator of the financial platform, the registrar of financial transactions-the repository), and the entities directly involved in the transaction (the consumer of financial services, financial organizations, issuers).
Attention is drawn to the complex legal and factual composition of transactions, since in addition to making a financial transaction, participants must also be allowed to use the services of the financial platform. The conclusion of a financial transaction using the financial platform is preceded by the conclusion of a contract for the provision of services to the operator of the financial platform.
The specifics of the fulfillment of obligations under a financial transaction made using the financial platform are related to the possibility of using special accounts of the operator of the financial platform, which are opened exclusively in financial organizations.
Key words: financial transaction, financial platform, financial organizations, credit organizations, banks
CIVIL AND ARBITRATION PROCEDURE
Mikhailova E. V.
Human and Civil Rights and Freedoms as Objects of Judicial Protection
The article analyzes the concept of human rights, its properties, nature and types. From a philosophical and legal points of view, the concept of legal freedom is investigated, the problem of correlation between the concepts of "law" and "freedom" is solved. It is proved that law is not a material good itself, but a model of behavior established by law. Freedom is a broader concept than law and is an innate property of a person to act at his own discretion. Law as a product of state activity is a mechanism for the state to fulfill its tasks and restrict freedoms. By virtue of this, the adoption by the state of any law must be accompanied by an indication of the common good for all, which will be achievable subject to the adoption of this law. Protection of violated freedoms is the consideration and resolution of disputes by courts over the operation of a particular law. The fact that there are sufficient grounds for the adoption of a normative legal act, the legality of the actions of the body or official that adopted the contested act is subject to proof in court. A citizen demanding that a normative legal act be declared invalid must prove that this act violates his rights or unreasonably restricts his freedoms. Considering that legal conflicts in the public law sphere are considered by state courts, which are public authorities, it would also be advisable to introduce the institution of administrative assessors into procedural legislation to ensure the true independence of the judge considering the case (by analogy with jurors and arbitration assessors). Public figures, well-known legal scholars on an elective basis should be involved in administrative proceedings as administrative assessors.
Key words: human rights, private and public law, freedom, state, natural law, compulsion, protection of rights and freedoms.
Novikov N. A.
Judicial Conciliation in Arbitration Proceedings: Theory and Practice
The article deals with the issue of judicial and extrajudicial conciliation when considering cases in the order of commercial proceedings. Based on the analysis of the theoretical concepts of leading legal scholars, as well as judicial practice, the concept of a settlement agreement in commercial proceedings is formulated, its distinctive features are revealed in comparison with out-of-court agreements on reconciliation. It is shown that the settlement agreement has a public law nature and is a procedural act. Accordingly, the most important feature that is absent in out-of-court settlement transactions - enforceability is inherent in an amicable agreement. The legislator operates with the terms “settlement agreement” and “conciliation procedures”. However, they correlate as a mechanism and a result: the result of conciliation procedures can be an amicable agreement. The list of conciliation procedures in the commercial procedural legislation is open, however, one should distinguish between judicial and extrajudicial conciliation procedures. The judicial conciliation procedure should be carried out within the framework of a special procedural form and in compliance with the fundamental principles of reconciliation, the main of which are the principles of voluntariness, equality and cooperation. Special emphasis is made on the fact that the arbitral tribunal does not have the right to compel the parties to conduct a conciliation procedure, threaten to make an unfavorable decision or express judgments about the case or the evidence presented by the parties. On the other hand, the arbitral tribunal must adequately respond to situations where the parties, when they file a motion to postpone the proceedings in connection with the intention to conduct a conciliation procedure, do not really have such an intention and are pursuing the goal of delaying the consideration of the case. In this case, the commercial court should not satisfy the request. It was also emphasized that any information and documents provided by the parties during the conciliation procedure, without their written consent, cannot be admitted to the case and accepted by the arbitration court as evidence.
Key words: commercial proceedings, reconciliation of the parties, amicable agreement, judicial conciliation procedures, extrajudicial and judicial conciliation.
CRIMINAL LAW AND CRIMINOLOGY
Doroshenko V. S.
Criminal Liability for Crimes in the Sphere of Illegal Turnover of Oil and Its Products: Retrospective Aspect
Damage to main pipelines, oil pipelines and oil product pipelines for the purpose of theft from them transported hydrocarbon remain an actual criminal problem in Russia. Her exists, opinion to the author, because of the disadvantages of the acting criminal law.
This scientific article presents a common retrospective analysis of all changes in the criminal law, aimed at strengthening the criminal legal counteraction to oil theft from special pipelines.
Based on the primary legislative material and indicators of the criminological state of crime in the studied area, the opinions of scientists, the author draws conclusions about the reasons and disadvantages of the changes to the Criminal Law, their theoretical and practical consequences. Them, in particular, are proposed exclude the concept of pipeline from the criminal legal definition of storage, remove from Article 215.3 of the Criminal Code of the Russian Federation indication of criminal motives, eliminate logical contradictions, admitted to the construction of this crime.
Keywords: storage, pipeline, theft from an oil pipeline, damage to an oil pipeline, an oil product pipeline
Poraiko V. V.
On the Question of the Role of the Principles of Criminal Law in the Regulation of Liability for Crimes in the Field of Entrepreneurial Activity
The key reason for the shortcomings and gaps in approaches to the regulation of liability for acts encroaching on the sphere of entrepreneurship is the insufficient consideration by the legislator of the principles of Russian criminal law.
The neglect of the principles of criminal law in the design of the norms of the criminal law leads to numerous negative consequences. Among them: unjust decisions made in cases of crimes in the field of entrepreneurial activity; complication of the work of the law enforcement officer; additional barriers that business participants have to face, and all associated adverse economic consequences; decline in the authority of the state as a regulator of public relations.
The principles of criminal law should apply to all persons who have committed socially dangerous (not necessarily criminal) acts, since the tasks of the Criminal Code of the Russian Federation include the legal protection of public relations not only from criminal, but in general from socially dangerous encroachments. Taking into account the considerations expressed in this article, the author sees it necessary in the articles of the criminal law devoted to the principle of equality of citizens before the law, the principle of justice and the principle of humanism, to replace the term «crime» with the term «socially dangerous act».
Keywords: principles of criminal law, crimes in the field of entrepreneurial activity, criminal liability, crime, socially dangerous act
CRIMINAL PROCEDURE
Khlus A. M.
Inspection or Search at the Place of Detention of the Recipient? Process and Tactical Aspects of Production
By checking the citizens' applications for bribery or guided by operational data, the bodies carrying out operational-search activities organize the arrest of the bribe taker red-handed. At the stage of the arrest of the bribe-taker, they do not exercise the right granted to them to initiate a criminal case and conduct urgent investigative actions, which further actualizes the problems of the preliminary investigation. Having completed the mission to arrest the bribe-taker red-handed, the officers of the operational units delegate to the investigator the right to make a decision to initiate a criminal case, providing him with the materials of their activities. In this case, the investigator is deprived of the opportunity to carry out a number of procedural actions, the need for which arises at the stage of the arrest of the bribe-taker red-handed.
After analyzing this situation, comparing the procedural powers of the criminal prosecution authorities, the author came to the conclusion that it is advisable to involve the investigator in the preparation of the arrest of the bribe taker red-handed. After the initiation of a criminal case immediately after the arrest of the bribe-taker red-handed, the investigator faces the problem of choosing an investigative action, the conduct of which is most rational in the conditions of the place of detention: an inspection of the scene or a search at the place of detention. Having considered some of the tactical features of the inspection and search at the place of detention, having analyzed the available publications and practical activities, the author pointed out the disadvantages and advantages of these investigative actions. It was concluded that the place of detention of the bribe-taker in all cases should be subject to inspection. This will ensure the implementation of the principle of procedural economy, as it covers a number of other investigative examinations.
Keywords: receiving a bribe; red-handed detention; investigator; the place of the incident; inspection; search
LAW EDUCATION
Nesmeyanova S. E., Kalinina E. G., Gracheva M. V.
Additional Professional Education: Transition to Innovative Mode
The article examines the question that it is necessary to apply innovative educational technologies in the implementation of additional professional education programs. The authors analyzed various points of view of specialists in the field of pedagogy about the types and levels of innovations in the field of education, as well as the main directions of innovation activity. Educational organizations are the main subjects implementing innovative technologies. In the Russian Federation, the implementation of innovative projects/innovative programs is supported by assigning the status of innovation platforms to relevant organizations. In 2021, the status of the federal innovation platform was assigned to the Ural State Law University. The project "Information and analytical portal as a competence resource in the system of additional professional education", which is implemented by the University, is aimed at providing teachers of additional professional education with normative and methodological acts that ensure the educational process. In addition, the Portal contains analytical information about the implementation of additional educational programs in various universities in order to apply effective innovative technologies in the educational process, in their own pedagogical activities. The information and analytical portal should facilitate the teacher's transition to an innovative mode and going beyond the teaching of a specific subject, creating pedagogical innovations that improve the pedagogical process and increase its effectiveness.
Keywords: innovations, education, additional professional education, innovative educational platform
Melnik V. D., Skyratovskiy M. L
Economic Justice as Education Specialty Field in Law Schools
The article is devoted to the issues of teaching “Economic Justice” educational program as a sort of higher education specialization. The article contains a retrospective point of view to the problems of higher legal education, the content, structure and specialization of which has been discussed since the 19th century.
Being the authors, both the lecturer and graduate have essentially the same point of view regarding to the discussing subject that is also time-tested during the teaching and learning, and they analyze pros and cons of the legal education specialization. Besides, the authors handle in detail the forms, means and methods of Economic Justice teaching, and suggest the recommendations for the educational courses teaching improving.
The authors make the conclusions related to the methodology for would-be judicial sphere specialists training. Firstly, there should be the deeper and close to practice specialization without civil procedure general dispositions duplication since that is the basis of non-criminal procedure. Secondly, so called “core” of “Economic Justice” law school program should involve commercial procedure teaching as a part of general civil procedure that regulates resolving commercial disputes with focus on civil circulation participators remedy. Thirdly, teaching “Economic justice” program requires the use of modern educational technologies such as “case method”, moot courts and colloquiums.
The article may be useful for all law schools’ teachers but especially for those teaching civil and commercial procedure, civil and business law, and, perhaps, for students interesting in learning and wishing to become professionals in theirs interests fields.
Keywords: commercial procedure, economic justice, business law educational specialization, educational specialty field, pleadings, moot court
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Russian Law: Education, Practice, Research. 2021. № 4
No. 4 (2021)CIVIL LAW
Bublik V. A., Semyakin M. N.
Ideas of the Formation and Development of Property Law Abroad
Property law is being intensively modernized, as a result a number of trends in its further development have been identified that need deep scientific research. The authors analyze the civil literature, considering the definition of the concept of property rights. Using the methods of comparison and retrospective analysis, the authors conclude that despite the long history of development of the institute of property rights, today many states apply normative legal acts, the prototypes of which were laws regulating property relations in the era of the formation of Roman private law.
Various principles of ownership forms are considered. Much attention is paid to the disclosure of the principles of physical unity of property and the opposite principle of horizontal division of property. Each of these principles was the basis of property law in different historical periods. The authors also formulate the main ideas of the formation and development of property law abroad.
The analysis of the regulatory framework and scientific literature has shown that in modern realities it is necessary to move away from the principle of physical unity of property to the principle of horizontal division of property.
Keywords: personal easement, property, property rights, the phenomenon of property rights, the principle of physical unity of property, the principle of functional unity of property
Tikhonov A. N.
Legal Relations Arising out of a Foster Family Agreement
In the paper, on the basis of the works of O. A. Krasavchikov devoted to the study of legal facts, legal prerequisites are highlighted, as well as legal facts – the grounds for the emergence and dynamics of legal relations arising out of a foster family agreement. It is proved that the relations arising from the appointment of citizens wishing to become foster parents, guardians (trustees), as well as relations for monitoring the activities of these citizens by the guardianship bodies, are attributed to administrative and legal relations. The relations between foster parents and children arising from the implementation of upbringing, as well as the protection of their legal rights and interests, have a family legal nature.
As a result, the characteristic features of the legal relations between foster parents and foster children were identified. The legal relations under study are long lasting; they are not limited to the exercise of those rights and obligations that form their content; they can stop only in cases directly specified in the law; their main volume is made up of personal non-property relations.
Keywords: placement of children left without parental care, foster family, foster family agreement, guardianship
CIVIL PROCEDURE
Branovitskiy K. L., Yarkov V. V.
Possible Ways of the Civil Procedure Transformation under Digitalization and Pandemic: Predictive Justice
The development of artificial intelligence and its possible application in justice are very popular topics in various scientific forums. At the same time, discussion is focused more on general philosophical issues (a cyber judge and the limits of artificial intelligence) than on procedural aspects of the matter.
The approach proposed by the authors allows considering the practical advantages of using predictive justice in the context of Russian reality. First of all, we are talking about the possible partial filling in this way of such gap as the absence in the national doctrine of the institution «richterliche Hinweispflicht» developed by the German procedural doctrine. In some cases, the lack of an equal dialogue with the parties and their representatives following from this institution leads to a violation of the right to be heard («Anspruch auf richtliches Gehör») and the adoption of «unexpected» judgments for the participants in the proceedings. Particular emphasis is placed on digitalization and the pandemic, which are also driving the development of predictive justice. The authors substantiate the limits of the use of predictive justice based on the current concept of the judiciary.
Keywords: civil procedure, German civil procedure, right to be heard, digitalization, pandemic, judicial leadership, predictive justice
Vatamanyuk V. O.
Conclusion of a Settlement Agreement in the Group Proceedings of Foreign Countries
The experience of using the institution of group proceedings in foreign countries illustrates that most cases end with the conclusion of a settlement agreement between the parties. The article reviews the procedure features of concluding a settlement agreement in the group proceedings of the United States, Great Britain, Sweden, Germany and the Netherlands, shows the procedural features of the conclusion of a settlement agreement when considering disputes involving a large group of members.
The main attention is paid to the procedural features of the conclusion of a settlement agreement depending on the model of group proceedings – opt-in or opt-out. The author studies an issue of independent conclusion of a settlement agreement by the group members. It is discovered that in most legal systems that are based on the opt-out proceedings the right to conclude a settlement agreement belongs to the group representative. The issue of concluding a settlement agreement in foreign countries that base group proceeding on the primacy of the will of the group members of the opt-in group is resolved in different ways. The author concludes that the presence or absence of an initially expressed consent to join the group’s action – opt-in or opt-out – is not a factor that determines the procedural features of concluding a settlement agreement in the group proceedings of foreign countries.
Keywords: settlement agreement, amicable settlement of a dispute involving a large group of members, group action, group proceedings, protection of the rights and legitimate interests of a group of persons, model of group proceedings
INTERNATIONAL LAW
Anichkin Ye. S., Serebryakov A. A.
Models of Regulatory Support for International Scientific and Technical Cooperation and Management of the Results of Joint Research
Many aspects of international scientific and technical cooperation do not have an appropriate regulatory framework. This is especially true for the emerging regional integration unions. One of the problematic issues is the definition of an adequate approach to the management of the results of joint research. Some of them may be protected intellectual property that is created in the course of international scientific research. For this reason, it is important to formulate proposals for building an appropriate model of international legal support for such results.
Based on a comparative analysis of the legal acts of the European Union, the Commonwealth of Independent States and the Eurasian Economic Union, three models of legal regulation of international scientific and technical cooperation are distinguished: decentralized, centralized and sectoral models. It seems that they are not alternatives to each other, since their application is determined by the level of integration of the states that are part of the respective regional unions. The main principles are highlighted, on the basis of which a model of legal support for the management of the results of joint scientific research in the framework of international cooperation should be built. In particular, it is a fair distribution of intellectual property rights created as a result of such cooperation, and income from its use; obligatory provision of the participants of cooperation with open access to scientific publications and research data, etc.
Keywords: international scientific and technical cooperation, international law, legal regime of scientific research results, data management, regional international organizations, European Union, Commonwealth of Independent States, Eurasian Economic Union
LAND AND ENVIRONMENTAL LAW
Vinnitskiy A. V., Vagina O. V., Gaevskaya E. Yu.
Rules for the Construction of Buildings on Garden Land Plots and the Consequences of Their Violation
The paper analyzes the system of updated legal sources regulating the construction of buildings on land plots provided to citizens for gardening. Special attention is paid to the Code of Rules 53.13330.2019, which establishes the rules for the development of land for horticultural associations.
Attention is focused on the requirements for the minimum margins from the borders of neighboring land plots when constructing buildings on garden land plots. The analysis and generalization of relevant judicial practice for 2019–2020 on the demolition of illegally erected buildings were carried out. It was found that the courts either refuse to claim for the demolition of an illegally erected building on the grounds of insignificance of violations, or seek other ways to restore the violated rights and legitimate interests of the plaintiffs, not involving the demolition or transfer of a building erected with a deviation from the established requirements.
In conclusion, the authors note the need to improve and more thoroughly regulate the legal institution of neighbor law in order to ensure the implementation of the principle of rational use of land plots; the need to establish reasonable restrictions taking into account the rights and legitimate interests of adjacent land users was also pointed out.
Keywords: neighbor law, minimum indents from the borders of neighboring land plots, illegal construction, demolition of illegally erected buildings, garden land, gardening non-profit partnership
Voronin B. A., Chupina I. P., Voronina Ya. V.
Agrarian Law as a Regulator of Relations in Modern Agriculture
Using the methods of analysis, synthesis, generalization, comparative jurisprudence and legal forecasting, the authors consider agrarian law as an independent branch of Russian law. The main normative acts regulating agrarian relations are given in the paper. They include the Land and Civil Codes of the Russian Federation, and certain federal laws.
The authors studied and presented the principles of modern agrarian law, noting that many of them are the legacy of agricultural law. In this regard, it is concluded that it is necessary to re-evaluate the principles of modern agrarian law, taking into account the current state of Russian agriculture and the prospects for its development. The authors propose to formulate new principles of agrarian law based on the principles of agrarian policy established in the Federal Law «On the Development of Agriculture». These principles are aimed at the formation of institutions of agrarian law and the development of this industry.
Keywords: agrarian law, agrarian legal relations, agricultural activity, regulation of public relations
CRIMINAL PROCEDURE
Kazakova A. V.
Can a Copy of the Document be Used as Evidence in the Russian Criminal Procedure?
Persons involved in judicial legal relations are often deprived of the opportunity to transfer the originals of documents to the judicial authorities. At the same time, in some cases copies |of documents cannot be considered as a proper alternative to the original ones. The breadth of judicial discretion regarding the admissibility / inadmissibility of using copies of documents forms controversial judicial practice, which, in turn, negatively affects the authority of the judiciary in the eyes of lawyers.
The author analyzes the norms of the Criminal Procedure Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, the Code of Civil Procedure of the Russian Federation using the comparative legal method. As a result, the criteria for the admissibility of copies as evidence are established. The author also draws attention to the ambiguity of the approach in this matter, depending on the type of justice. It is concluded that the basic legal provisions regarding the handling of copies of documents developed within the framework of civil and arbitration court procedures cannot be applied to criminal proceedings. The criminal procedure has its own internal logic aimed at establishing the truth, which minimizes the use of copies as evidence. Based on the results of the research part, the peculiarities of the introduction, establishment and evaluation of copies of documents were formulated.
Keywords: freedom to evaluate evidence, another document as evidence, mode of work with copies of documents, features of the assessment of information confirmed by copies
Ramenskaya V. S., Nikitina E. V.
Problems of the Interaction of Private and Public Law on the Example of Compensation for Harm in the Framework of Criminal Proceedings
In the paper, an attempt has been made to comprehensively consider the problem of compensation for harm in criminal proceedings. The aim of the study was to find ways to compensate harm, taking into account the causes of its occurrence. The authors propose to divide all cases of harm into several groups. The first group should include all cases when harm is caused by a crime. The second group unites cases of when harm is caused by illegal or unjustified criminal prosecution. The third group includes all other cases of harm, among which it is proposed to single out harm caused by public authorities (we are talking about situations not related to the rehabilitation of a citizen).
The relations included in each of the groups have not only specific grounds for occurrence, which should determine the approach to their legal regulation, but also a special subject composition, the principles underlying the interaction between them.
The methods of criminal procedural law are obviously not enough to achieve this goal, therefore the authors decided to look at the situation more broadly and use a systematic approach to find the best ways to compensate for the harm of each group. Revealing the content of the systematic approach and its main regularities, the authors proposed to apply it to develop mechanisms for the restoration of rights, taking into account the functional similarity of the objects of regulation.
Keywords: compensation for harm, criminal process, interaction between private and public law in criminal proceedings, a systematic approach to improve the current legislation
LABOR LAW
Gubareva A. V.
Russian Legislation Regulating the Use of Foreign Labor
The author points out that migration in the Russian Federation is regulated at the level of international legal acts, federal laws, by-laws and regional laws. This paper is devoted particularly to the issues of legislative and subordinate regulation of this area.
The provisions of the basic Federal Law «On the Legal Status of Foreign Citizens in the Russian Federation» are given. They establish the possible statuses of foreign citizens in Russia and the documents required for their employment. The Labor Code of the Russian Federation defines
the features of the regulation of the labor of such workers. The article also discusses the issues of their taxation, medical, social and pension insurance. By-laws (decrees of the President of
the Russian Federation, decrees of the Government of the Russian Federation, orders of the Ministry of Internal Affairs of the Russian Federation) establish the migration policy of the Russian Federation, rules for obtaining visas, patents, residence permits and temporary residence permits, as well as restrictive measures on labor migration that protect the labor market.Keywords: foreign labor, migration, migration legislation, use of foreign labor
LAW ENFORCEMENT AGENCIES
Mitin A. N., Rassokhin A. V.
Management Process in the Prosecutor’s Office:Tasks and Improvement Mechanism
The article deals with the legal and organizational aspects of improving the management process in the activities of bodies and organizations of the Prosecutor’s Office of the Russian Federation. The paper analyzes the current legislation and the opinions of leading scientists in the field of public administration, substantiates the need to overcome obstacles in improving the management process of bodies and organizations of prosecutor’s offices in the period of their digital transformation.
The two most important tasks of the prosecutor’s office bodies and organizations are analyzed. These are improvement of internal management and information support. The authors consider internal management in the bodies and organizations of the prosecutor’s office as a type of public administration, and note the role of the President’s messages to the Federal Assembly in it. In terms of information support for the bodies and organizations of the prosecutor’s office, attention is drawn to the introduction of departmental information systems and software systems, the influence of information and analytical activities on the work of the prosecutor’s office is emphasized, and information security issues are touched upon.
Keywords: management process, prosecutor’s office, internal administration, information support, functions
HISTORY OF STATE AND LAW
Zhabreev M. V.
From the History of the Entrepreneurial Law Development in Russia and the Urals during the NEP Years
The article is devoted to the emergence of the entrepreneurial law in the RSFSR and the «revival» of entrepreneurial activity in Russia and the Urals during the period of the new economic policy in 1921–1929. The Soviet state completely refused the legislation of the Russian Empire in the field of regulation of entrepreneurial activity, therefore new law was formed. It was based on the administrative-legal (public) regulation of entrepreneurial activity, while civil (private) law played only an auxiliary role.
The author considers the key policies introduced by the Russian government. These include the establishment of the cost accounting principle at a state enterprise, the permission of private entrepreneurship and the lease of state enterprises, etc. The paper pays particular attention to studying such policy as attracting foreign capital, equipment and technologies for the creation of industrial concessions. For instance, the description of the concession of A. Hammer, which developed asbestos mines in the Urals, is given. The author emphasizes that despite the high profitability of such enterprises, their share in the total volume of production in the country was small.
Keywords: new economic policy, entrepreneurial law, business accounting, private entrepreneurship, foreign concessions, archival sources, memoirs of eyewitnesses
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Russian Law: Education, Practice, Research. 2021. № 3
No. 3 (2021)CRIMINAL LAW
Sabitov T. R., Dolinina L. A.
Differentiation of Criminal Responsibility for Petty Commercial Bribery
In 2016, criminal liability for commercial bribery and bribery of an official in the Russian Federation was mitigated: the norms providing for liability for these acts with mitigating circumstances were included in the Criminal Code of the Russian Federation The legislator provided for a small amount of illegal remuneration as such a mitigating circumstance. In this paper, the authors do not aim to criticize the need for such a legislative decision, but it’s very implementation is subjected to criticism in relation to the rule on petty commercial bribery. In the opinion of the authors, the differentiation of responsibility for small commercial bribery (Article 204.2 of the Criminal Code of the Russian Federation) was ill-considered in contrast to the differentiation of responsibility for commercial bribery (Article 204 of the Criminal Code of the Russian Federation). In this regard, in the practice of applying these norms, questions arose, which had to be answered by the Supreme Court of the Russian Federation in the corresponding resolution of the Plenum.
This authors assess the public danger of aggravating circumstances provided for in the article on commercial bribery. On this basis, in order to differentiate responsibility, it was proposed to add a number of aggravating circumstances to the article on petty commercial bribery.
Keywords: petty commercial bribery, bribery of an official, differentiation of criminal liability, qualified staff, competition of norms
Gladych N. V.
Qualification of Financial Crimes in Cyberspace
For the correct application of criminal legislation, it is important to understand the essence of a certain act of human behavior, taking into account his motivation and the purpose of the law to be applied. Financial crime in cyberspace is a complex subject to study, but without proper classification it is difficult to determine how to detect it and how to respond to it. At the same time, there is no uniform definition of financial crimes at the international level. The author examines their definitions and classifications proposed by Russian and foreign scholars, as well as those provided in some international legal acts. In addition, the classification of cybercrimes in the Council of Europe Convention on Cybercrime is analyzed. Its main drawback is the lack of a single criterion for distinguishing between crimes.
The author notes that financial crimes are cross-border in nature due to the widespread use of information and communication technologies. The features of money laundering on the Internet, criminal schemes using online payments and online casinos are considered. Attention is drawn to the problems of combating criminals due to their use of virtual currency, which is not regulated at the legislative level. It is emphasized that due to the social danger and complexity of the acts investigated in the article, they should be distinguished as a special type of crime.
Keywords: criminal law, crime, qualification of crimes, financial crime, cybercrime, cyberspace, financial activity
Kurdukov A. N.
System of Terrorist Crimes
The article describes the approaches to identifying types of terrorist crimes, which are provided for in the criminal legislation, clarifications of the Plenum of the Supreme Court of the Russian Federation, and instructions from the Prosecutor General’s Office of Russia. The author believes, that an excessively broad approach to terrorist crimes is enshrined in the current legislation,
which creates additional difficulties in qualifying the relevant acts, their delineation from each
other and from related offenses. The legislator is far from always consistent, which leads to
unjustified competition of criminal law norms.A brief review of criminal law provisions providing for liability for terrorist crimes made it
possible to identify a number of their shortcomings. Many of them are associated with the legislator’s incorrect definition of the direct object of the crime. To resolve them, the author proposes to
place articles of the criminal law on terrorist crimes in Chapter 34 «Crimes against Peace and Security of Mankind», Section XII of the Criminal Code of the Russian Federation. This will make
it possible to overcome contradiction between the elements of terrorist crimes and the doctrine of complicity in a crime.The author also criticizes the sanctions of articles on terrorist crimes. Their toughening will allow bringing them into conformity with the rules of punishment established by the science of criminal law and enshrined in legislation.
Keywords: terrorism, terrorist activity, terrorist crimes, criminal responsibility, terrorist act, assistance to terrorist activity, sanction, criminal punishment
CRIMINAL PROCEDURE
Rudich V. V.
On the Modern System of Measures of Criminal Procedural Coercion – Preventive Measures
The author analyzed the system of preventive measures used in pre-revolutionary Russia, Soviet Union and Russian Federation. The definitions of the relevant concepts are studied. Historical and comparative legal methods were used, as well as relying on the dogmas of legal hermeneutics.
The research showed that the modern system of preventive measures is ineffective: the preventive measures used in criminal proceedings are outdated. To improve the effectiveness of this system it is proposed, in particular, to abandon the measures of restraint of a psychological nature, to identify the measures of a police-compulsory nature as measures that additionally guarantee the use of bail or restriction of freedom. The system of restrictions and obligations should be structured to ensure the proper conduct of the accused who is not taken into custody. The paper indicates the need for conceptual changes in the system of preventive measures.
Keywords: preventive measures, security measures, detention, restriction of certain actions, psychological measures, police-coercive measures, measures of deprivation of liberty
Shishkina E. V.
Problems of Protecting of the Rights of Minors Involved in Criminal Proceedings
The positive trend of expanding the rights of minor participants in criminal proceedings does not eliminate the problems of their regulation, including the difference in approaches to determining the scope of rights of minor victims (witnesses), and suspects (accused), as well as their legal representatives. The legislator restricts the list of persons who can be legal representatives of minors in the investigation procedures, as well as their rights in conducting investigative actions. The law does not contain rules governing the conduct of a number of investigative actions involving minors, including those in which compulsory procedures may be applied.
The issues of making a decision on organization of a confrontation with the participation of a minor victim and a witness, as well as techniques for creating the safest conditions for participants, are considered. Taking into account the domestic practice of organizing confrontations and international experience in protecting the rights of minors during confrontations, it is proposed to use technical means of fixation and remote methods of investigative actions. The conclusion is formulated about the need for a systematic approach to changes in the criminal procedure law in terms of regulating the rights of minor victims and witnesses.
Keywords: minor, victim, witness, legal representative, protection of rights, security of participants, confrontation, video recording, remote methods of investigative actions
CIVIL PROCEDURE
Onosov Yu. V., Borodailyuk M. A.
Judicial Discretion in Evaluation of Evidence in Civil Proceedings
The authors analyze in detail the legal nature of the term «judicial discretion», it’s correlation with related categories and formulates the criteria for its distinction. The essence of judicial discretion and judge’s inner convictions when the court evaluates evidence in civil cases is also studied. Each civil case is individual and it is impossible to provide all the details in legal norms. At this stage the limited freedom of the court opens up in the formation of internal attitude in a specific legal case, and, in particular, for the judicial discretion.
The study of judicial practice shows that the ambiguity in determining the reasons for which the court made a particular decision entails an appeal against judicial acts, and, subsequently, their cancellation. This negatively affects statistics and diminishes the authority of the judicial system. The authors conclude that there is a need for more effective legislative regulation of the requirements for a court decision and for a more detailed study of the criteria to which the motivation part of a judicial act must comply.
Keywords: discretion, judicial discretion, inner conviction of a judge, evidence, civil procedure, civil case
LABOR LAW
Balitskiy K. S.
Training and Additional Professional Education of Employees: Defects in Legal Regulation and Judicial Practice
It is no coincidence that relations on training and additional vocational education are included in the subject of labor law, since their regulation allows ensuring a balance of the needs and interests of both parties to the labor relationship. This article is devoted to the problematic issues of this institution of labor law.
The author highlighted a number of defects in labor legislation connected with 1) granting the right to conclude an apprenticeship agreement only to such employers as legal entities, 2) the amount of the scholarship that is paid to students during the period of study at the expense of the employer, 3) the subject of the apprenticeship agreement, the approach to the definition of which was changed by the Supreme Court of the Russian Federation under conditions of invariability in this part of Art. 199 of the Labor Code of the Russian Federation, 4) the possibility of including in the apprenticeship agreement a condition on the full reimbursement by the employee of the costs incurred for training, regardless of how long he worked after its completion, 5) the content of the category «training costs». Ways to overcome these defects are proposed.
Keywords: labor law, employee training, employment contract, apprenticeship contract, court practice, labor law defects
INFORMATION LAW
Dzhenakova E. V.
On the Issue of Classification of Subjects of Information Dissemination
The paper identifies the difficulties of systematization in information law, in particular the problems of classification of the subjects of information relations. For instance, there is no clear distinction between the concepts of «subject of information law» and «subject of information legal relation». Difficulties also arise in the development of a single classification criterion.
special attention is paid to problems of classification of subjects of information dissemination relationship. Determining subject composition is difficult due to structural complexity of legal relation under study. The author suggests possible ways to resolve them, in particular, to consider the object of information dissemination as a criterion of classification. The author proposes to take into account two criteria when building a system of subjects of information legal relations: functional-activity and objective. It seems that the classification of subjects built according to the specified criteria will ensure consistency and relevance of legal norms. And this, in turn, guaranties efficiency of legal regulation.
Keywords: subjects of information legal relationship, subjects of information dissemination, problems of classification of subjects of information dissemination, object of information dissemination, criterion of systematization
BUSINESS LAW
Bazhina M. A.
The Quality of Transport Legislation of the Russian Federation
The legislation quality is the business card of each state. The higher level of legislation is, the stronger is the basis for the functioning of all economy braches. The necessity to cover the issues of transport legislation quality is connected with the fact that transportation legislation is in the hinge period. Using the comparative historical method, the author analyzes the transportation legislation of the previous periods (of the Russian Empire and Soviet Union) that is inherited by the Russian legislator, and concludes that it does not correspond to requirements of modern economy and political situation. The number of acts devoted to transportation issues has sufficiently increased, this raises a question of the quality of transport legislation. The author gives certain examples that illustrate its decrease.
The article describes the criteria that determine the quality of transport legislation: systematic approach to the development of laws; their compliance with modern requirements and trends in society; compliance of legislation with legal and technical requirements.
Keywords: transport activity, quality of legislation, systematic character of legislation
TAX LAW
Zimul’kin M. I.
Procedural Guarantees of Taxpayers in International Mutual Agreement Procedures
Effective mechanisms to eliminate multiple taxation contribute to economic development, including through the creation of a favorable investment climate, for each of the contracting states. One of such mechanisms is considered to be the mutual agreement procedure between the fiscal authorities of the contracting states. The legal basis for these procedures is provided by the agreements for the avoidance of double taxation, the Tax Code of the Russian Federation, decrees of the Government of the Russian Federation, as well as the other acts of executive authorities.
The author considers the issues of regulation of mutual agreement procedures, including problems of determining the order and timing of consideration of a taxpayer’s application for a mutual agreement procedure. The importance of procedural guarantees of taxpayers established in the legislation of the Russian Federation on taxes and fees is emphasized. Diminishing the procedural rights of taxpayers leads to a violation of the balance of private and public interests. The author also defines a list of the main procedural guarantees of taxpayers during the mutual agreement procedure, including the right to file an application for a mutual agreement procedure, the right to reply on the results of the consideration of the application and the right to openness of information (transparency).
Keywords: tax, tax procedures, tax rules, tax procedural rules, tax disputes, mutual agreement procedures, double taxation
LEGAL EDUCATION
Sel’kova A. A.
Review of the Methods Used to Form the Competencies of Future Lawyers
The author analyzes traditional and innovative methods of legal education and concludes that it is necessary to use these methods together for a more complete achievement of all the goals of the educational process. The successful use of interactive and classical forms and methods of teaching implies an increase in theoretical and practical skills of students, and allows combining educational and research work. The author emphasizes the value of using interactive forms and teaching methods, with the help of which many educational goals and objectives for the development of the intellectual and creative potential of students can be achieved, which fits into the modern paradigm of the labor market.
Keywords: higher education, legal disciplines, teaching methods, educational process
Sokolova L. A.
Translation of Scientific Articles from Russian into English (from the Viewpoint of Erratology)
The author considers the translation of scientific articles on different branches of law from Russian into English from the viewpoint of erratology, i. e. analyzing the most common errors in translation. It is extremely important to remember that you can correctly translate a sentence from the viewpoint of vocabulary and grammar, but native speakers no longer use such constructions and expressions. It is necessary to correctly perceive the linguistic picture of the world in a different, not native, language. That is why the author of the article does not focus on theoretical issues of what is considered an error, but on the basis of her practical activity wants to draw the attention of colleagues to what makes you immediately feel that a text is not an original, but a translated one. Among the most common errors are those related to the inability to correctly choose English equivalents, inattention to typical grammatical constructions or the communicative order of words, etc.
At the end of the article the author gives recommendations to prevent errors to improve the quality of translation of scientific articles from Russian into English.
Keywords: scientific article, translation from Russian into English, erratological aspect, most common errors, erratology in translation
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Russian Law: Education, Practice, Research. 2021. № 2
No. 2 (2021)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
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Russian Law: Education, Practice, Research. 2021. № 1
No. 1 (2021)HUMAN RIGHTS
Krylatova I. Yu.
Legal Transformation of Human Dignity
Human dignity is a complex legal category with large percentage of non-legal nature. Moral and ethic norms are a core stone of human dignity making the dignity concept extremely flexible. This can be seen in biomedical sphere and in the latest challenges of biotechnologies where people have become active users of their somatic rights. Comprehensive understanding of human dignity concept is a matter of understanding the limits of enjoyment of somatic human rights which are currently in focus of biotechnological achievements. With this respect the international principle of inherent dignity should be the key principle of national rule of law and legislation. Intense national debate about human dignity focuses on various cultural and historical traditions and should not reduce the international understanding and international guaranties of human dignity protection.
This paper reviews legal transformation of the issue of human dignity and the essence of this category in the light of biomedical breakthrough. The discussion will turn to human dignity as it is understood in international law, domestic constitutional law of foreign countries and constitutional doctrine. Starting with the analysis of various approaches of stipulation of dignity at international and domestic level, the paper indicated the risk of setback to the achievements in reaching international consensus of inherent dignity. The author overviews the most important constitutional amendments focused on human dignity as a key concept of legal system in foreign countries after adoption the Oviedo Convention.
Based on the analysis of the practice of the Constitutional Court of the Russian Federation and separate opinions of its judges in the sphere of surrogacy motherhood and organ donation the author makes the conclusion about the interdisciplinary transformation process of the human dignity concept and its nature.
Keywords: human dignity, international regulation of rights and freedoms, national regulation of rights and freedoms, the Constitutional Court of Russia, Convention on Human Rights and Biomedicine, somatic rights
INTERNATIONAL LAW
Badretdinov V. R.
The Problem of Determining the Limits of Realization of the Right to Freedom of Expression (Exemplified by Child's Rights)
For determining the limits of the implementation of the right to freedom of expression, the paper provides an analysis of the philosophical and legal aspects of freedom, intellectual freedom and the right to freedom of expression. The understanding of this right depends on understanding of the social value of freedom itself. In particular, some philosophers consider freedom as a creative energy, others believe it is a part of human being. In a philosophical sense, the expressed opinion does not require regulation, since it is not directed to the objective world. At the same time in a legal sense, the freedom of expression is as part of intellectual freedom; intellectual activity requires a legal determination. For correct legal regulation, an analysis of such a category as «person» is required, since its development affects the attitude of law to a person.
The author investigates the regulation of a child’s right to freedom of expression in international legal acts and in the relevant judicial practice. The author concludes that there is no protection of a child’s active right to freedom of expression, and also analyzes the reasons for a protection of his right exclusively from a passive point of view.
Keywords: right to free expression of opinion, intellectual freedom, rights of a child, ECHR, freedom of speech
Smetanin N. V.
Unilateral Declarations of States on the Internet: Limits of Bindingness
Due to the development of information technologies unilateral declarations of states made via the Internet become an integral part of international relations. The author examines the criteria for the validity of unilateral declarations of states and assesses their applicability to statements made on social media.
The following criteria are distinguished: the presence of a textual component in the unilateral declarations; commission of an act by an authorized representative of the state; the accuracy and clarity of the wording in the declaration; expression by the state of its intention to be bound by a declaration. Since Internet communication involves the transfer of information in the textual form, all declarations of states on the Internet can be considered as unilateral acts of states. By virtue of their functions, heads of state, heads of government, and ministers of foreign affairs are competent to formulate unilateral declarations. Other persons representing the state may be authorized to impose obligations on the state. Therefore, to unambiguously resolve the issue of powers, it is necessary to refer to the norms of national law. The legal consequences of the declaration must be derived from its text since if the wording is unclear, the alleged legal consequences become unattainable. Finally, the intention of a state to be bound by a declaration is established through the context and circumstances in which such a declaration is made. The author comes to the conclusion that the form and method of transmission of states’ declarations cannot be used to limit their legal force, and international law does not exclude legal consequences for such declarations.
Keywords: unilateral act of state, unilateral declaration of state, validity of unilateral acts, international treaty, intention (will) of state, Internet communication
PROCEDURAL LAW
Melnik N. N.
Issues of Exclusive Jurisdiction of Russian Courts Over Legal Persons Subject to Sectoral Sanctions of the USA and the European Union
The problem of finding ways to protect the rights and interests of legal persons involved in the United States and the European Union sectoral sanctions arose out the unpredictability of the United States and EU sanctions policy. For this reason, the changes were made to the Russian arbitration proceedings. The article analyzes the resent amendments to the Arbitration Procedural Code of the Russian Federation. The new norms provide for exclusive jurisdiction of Russian arbitration courts over disputes involving subjects of sectoral sanctions and disputes arising out of the United States and European Union sectoral sanctions. The amendments also include anti-suit injunction that allows a sanctioned person to preclude the other party from starting or continuing foreign court or arbitration proceedings.
It was concluded that the changes in the arbitration proceedings that have come into force correspond to the trend generated by the recent amendments to the Constitution of the Russian Federation, which actually established the supremacy of the Constitution and Russian law over the relevant provisions of international law.
Keywords: US sanctions, EU sanctions, exclusive jurisdiction, arbitration clause, sectoral sanctions
Koroleva E. V.
Appeal to the President of the Court with a Request to Speed Up the Consideration of the Case
The author reveals the concept, goals and significance of the institute of speeding up case consideration, enshrined in the procedural legislation and scien-tific doctrine. A significant role in the consideration of a relevant petition is played by the court chairman, who acts as a guarantor of the reasonableness of time lim-its of court proceedings and ensures that the judges act in accordance with the procedural legislation (in terms of time limits for consideration of a case).
It is determined whether the institute under study complies with the princi-ples of independence of the judiciary and the inadmissibility of interference in the activities of a judge. The author identifies the peculiarities and procedural prob-lems of application of the institute of speeding up case consideration. The motives for denial of applications for speeding up case consideration are outlined.
Keywords: chairman of the court, judicial proceedings, justice, procedural legislation, institute
of speeding up case consideration, reasonable time for legal proceedingCRIMINAL LAW
Evdokimov V. B., Khomyakova M. A.
Criminal Law Protection of Human Rights in the Field of Organ and Tissue Transplantation
The right to life and health, like any other right guaranteed by the Constitution of the Russian Federation often becomes an object of criminal encroachments. The paper is devoted to the issue of illegal transplantation of human organs and tissues. There exists a duality of Russian medical law in the field of transplantation: two federal laws contradict each other regarding the presumption of consent to the post-mortem removal of human organs and tissues for donor purposes. The practice of the Constitutional Court of the Russian Federation is analyzed (the Rulings of December 4, 2003 № 459 on the Refusal to Accept for Consideration the Request of the Saratov Regional Court to Review the Constitutionality of Article 8 of the Law of the Russian Federation «On Transplantation of Organs and (or) Tissues» and of February 10, 2016 № 224 on the Refusal to Accept for Consideration the Complaint of the Citizens Biryukova Tatiana Mihailovna, Sablina Elena Sablina and Nellie Stepanovna on the Violation of their Constitutional Rights by Article 8 of the Law of the Russian Federation «On Transplantation of Organs and (or) Tissues», etc.).
The authors propose the creation of a unified digital database that records the consent or disagreement of citizens of the Russian Federation to the posthumous seizure of organs and tissues for donor purposes. In order to avoid criminal acts of medical workers (failure to help the patient) in order to obtain human organs for selfish purposes, it is recommended to make this information available only after death of a citizen.
The analysis of the legislation also showed that, despite the ban on the sale of human organs and tissues, there is no article in the Criminal Code of the Russian Federation providing for punishment for such transactions.
Keywords: human organs and tissues, transplantation, donation, presumption of consent, Constitutional Court of the Russian Federation
COMPARATIVE LAW
Kokotova M. A.
The Formation of the Territorial Body Management (Russia) and the Citizen Counsels, Quarter Counsels (France)
The paper investigates the problem of the public involvement at a local self-government on the example of the territorial body management (Russia) and the citizen counsels, the quarter counsels (France). The methodology is based upon comparative legal studies. The aim is to identify and explain the difference between the methods of legal regulation used by the national authorities for ensuring the optimal composition of the forms of citizen participation under study. The following methods are identified: 1) the methods stimulating the involvement of citizens, such as simplification of the procedure of admission; unlimited period of admission; minimal requirements for participants; 2) the methods of selection of candidates such as leaving the formation of organization to the discretion of its future partners, limited number of participants, different categories of participants from different social groups.
The author concludes that there is some difference between the methods used by French and Russian legislators caused by the difference of their tasks. The number of the participants of the citizen counsel is limited, that’s why there is a necessity in the methods permitting to choose the participants when some candidates are excessive or lacking. Such methods are not necessary for Russian territorial body management because the members are not limited in number, but
it can be interesting for other organs (for example, civic chambers).Keywords: local self-government, citizen participation in local self-government, territorial body management, citizen counsels, quarter counsels
HISTORY OF THE STATE AND LAW
Zhabreev M. V.
Legal Regulation of Entrepreneurial Activity in the Russian Empire and the Urals in the Late XIX – Early XX Centuries
The author analyzes the regulation of the entrepreneurial activity in the Russian Empire and the Urals in the late XIX – early XX centuries from the historical and legal standpoint. Russian legislation concerning organization of functioning of the mining and metallurgical industries, as well as the definitions of the concepts of the handicraft industry, craft and trades were studied. The paper indicates the organizational legal forms and procedures for the creation of industrial enterprises, including special restrictions for foreign nationals associated with the production of weapons and ammunition for the Russian army. Examples of the opening and functioning of industrial enterprises in the Ural region, including enterprises with the participation of foreign investors, are indicated.
It was concluded that during the period under review the formation of the legislative framework in industry at the national level was taking place. This contributed to the rapid growth in the number of factories and manufactories, which in turn was a key factor in the commercial and industrial development of Russia.
Keywords: entrepreneurship, Russian empire, Ural region, legal regulation of the mining and metallurgical industries
Shamsumova E. F.
The Transformation of the Soviet Legal Education in the 1920s
and Mid-1940s and its Reflection in Domestic Literature of Those YearsThe search for the optimal organization of the training of legal personnel in the young Soviet state was proclaimed one of the primary tasks in the conditions of the new ideological construction. The article shows the main directions of the transformation of Soviet legal education in the
1920s – mid-1940s. The reflection of these processes in the special literature of that time, in particular, in specialized periodicals, is also analyzed. The most important publications were contained in
the journals «Weekly Soviet Justice» and «Socialist Legality». Their authors were representatives
of the leading scientific community and statesmen, who revealed the needs of the educational process in the new conditions.The aim of the undertaken work, among other things, is an attempt to objectively assess the problems of legal education in the first decades of Soviet power. It was then that its goals and objectives were formulated, political and legal, ideological, organizational and managerial, scientific and methodological structures were determined. Reforms in the field of legal education began in
1918, but they were hampered by both the lack of the material base and the experience of
scientific and theoretical research on this topic.In the study, the author uses problem-chronological, system-structural, system-functional, formal-legal and comparative methods.
Keywords: higher education, legal education, training of legal personnel, legal institutes, educational plans, Soviet government, Soviet law, years of war, legal scholars
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Russian Law: Education, Practice, Research. 2020. № 6
No. 6 (2020)Bublik V. A.
On the Legal Regulation of Cross-Border Insolvency in the Russian Federation
Cross-border insolvency remains a poorly studied topic in Russian legal literature. In addition, there is no special legal regulation in this area: the legislative provisions concerning cross-border bankruptcy are limited to indicating the application of the principle of reciprocity when deciding on the recognition of foreign judgments and the extension of the principle of national treatment to foreign creditors. Moreover, even the principle of reciprocity is not applied by the courts due to its narrow interpretation. At the same time, general rules in such disputes are essentially inapplicable.
Domestic courts use the collision binding lex fori concursus despite the absence of its legislative consolidation. This approach cannot be called effective. An analysis of the small number of judicial decisions and conflict legislation allows us to state that such conflict of laws as the personal law of an individual and a legal entity are inapplicable to cross-border insolvency issues. The author notes that legislative acts in the area under study have not been adopted. It is concluded that the existing legislation is ineffective in regulating cross-border insolvency (which, from the point of view of legal policy, suits the Russian legal order) and, in fact, is aimed at protecting domestic creditors.
Keywords: cross-border insolvency, bankruptcy, material and procedural aspects of the institution of cross-border insolvency, foreign element
Gubareva A. V., Kovalenko K. E., Kovalenko N. E.
Problems of the Legal Status of Cryptocurrency in the International Settlement System
Cryptocurrency is currently replacing the usual payment units from the financial market. At the same time, there is no consensus on the legal nature and legal status of cryptocurrency.
The article discusses the approaches to the regulation of cryptocurrency abroad (in Germany, Switzerland, USA, China) and in Russia. It is noted that many countries use the «currency of payment law» as a universal conflict of laws binding when determining the applicable law in the field of monetary obligations. However, not all national legal systems recognize cryptocurrency as a currency, so the issue of choosing the applicable law remains unresolved. The authors believe that the participants in the transaction can make the optimal choice themselves through the implementation of the principle of autonomy of will.
The results of the study of the perception of cryptocurrencies in 2018 (ING International Survey) are presented. The disadvantages of using cryptocurrency (its instability, hacker attacks on digital wallets, the lack of an appropriate legislative framework, the risk of losing cryptocurrencies due to errors in using it) are analyzed. The authors point out that the development of unified rules in the field of the use of cryptocurrency will entail a lot of difficulties associated, among other things, with the inability to control cryptocurrency movement, the difficulty of countering the legalization of proceeds from crime, etc.
Keywords: cryptocurrency, «currency of payment law», international settlement system
Voronin B. A., Chupina I. P., Voronina Ya. V.
Economic and Legal Regulation of Agriculture in Modern Russia
One of the greatest strengths of Russia throughout its history has been the development of agriculture. The paper presents the opinions of scientists on the importance of the relationship between law and economics in the framework of regulating the development of agriculture in Russia. The changes in the economic and legal regulation of this sphere in Russia from the end of the 20th century to the present day are described. This study uses methods of comparison, analysis, synthesis, and interpretation.
The provisions of the Federal Scientific and Technical Program for the Development of Agriculture for 2017–2025, the State Program for the Development of Agriculture and Regulation of the Markets of Agricultural Products, Raw Materials and Food for 2013–2025 are presented. It is concluded that for the preparation of legal acts focused on new technological solutions in the area under consideration, an integrated interdisciplinary approach to research and forecasting the implementation of scientific developments in agricultural production is required.
Keywords: agriculture, agricultural activity, legal regulation of agriculture, economic and legal support, agricultural law, agricultural legislation
Chudinovskaya N. A.
On the Reform of the Institute of Reconciliation in the Civil Procedure
The author attempts to evaluate the results of the reform of the institute of reconciliation of the parties under the Federal Law of July 26, 2019 № 197-FZ.
A number of positive aspects of the reform was highlighted: the unification of legislation in the field of reconciliation, the detailed legal regulation of conciliation procedures, the use of a conceptually correct approach to understanding the settlement agreement as a legal fact that completes reconciliation procedures, and not as an independent procedure, etc. However, the author also notes some issues that should be addressed. In particular, judicial reconciliation should be considered as a special case of mediation, and not as an independent conciliation procedure. It is proposed to give judicial reconciliation the character of mandatory mediation appointed by the court. The author expresses her point of view on such topical issues as the specifics of reconciliation of the parties in complicity, the choice of the form of stopping the trial, subject to the use of conciliation procedures.
In conclusion, the possibility of notarization of certain settlement agreements is discussed. In particular, such a procedure can be applied to so-called settlement disputes, where the terms of a settlement agreement usually come down to reducing the amount of debt, or setting new payment terms.
Keywords: reconciliation of the parties, conciliation procedures, settlement agreement, mediation agreement, mandatory mediation
Popov A. A., Popov V. A.
The Preliminary Disclosure of Evidence as a Manifestation of the Adversarial Principle of Arbitration in National and International Court Proceedings
This article is dedicated to the issues of application of Article 65 of the Arbitration Procedure Code of the Russian Federation, which establishes the obligation of preliminary disclosure of evidence. The latter represents one of the institutions of legal arbitration proceedings and a manifestation of the adversarial principle. The arbitration courts have interpreted the above-mentioned provisions of law in a limited sense, which was reflected in the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of August 13, 2004 № 82 «On various subjects related to the application of the Arbitration Procedure Code of the Russian Federation». Hereinafter, the article examines the legal norms of the foreign countries regulating preliminary disclosure of evidence, as well as practice of their application. The authors point out that the institution in question is regulated properly in the foreign countries and actively applied in civil cases of different types.
It is concluded that the current legislation of the Russian Federation fully provides for the use of the above-mentioned institution to prevent legal parties who participate in a case from misusing their procedural rights. In order to change the established case law related to the application of Article 65 of the Arbitration Procedure Code of the Russian Federation, the authors suggest publishing the relative explanations by the Plenum of the Supreme Court of the Russian Federation.
Keywords: disclosure of evidence, adversarial principle, arbitration procedure, abuse of procedural rights, foreign legislation
Sabitov T. R.
On the Use of the Terms «Mass Media» and «the Internet» in Corpus Delicti
The information and telecommunication technologies are developing rapidly, which, of course, is reflected in corpus delicti. The use of various information resources for criminal purposes is becoming an increasing problem for society. Therefore, it is no coincidence that the legislator’s reaction to this is to toughen the punishment provided for the illegal dissemination of information in sources to which an unlimited number of people have access. At the same time, there is often a haste to introduce such legislative novelties. Lawmaking issues are not always resolved systematically, which entails contradictions in the terminology used when constructing the corresponding corpus delicti.
Considering the terms «mass media» and «the Internet» used in the criminal law, the author tries to find out their relationship, as well as the logic of their use in the Criminal Code of the Russian Federation. Attention is focused on a large terminological spread, as well as difficult-to-explain combinations of these and related terms. The author proposes criteria for including them in one or another corpus delicti and insists on the unification of the terminology used in the Criminal Code of the Russian Federation.
Keywords: mass media, information and telecommunication networks, Internet, aggravated crime, illegal distribution of information
Shiryaev A. Yu.
The Problems of Assessment of Guilt in the Light of Error Juris Doctrine
The article discusses the problem of possible building an institute of error juris in national legislation and its perspectives in the national criminal law doctrine. The author analyses the ruling of the Constitutional Court of the Russian Federation under which part 4 of Article 222 of the Criminal Code of the Russian Federation is recognized inconsistent with the Constitution. A conclusion is drawn that this ruling is an example of the recognition at the level of constitutional proceedings of an excusable error juris (a legal error that eliminates guilt).
According to the author, despite the absence of excusable error juris institution in the current legislation in practice there are the same patterns in relation to special circumstances that eliminate guilt, which are the basis of the institution of error in law in Western European legal systems. The study leads the author to the idea that the problems in the development of the legal error doctrine are caused by the peculiarities of understanding the legislative and doctrinal construction of intentional guilt.
It is concluded that when assessing guilt, it is essential to determine the completeness of blamefulness and punishability of a person who has committed an act prohibited by the criminal law, or, conversely, to assess the behavior as excusable. The assessment of personal guilt is completely independent in terms of its criteria and subject matter in relation to the assessment of intent, which characterizes the very type of act provided for by the disposition of the norms of the Special Part of the Criminal Code.
Keywords: intention, intentional act, intentional guilt, construction of intentional guilt, excusable error juris
Ral’ko V. V., Ral’ko V. V.
Source Code Escrow and Notarial Deposit
The paper is devoted to the implementation of the task of a source code escrow as a special object of law through the use of notarial deposit. The authors demonstrate some approaches to legal regulation of a source code escrow, in particular, in the United States of America and the Republic of Kazakhstan. The legal status of a source code as an object of civil rights – the result of intellectual activity in domestic law – is revealed. The article also explains the difference between a notary’s acceptance of property in deposit as insurance against a creditor’s delay and for depositing, which is used to ensure the fulfillment of obligations of the parties to certain transactions.
Special attention is paid to the possibility of notarial deposit of movable things – material carriers of a source code. The notary acts as an escrow agent – a third party who accepts property for deposit in order to transfer it to one of the parties in case of occurrence of the circumstances or the fulfillment of the conditions provided by the parties in a joint statement. The authors cite as examples several situations in which the source code escrow can significantly reduce the risks of the parties to license agreements.
Keywords: notarial deposit, source code, escrow agreement
Zhilko I. A., Glushkova E. M., Kupirova Ch. Sh.
Abuse of Powers by a Private Notary: Corpus Delicti under Article 202 of the Criminal Code of the Russian Federation
The crime most often committed by private notaries is abuse of their powers (Article 202 of the Criminal Code of the Russian Federation). The paper examines this corpus delicti in detail in a theoretical aspect. The design features of Article 202, the object and subject of the crime are indicated, the signs of the objective side are considered (the use by a notary of his powers contrary to professional tasks and functions; consequences in the form of significant harm caused by the actions (inaction) of the notary; causal relationship between the act and the consequences).
The authors believe that the best option for establishing responsibility for this crime is a ba-lance between criminal punishment and the use of alternative measures. In addition, it is concluded,that further analysis of the problems of social conditionality, legal nature, classification and practice of applying the measures of a criminal law nature to a notary is necessary, as well as improving the law enforcement practice and criminal legislation.
Keywords: notary, corpus delicti, objective side, special subject, article 202 of the Criminal Сode of the Russian Federation
Berg L. N.
The Effectiveness of Procedural Activities as a Condition for Judicial Protection of Rights and Freedoms: a Review of the Monograph by S. A. Kurochkin «The Effectiveness of Civil Proceedings»
The reviewer notes the prospectivity of using the methods of economic analysis of law in the research conducted by S. A. Kurochkin. Attention is drawn to the fact that the methodological developments of outstanding Soviet scientists were used when writing the monograph. The reviewer comes to the conclusion that the monograph by S. A. Kurochkin is relevant and has scientific novelty.
Keywords: judicial protection, legal impact, effectiveness of norms, civil proceedings, rights and freedoms
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Russian Law: Education, Practice, Research. 2020. № 5
No. 5 (2020)LEGAL BASIS FOR GENOMIC RESEARCH
Semyakin M. N.
Civil Regulation of Relations Connected with the Use of Genetic Engineering Technologies in Agricultural Production
The article discusses general conceptual approaches to the problem of applying genetic engineering technologies in agriculture, as well as civil law aspects of regulating relations connected with the use of genetically modified organisms (GMOs) in the production and sale of agricultural products, liability for the unauthorized use of GMOs and causing harm due to this, ensuring proper protection of the rights and legitimate interests of consumers in this area. It is noted that scientists and practitioners express opposite opinions about this problem. Some are supporters of the application of genetic engineering technologies in the field of agricultural production, while others consider these technologies dangerous to human life and health and to ensuring a normal state of the environment.
The regulatory legal framework governing relations connected with the use of genetic engineering technologies and the law enforcement practice of the Russian Federation are analyzed. In order to improve the legislation, it is proposed to supplement and clarify some norms of the Civil Code of the Russian Federation. The methods used in the paper include historical-legal, logical-legal, systemic-structural, interdisciplinary legal, system analysis method.
Keywords: conceptual approach, civil law relation, contract, technical regulation, agricultural products, responsibility, guilt, beginning of infliction, genetically modified organisms, genetic engineering, consumer protection
Vladimirova D. S.
Analysis of Judicial Practice in the Field of Genomic and Genetic Research Including Legal Positions of the ECHR and Practice of Russian Courts
Due to the rapid development of research in the field of genomics and the proportionally growing number of legal issues in this area there is the need for the comprehensive legal regulation of this field. At present it is judicial practice that allows to identify the most urgent problems arising in the legal regulation. This paper presents the analysis of the core cases of the European Court of Human Rights in the field of genomic and genetic research (Parrillo v. Italy, Evans v. the United Kingdom etc.).
Main positions of the ECHR in the following areas are identified: the determination of legal regime of objects of genetic and genomic research, in respect of which its own separate legal regulation should be established that takes into consideration the specificity of such objects (these include genetic and genomic information, biological materials, human fetus); the search of balance between private and public interests in defining the limits of genomic and genetic research implementation, the balance which should be established in each case, and also with the use of general principles of law. It was concluded that in the adjudication of cases not only public-legal means of defense, but also private-legal ones can and should be used.
Keywords: genome, genomic research, genetic research, genomic information, genetic information, human rights, public law, private law, legal regime
Tishchenko V. V.
Some Questions about the Tax Benefits for Organizations that Invest in Genomic Research
The role of the tax system in stimulating investment activity is examined in the paper. Postnonclassical scientific rationality requires huge financial expenditures from researchers to make scientific discoveries. The society should benefit from financial investment in relevant research.
The article emphasizes the role of the tax system as a stimulus for scientific progress. The author focuses on finding a balance between the budgetary system of the Russian Federation and tax benefits for companies investing in genetic research. Attention is drawn to the instruction of the President of the Russian Federation on amendments to fiscal legislation providing for the possibility of including technological partners of the Federal Scientific and Technical Program for the Development of Genetic Technologies for 2019–2027 in the cost structure accounted for determination of the tax base for corporate income tax and the amount of investments for the implementation of this Program. The author concludes that there is a need for an integrated approach to the provision of tax benefits to companies investing in genetic research.
Keywords: genetic research, corporate income tax, tax benefits, tax system, legal regulation
CONSTITUTIONAL LAW
Kuznetsova S. S.
The Right to Anonymity on the Internet: Current Issues of Implementation and Protection
The rapid development of digital technologies necessitates legal regulation of new forms of legal relations, improvement of legislation in the field of ensuring the implementation and protection of human rights, as well as the establishment of legal restrictions in order to ensure security in the Internet space and to protect national interests. Anonymity, as a natural phenomenon in the digital space, has not yet received the necessary scientific and legal assessment, and therefore is subject to only selective and often inconsistent legal regulation.
The aim of the research is the formation of the concept of anonymity as a separate right and its delimitation from other related rights. Using the comparative legal method and analysis, we assessed the constitutional legislation and practice of various foreign countries in the field of anonymity, using the modeling method we formulated the concept of the right to anonymity, including identifying such powers as pseudonymization, the choice of persons to whom the subject of law discloses his identity, the ability to demand non-disclosure of information about your identity to third parties. It is concluded that there are prerequisites for the recognition of the right to anonymity, however, for now there is a lack of mechanisms for legal protection of anonymity, which makes its implementation impossible.
Keywords: right to anonymity, Internet, right to protect personal data, anonymization, exercise of the right
Nechkin A. V.
The Procedure of Election and Early Termination of Powers of Heads of States in the Commonwealth of Independent States in the Light of the Latest Constitutional Reforms
Using the comparative legal research method, the author examines the procedures for the election and early termination of powers of the presidents of the CIS countries. Special attention is paid to the impeachment procedure.
The following conclusions are made. Firstly, in a democratic state, which absolutely all the CIS countries have chosen as their ideal, one person should not be able to stay in the position of head of state for more than a fixed deadline known to the voter in advance, including in a situation of possible re-election. Secondly, the constitution should present a complete list of qualifications that a candidate for the presidency must comply with. Thirdly, only political parties should have the right to nominate candidates for the presidency, which will bring a certain order to the immense sphere of activity of non-profit organizations. Also, in the framework of self-nomination, a filter is absolutely necessary, the most democratic one is collection of signatures of a certain number of voters, which can be supplemented, but not replaced by an oligarchic pledge. Fourth, the procedure for the early termination of powers of the head of state should be regulated in detail if it is impossible to fulfill his duties for health reasons or other reasons, as well as a workable procedure for impeachment, especially if the head of state has a large amount of power in the functional sphere of the executive power.
In addition, according to the results of the study, the author proposes amendments to Russian legislation.
Keywords: Commonwealth of Independent States, CIS countries, president, head of state, impeachment, elections
Golovkova A. Yu.
Execution of Court Decisions Taken by the Bodies Exercising Normative Control within the Citizens’ Rights Protection Mechanism
In Russia, the rights and freedoms of citizens determine the essence, meaning and implementation of laws, which are the result of the rule-making function of public authorities. However, even the potential case for a «rule-making mistake» raises the issues related to the availability of effective ways to eliminate such mistakes. In the Russian Federation, the mechanisms of the normative control taken by the courts are regarded as effective ways to protect the rights of citizens from «low-quality» legal acts and to eliminate the consequences of its implementation. The most important indicators of their effectiveness are the quality and timely execution of such court decisions. At the same time, citizens face problems caused by the «imperfection» of both legislation and law enforcement within the process of executing court decisions itself.
The aim of the article is to analyze modern legislation on the ways of executing decisions of judicial bodies exercising normative control, the legal rulings of the highest judicial bodies, identifying problematic issues faced by citizens, as well as developing proposals aimed at improving legislation in this sphere. In particular, the article analyzes the rule-making and law enforcement methods of executing decisions of the judicial bodies, exercising normative control in the Russian Federation. The correlations between such bodies that affect the effectiveness of protecting the rights of citizens are revealed. The foreign practice of solving certain issues of the execution of court decisions is analyzed. In conclusion, the necessity of prompt intervention of the legislator in the regulation of the mechanism of execution of court decisions of the bodies exercising normative control is justified.
Keywords: execution of court decisions, normative control, constitutional control bodies in the Russian Federation, rights and freedoms, rule of law
THEORY OF STATE AND LAW
Ponomareva E. V.
Law as a Value in Modern Society
The article explores the philosophical understanding of value and its impact on the formation of ideas about the social value of law and the legal values. The process of revaluation of values, begun by F. Nietzsche, then the total deconstruction and denial of values, continued in postmodern philosophy, and then the reconstruction represented by metamodernism, is shown. It is noted that the debunking of values as such within the framework of their philosophical understanding affects the social and professional consciousness of the researcher, and contributed to the development of normativism, analytical jurisprudence and the post-non-classical theory of law where law is not understood as the greatest social value.
The author suggested possible evidence of the value of law in modern society, based on its objective features; thanks to this, higher ideals receive an indisputable opportunity for implementation, transferring them from the field of feelings and emotions to the field of social relations. The article also shows the mechanism for translating social values into compulsory legal requirements through appropriate tools – legal principles.
Keywords: social value, value, formal certainty of law, legal principles
ENVIRONMENTAL LAW
Kruglov V. V., Pel’vitskaya E. P.
On the Relationship between Land and Water Legislation in the Water Fund Land Management
The article deals with the issues of legal regulation of the turnover of land plots with surface water bodies located within their borders on the basis of the modern water and land legislation. The analysis of judicial practice allowed to identify the most controversial issues of attribution of a surface water body to a pond or a watered quarry on the one hand, or to a reservoir, on the other hand, on the basis of isolation from the other water bodies, which ultimately affects the legal regime of the land plot under such objects. In addition, the restoration of the Russian Federation’s ownership of land plots with surface water bodies located on them is also aimed at ensuring the interests of citizens to use public water bodies and their right to a favorable environment.
The authors propose improving land legislation in terms of assigning land plots to a certain category of land based on the intended purpose and permitted use. These changes are aimed at improving the efficiency of protection, use and turnover of land plots within the boundaries of which there are surface water bodies.
Keywords: land plot, surface water object, land category, purpose of land plot, water fund lands
Karpukhin M. Yu.
Criminal Law Protection of Objects of the Animal World
Amendments to the Constitution of the Russian Federation adopted in July 2020 regulate the responsible attitude of the population to animals, the same is established in the Federal laws of April 24, 1995 № 52-FZ «On the Animal World» and of December 27, 2018 № 498-FZ «On Responsible Treatment of Animals and on Amendments to Certain Legislative Acts of the Russian Federation», etc.
In the article, the concepts of the animal world and objects of the animal world are studied.
The correlation of the concepts of animals in general and objects of the animal world as a whole and part, respectively, is analyzed. The legal status of objects of the animal world is studied from the point of view of the civil legislation of the Russian Federation, according to which all animals, despite their animativeness, are equated to things. The author analyzes the criminal law protection of animal world objects in the Russian Federation in two aspects. First, an animal (including an object of the animal world) that is equal in status to a thing can be the subject of crimes as a thing (for example, being stolen). Secondly, according to the Criminal Code of the Russian Federation, the object in the form of a representative of the animal world object is a mandatory feature of the optional side of the object of crime.A conclusion is made that the life and health of animals in the current criminal law of Russia are not the main (direct) object of criminal law protection, but often act as an additional object, which, in the author’s opinion, contradicts the constitutional norms of the Russian Federation and requires adjustments to criminal legislation.
Keywords: animal world, protection of animal objects, legal status of animals, animal cruelty, environmental crimes
LEGAL EDUCATION
Osintsev D. V., Barakovskyh S. A., Sidorov S. G.
Administrative and Legal Means of Service Deontology in Educational Organizations of the Ministry of Internal Affairs of Russia
Deontological norms and codes of conduct for police officers are the most important social and ethical institution, since they set moral guidelines in official practice when performing professional tasks, especially in non-standard or extreme situations. Due to deontological norms, the behavior of members of the professional law enforcement community is brought into due compliance with accepted patterns, norms and standards. The study of the administrative responsibility of a police officer should take into account his professional status and the stage of his professional training for the performance of his official duties.
The issue of legal consequences of violation of the Oath by a law enforcement officer requires a separate study. Such an act is an absolute misdemeanor of an employee and a violation of official discipline. Integrated educational activities, in particular the adoption of the Oath in a solemn ceremony following the code of honor of the student (listener) of the University of the MIA of Russia, development of its distinctions (for example, «Alma Mater – Loyalty») create the main moral and legal values of service activities, form the moral basis of the exercise of their duties to ensure public security, law and order for the benefit of Russia.
Keywords: professional education, upbringing, legal deontology, administrative and legal features of the implementation of the practice of service deontology
THE VIEW OF YOUNG LAWYERS
Safaraliev F. M. o.
Problems of Law Enforcement in the Execution of Individual Business Contracts
In recent years, researchers have significantly increased their interest in studying the problems of legal regulation of business contracts. The legal regulation of relations in the field of business contracts is not perfect, as evidenced by a large number of court disputes and the lack of uniformity in judicial practice when considering similar cases. The purpose of the research is to analyze the essence and features of business contracts in Russian civil law, as well as to identify problems of legal regulation and formulate proposals for improving legislation. The methodological basis of the work is a dialectical approach. The main specific scientific methods are logical-legal, comparative-legal, formal-legal, system-structural, statistical.
The author studies law enforcement in the execution of sales contracts, commission agreements, agency contracts. Some problems in this area are highlighted. In particular, when concluding a sales contract, the rights of buyers are violated in terms of failure to provide them with information about the manufacturer (seller) of the goods and about the goods themselves; the issue of the moment of conclusion of individual sales agreements and the emergence of the buyer’s right of ownership to the goods, etc., has not been resolved. It is noted that the Civil Code of the Russian Federation does not establish special rules governing the form of the agency contract, nothing is said about whether it is necessary to draw up acts of acceptance and transfer in confirmation of the execution of such a contract, etc.
Keywords: Civil Code of the Russian Federation, corporate law, sales contract, intermediary agreement, contract of assignment, consumer
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Russian Law: Education, Practice, Research. 2020. № 4
No. 4 (2020)TOPIC OF THE ISSUE: LABOR LAW AND SOCIAL SECUTIRY LAW
Kurennoj A. M.
Some Current Issues of Labor Relations Legal Regulation
The article examines the most important problems of labor relations from the point of view of the author.
First of all, attention is drawn to instability of legislation, in particular, introduction of numerous changes to the Labor Code of the Russian Federation. The subjects of legal relations are inclined to consider the Labor Code an «instruction», and the norms of the General Part often remain outside the law enforcement. Another problem is the absence of a norm regulating application of analogical reasoning in labor law. Another pressing issue is that Russian employers often ignore ethical principles, taking into account economic (primarily financial) interests to the detriment of the interests of employees.
The article analyzes the features of regulation in the Labor Code of the Russian Federation of the minimum wage, the difference between skilled and unskilled labor, the unwillingness of employers to include «northern allowances» in the wages of workers who receive the minimum wage. It is emphasized that the current situation testifies to non-observance of the principle of equal rights and opportunities for workers.
It is also studied which relations connected with the use of hired labor are included in the subject of the branch of labor law, taking into account the emergence of new forms of organization of the people’s work, especially against the backdrop of the coronavirus pandemic. The author believes that instead of introducing new changes to the Labor Code, it would be advisable to rely on the norm enshrined in it. According to the latter, regulation of labor relations should be carried out in a contract.
Keywords: hired labor, labor relations, legal regulation in the field of labor, principles of labor law, minimum wage, distance labor
Golovina S. Yu., Ramankulov K. S., Tomashevski K. L., Hasenov M. H.
Labour Law and Social Security in the EAEU States During the COVID-19 Pandemic: Experience of Belarus, Kazakhstan, Kyrgyzstan and Russia
The spread of the new coronavirus infection (COVID-19) has affected almost all areas of human activity, but one of the most vulnerable areas covers employment relations. Measures taken to prevent the spread of a dangerous infection entailed the suspension of many organizations, which caused negative consequences such as rising unemployment and falling living standards. Employers faced the need to «reformat» employment relations and organize labor processes in such a way as to ensure social isolation of employees, in particular, by transfer to remote work, despite the fact that this method of labor organization is not regulated in labor legislation. The EAEU member states challenged the tasks of strengthening social support for citizens, revising the system of measures for state benefits and payments.
Using the comparative method, the authors analyze specific legislative measures taken in the EAEU member states in order to prevent the spread of the pandemic and mitigate its consequences, reveal the problems of law enforcement due to defects in labor and social legislation. The article provides examples of adaptation of labor and social security legislation to the relations arising within the pandemic.
The authors conclude that COVID-19 has formulated a public request for the search for new legal mechanisms to enhance the labor mobility of the population and, to a certain extent, the transformation of modern employment relations.
Keywords: coronavirus infection (COVID-19), self-isolation, non-working days, remote work and telework, labor legislation of the EAEU countries, social aid
Ivanchina Yu. V.
Self-Identity of Labor Law in the Russian Legal System
In order to objectify forming of the branches of law it is necessary to use a systematic approach and theory of needs. To justify the existence of a branch of law as a system we should consider it in several aspects:
1) a system-component aspect, allowing to identify all necessary components – system-forming elements of the branch of the law, which should include its subject, method, functions and principles. The subject and functions constitute the core of the branch – the main system-forming elements. Method and principles are secondary;
2) a system-functional aspect, allowing to conclude that the functions, determined by the subject of the branch, that reflect the needs of the system itself, determining the directions of its functioning;
3) a system-structural aspect, allowing to identify the internal organization of the system. The structure implies stability of the system, ensured by the presence of static and dynamic elements in it. The functions are in dialectical unity with the subject of the branch and represent the static elements; the significant needs underlying them remain unchanged. The method and principles, depending on socio-economic, political and other factors, can be transformed;
4) a system-integrative aspect. A system-forming factor in the branch (i. e. the socially significant needs of its participants) ensures integration of all the elements of the system, their interaction within the structure, as well as the functioning of the system as a whole.
Consideration of labor law within these aspects shows that its identity is preserved.
Keywords: branch of law, labor law, backbone elements, subject, method, principles, functions, socially significant needs
Demidov N. V.
Informal Labor Relations as a Regularity of the Employment Development in Russia
The manifestations of informal labor relations in the Russian Empire, the USSR and the Russian Federation are compared. The author formulates the reasons for the historically stable nature of informal labor at all stages of the development of wage labor. Among the main reasons the following were named: the actual rapprochement between the branches of civil and labor law, legal illiteracy of the population, the prevalence of the benefits of non-compliance with the law over losses in the case of applying legal liability measures, employers’ desire to optimize production activities, the specifics of the capitalist market structure, the weakness of institutions protecting labor rights.
The author states, that it is impossible to eradicate the informal labor relations completely. The phenomenon can be undesirable and destructive from the point of view of the interests of the state. However, this does not negate its nature as an implicit element of the country’s social life. In conditions of alienation of a person from the state, the expansion of illegal labor is inevitable.
Keywords: history of labor law, informal labor relations, hidden employment, implementation of labor law, violation of labor law, anthropology of labor law
Lushnikov A. M.
Social Security Issues: An Interdisciplinary Approach
While discussing the interdisciplinary approach to the study of social insurance problems the author pays particular attention to the interaction of law and economy in a historical context and takes into account the data of sociology, political science, social psychology, etc. The types of social insurance are considered in accordance with the German model: industrial accident insurance, health insurance, pension insurance, medical insurance, unemployment insurance. It is concluded that social insurance needs comprehensive interdisciplinary research, especially since in the past, such research was a general rule, but at present it is only being revived. The author states that a one-sided economic approach to social insurance is fraught with adverse social consequences. At the same time, ignoring the economic justification of the social insurance system makes it unrealistic and does not allow the use of the corresponding mechanism of legal regulation. The article considers the views on social insurance of such prominent economists as L. Mises, F. A. Hayek, H. Huerta de Soto.
In the author’s opinion, the state system of compulsory social insurance passed the test of time, under which deductions are made mainly by emploers, but with the participation of workers and the state, and the size of payments is differentiated and depends on the size of earnings, the size of insurance payments, insurance experience, the nature of labor. Such a system can be supplemented by internal and personal insurance. The position on the redistributive nature of social insurance and its compliance with the principles of justice, equality, freedom and humanism is defended.
Keywords: social insurance, social security, interdisciplinary approach, interaction of law and economy, demographic aspects of social insurance
Istomina Ye. A.
Protection from New Social Risks: Issues of Interdisciplinary Research
Increased attention to risks in all areas leads to the fact that this category becomes a permanent object of scientific research. Social risk is one of the fundamental categories of social security law, which is recognized by almost all specialists in this field. The article analyzes the interaction of various social sciences in determining new social risks. The author proceeds from an understanding of a social risk as a phenomenon developing in dynamics. The first two stages of a social risk – its factors and causes – stem from the changes in economic, political, social life, development of technologies and their impact on people. The third stage – adverse effects of a social risk – is more stable. Discussions around the recognition of new social risks and protection against them are actively conducted in science, and their list may vary in different countries and regions. In many countries, the issue of protection against social risks caused by the transformation of the labor market is currently being discussed (job instability, which leads to a shift in emphasis in the combination of labor – family responsibilities, development of new activities that present new requirements for the qualifications of workers).
The article substantiates the conclusion that the recognition of new social risks, protection against them, including by means of social security law, is preceded by the work of specialists in the field of sociology, economics, psychology, political science, as well as jurisprudence. Based on a comprehensive interdisciplinary scientific interaction, a new social risk should be identified and investigated properly.
Keywords: causes and factors of social risks, new social risks, social security law, labor and family responsibilities, social dependence
Fedorova M. Yu.
Social Obligations in the Legal Science, Law and the Judicial Practice of the Constitutional Court of the Russian Federation
The modern social and political practice uses the term «social obligation» to designate the responsibility of the state and other subjects (for instance, employers) to provide social security benefits (assistance, social safeguards) to the individuals. This term is used in the statutes, acts of social partnership, and acts of the Constitutional Court of the Russian Federation. This makes the issue of defining the term and standardizing its utilization relevant. Consequently, we may complete the objective of improving the conceptual system of Russian legal science and social security laws. Identifying the legal nature and the content of social obligations may contribute to the extension of social guarantees.
Applying the variety of research methods (analysis, synthesis, systematic and formal methods, etc.), the author formulates the basic characteristics of social obligations in its correlation with contractual and public obligations. The legal nature of the social obligation is identified through its relevancy to social risk acceptance. The social risk is accepted by establishing (either in the statute or contract) the obligation to compensate negative consequences of social risk materialization by providing social security. The article offers the classification of social obligations depending on the status of the obligation bearer, the legal authority and the object.
The author points out, that the Constitutional Court of the Russian Federation contributed immensely to forming of the social obligations concept. The Court has developed universal criteria used to assess the permissibility of changing and terminating the social obligations of the state. The state has recognized the named criteria in law while providing the reforms of social security benefits. Later these requirements were established into social security laws in Crimea and Sevastopol.
The understanding of social obligations in its’ correlation with social risks might be a promising area of research in social security law. In the context of the rulings of the Constitutional Court of the Russian Federation, this approach contributes to improvement of social security law and its enforcement practice.
Keywords: social obligations, social risks, social security, parties to social obligations, classification of social obligations, the Constitutional Court of the Russian Federation
Balitskiy K. S.
Sectoral Affiliation of a Targeted Learning Agreement: Theoretical and Judicial Issues
The study of the sectoral nature of the target learning agreement is relevant due to the current uncertainty in the legal regulation of such an agreement, the need to determine the period for applying to the court with a statement of claim for recovery of student expenses, as well as recently formulated position of the Supreme Court of the Russian Federation on this issue. The purpose of this article is to study target learning agreement and apprenticeship contracts, to identify similarities between them and their distinctive features. The author uses formal logical and comparative legal methods, system analysis and others.
The legal acts governing the conclusion, amendment, termination and execution of an apprenticeship contract, a targeted training agreement, courts decisions on the recovery of money spent on their training from students were analyzed (it was established that the position on the identity of these agreements prevails in judicial practice). A conclusion was drawn that it is impossible to equate them and recognize one of them as another. The author points out that a targeted training agreement is a structure located at the intersection of civil and administrative law.
Keywords: target training agreement, apprenticeship contract, subject of labor law, training, recovery of training costs, judicial practice
Okulova P. A., Tolstykh O. A.
The Issues of Providing Additional Vocational Education of Pedagogical Workers
The aim of the article is to highlight the key problems of providing additional professional education and to identify possible solutions to them based on the laws of the Russian Federation. Analysis of the post-graduation services market allowed the authors to raise a number of questions related to regulation of the rapidly developing market of educational services, the question of acceptabi-lity of the use of distance education technologies for further training of employees, where not only updating knowledge is required, but also mastering certain skills and abilities (including manual ones). The authors also highlight the problem of regulating the frequency of professional development and the resulting mutual obligations of the employee and the employer.
Particular attention is paid to the problem of eliminating periods of advanced training in the calculation of general and special pedagogical work experience. According to the authors, there is a need for legislative consolidation of the norm on including these periods on the basis of extensive judicial practice as a source of law.
Keywords: legal educational framework, labor relations, additional vocational education of employees, additional professional education, experience rate, distant learning technologies
Salikova N. M., Batukhtina E. M.
Electronic Document as a Proof: Issues of Application while Considering the Labor Disputes
Some issues of electronic document circulation for labor law relations are considered in the article, as well as certain options of producing electronic document in court available to the labor relations participants. New coronavirus infection (Covid-19) pandemic reality and the countermeasures of the government had extremely increased the significance of digital technologies’ legal regulation.
Special relevance of the issue under research is caused by enactment on the 24th April 2020 of the Federal Law providing the basis for the experiment of electronic documents concerning work implementation. The law places an obligation upon the employer to provide electronic interaction with indispensible observance of the rights guaranteed for the employees (ex. during local normative acts’ revision, information system development, etc.). Application of the electronic documents in general and electronic documents created within employer’s system of electronic documents circulation in particular as an evidence in court is of particular interest. An analysis of the judicial practice concerning labor disputes in which specifically electronic documents were taken into consideration as evidence while resolving the case is provided in the article.
Keywords: electronic documents, individual labor disputes, averment, circumstance in proof, judicial practice
Leskina E. I.
Artificial Intelligence and Labor
The rapid development of artificial intelligence raises many questions regarding its legal status, capabilities and ethical limitations. All this is especially relevant for the world of employment, because the society expresses its deepest fears in connection with the potential unemployment due to introduction of artificial intelligence in life. The purpose of the paper is to identify the place of artificial intelligence in labor market and possible areas of its application, to consider the main problems associated with the regulation of the labor market, as well as the endowment of the «smart» robots as a subject of law. The methods used are analysis and synthesis, deduction and induction, comparative legal, historical methods.
The possible areas of application of artificial intelligence are very diverse and expand every year. In general, digital technologies and especially artificial intelligence will contribute to the automation of almost all processes, improving the quality of the services provided, goods manufactured and work performed.
The author considers the legal and scientific definition of artificial intelligence, the distinction of this concept with related ones, the division into «weak» and «strong» artificial intelligence, the position of the European Parliament on endowing «smart» robots with the status of an electronic personality, the position of Russian scientists, the possibility of endowing artificial intelligence, «smart» robots with the status of subjects of labor law, as well as the problem of potential unemployment caused by the widespread use of artificial intelligence.
Keywords: artificial intelligence, robotics, digitalization, labor relations, unemployment, tortability
Serova A. V., Serov S. I.
The Issues of the Legal Status of the Self-Employed in the Russian Federation and the Republic of Kazakhstan: Tax-Legal and Socio-Labor Law Research
The regulation of the legal status of the self-employed in Russia and Kazakhstan is studied. The research is based on an interdisciplinary approach and was conducted using the formal legal method and the method of comparative law. The article considers the concept of self-employed in the broad and narrow sense, its generic and specific characteristics, an attempt is made to classify the self-employed, the legislative specifics of their legal status is determined, including the special tax regimes «Professional income tax» and «Single aggregate payment», the problems of social and labor-legal status of the self-employed are revealed.
It has been established that both in Russia and Kazakhstan there is no common definition of the term «self-employed» in all the branches of legislation, its features are ambiguous, and as a result, it is very difficult to conduct a normative classification of the self-employed. The disordered legal regulation of the legal status of the self-employed causes unresolved problems related to their social security, labor protection, working time and rest time, wages, collective rights and other issues of a social and labor nature.
Keywords: self-employed, independent employee, scope of the labor law, non-standard forms of employment, quality of working life, special tax regime
Zaitceva L. V., Kursova O. A.
Legal Regulation of Drivers Labor in the Risk Management System in the Field of Road Safety
The development of a risk management system in the field of road safety is intended to increase safety on the roads of Russia. Like any system, it involves an integrated approach to the development of the control methods for all elements. It seems that when developing new concepts in this area, insufficient attention is paid to the issue of the balance and interdependence of administrative and labor law regulation of the activities of motor vehicle drivers. Effective legal regulation of driver labor is an integral element of ensuring road safety. Its imbalance with the norms of administrative law, gaps and internal contradictions increase the risks for road safety.
The main methods used to study current legal conditions were a method of expert assessments and comparative legal analysis. The necessity of an integrated approach to achieve optimal legal impact on labor relations with drivers of vehicles is substantiated. The features of a risk-oriented approach to legal regulation were highlighted. The reflection of the idea of minimizing risks in the current norms of labor law was explored. The general rules for the professional selection of drivers, the standardization of professional requirements for them, and flaws that need to be remedied were identified. The problems of inconsistent legal regulation of working hours and rest time of drivers were described.
Keywords: features of drivers labor regulation, working time and rest time, professional training, labor protection, road safety, risk management, risk-oriented approach to legal regulation
Popova D. G., Kichigin S. V.
On the Problem of the Application of the Professional Standard «Athlete»
The present work is devoted to the study of the problem of applying the qualification requirements of the professional standard «Athlete» to minors employed in sports organizations. The authors have revealed the discrepancy between the requirements of the professional standard and the special norms of the Labor Code of the Russian Federation, regulating the features of the work of athletes.
By virtue of the direct instructions of the law, the qualification requirements of the professional standard «Athlete» are mandatory for persons employed in the field of youth sports, including minors. The restrictions related to work in this area, namely, the prohibition on the admission to work in this field of persons who have or had a criminal record or who have been prosecuted (with the exception of persons whose criminal prosecution has been terminated for rehabilitative reasons), have caused not only the need for the applicant to provide a certificate of lack of a criminal record and (or) the fact of criminal prosecution, but also the mandatory conformity of the job title in accordance with the current professional standards or qualification handbooks, as well as the qualification requirements to the candidates in the relevant professional standards or qualification reference books.
The qualification requirements of the professional standard «Athlete» are objectively impracticable for some minor athletes. The controversial requirements of the professional standard in terms of education for the candidate for the position are not caused by real need. To solve the identified problem, the authors propose to review the qualification requirements for education in the abovementioned professional standard.
Keywords: professional standard, labor law, labor legislation, employee qualifications, business qualifications, qualification requirements
Voitkovskaya I. V.
«The Golden Parachutes» in the USA and Russia:How It Works?
The article provides an overview of the development of legislation, science and practice of the United States of America on the establishment and payment of compensation to CEOs in case of early termination of employment relations in connection with the takeover of a corporation or the decision of the owner – golden parachutes. The development of legislation and practice of payment of similar compensation in the Russian Federation is analyzed. Using a comparative legal method, the author concludes that the labor legislation of the Russian Federation does not provide a concise and complete definition of compensation for managers and other managers, nor guidelines for distinguishing such compensation and severance payments. In addition, Russian labor legislation does not set a legal framework for establishing payments to dismissed managers and other employees, which creates problems in law enforcement.
Having studied the USA practice and the practice of the Constitutional Court of the Russian Federation the author points out that severance payments are distinct from executive compensation and for the purposes and on the grounds of payments and their size explains the special features of golden parachutes, features a career and the status of the leader, his reputation and peculiarities of the instability of his employment, taking into account the right of the owner to dismiss without cause.
Keywords: golden parachutes, CEOs compensations, severance payments, termination of employment contract, employment contract
Vedeshkina T. P.
Religious Organisations Internal Rules as an Unconventional Source of Labor Law
With the development of labor law relations, new labor law sources emerge which are not considered as traditional ones but are widely applied in labor and associated relations. The author points out that neither legislation nor doctrine provides a unified definition of the term «religious organizations internal rules», while such rules influence on nearly each labor law institute. Moreover, the author examines the religious organizations internal rules nature, practice of their implementation and explains why these rules cannot be considered as a labor law source mentioned in the Labor Code of the Russian Federation.
A conclusion is drawn that religious organizations internal rules have a significant impact on the dynamics of labor relations in such organizations and that is why such rules should be regarded as labor law sources. However, as religious organizations internal rules are not established in the Article 5 of the Labor Code of the Russian Federation, nowadays they can be considered only as a specific and unconventional labor law source.
Keywords: religious organization, religious organizations internal rules, employee, employer, labor law sources, unconventional labor law source
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Russian Law: Education, Practice, Research. 2020. № 3
No. 3 (2020)Brodowski D., Jahn M.
Digital Evidence in German Criminal Proceedings at the Stages of Preliminary Investigation, Substantive Review and Revision
The article is a translation from German of a comprehensive study of Matthias Jan and Dominik Brodowski. The translation is accompanied by a scientific and practical adaptation commentary.
The essence of the concepts of digital traces and digital evidence is revealed, and the classification of digital traces is given. The authors analyze the main means of collecting digital evidence during preliminary investigation, as well as the rules for presenting, researching and evaluating evidence at the stages of the German criminal process. It is especially difficult to obtain data during an online search in connection with the operation of the communication secrecy regime and the threat of violation of the sovereignty of other states.
Attention is drawn to the fact that when verifying the verdict, the higher court cannot identify and investigate the uncertainty and contradictions in the conclusions of the court based on the assessment of digital evidence: the data carrier on which the relevant information related to the content of the verdict is stored remains out of sight of the court of cassation. In this regard, it is proposed to expand the powers of the court of cassation to investigate and evaluate digital evidence.
Keywords: digital trace, digital evidence, online search, crime investigation, criminal procee-dings
Puchkov V. O.
Is Smart Contract a Contract? (To the Issue of the Digital Transformation of the Doctrine of Civil Law)
The study explores the smart contract phenomenon in the view of civil law doctrine and dogmatics. The purpose of the article is to show, how the civil law doctrineʼs methodological defects (i. e. the basic conceptsʼ uncertainty) lead to the problems of the smart contract legal conceptuali-zation.
Having studied the philosophical (hermeneutics, dialectics), metascientific (system approach, classical logics) and special legal means of cognitions, the author comes to conclusion that the problems of smart contract conceptualization are methodologically driven by the civil law scienceʼ categorical uncertainty. The Russian civil law doctrine would be able to formulate the heuristically based smart contract construction only after clarifying the basic civil law categories (firstly, the contract, the obligation, the securing of the obligation performance). The author concludes that a smart contract can be defined as an electronic (digital) form of a civil law contract, as well as a technical way of performing an obligation, the object of which is a particular digital asset (virtual object).
Keywords: smart contract, legal doctrine, methodology, digital technologies, contract, obligation, security for the obligation performance
Neznamov Al. V., Neznamov An. V.
Using Artificial Intelligence at Legal Proceedings: First Experiences and First Conclusions
The domestic and foreign doctrine concepts about the expected advantages, consequences and risks of the use of artificial intelligence systems in legal proceedings are considered. The article analyzes the first experience of the use of such systems in foreign countries (the investigation against Rolls-Royce, the N. Aletrasʼs group experiment on predicting the outcome of cases in the ECHR, the case of E. Lumis, USA).
It is concluded that the expected effects of the use of AI in legal proceedings were largely justified. In most of the cases AI systems have a positive impact on the quantitative characteristics of legal proceedings, while the possibility of directly improving the qualitative characteristics of justice in this way is still questionable. In addition, it is pointed out that the use of AI in legal proceedings is still limited to rare experiments, it is still impossible to evaluate how fair the risks expressed in science are. At the same time, some of these risks (especially technical, long-termed social and economic consequences) are definitely not without reason.
Keywords: digital technologies, artificial intelligence, legal proceedings, automated evidence processing, predictive justice, quality of justice
Naumov V. B., Butrimovich Ya. V., Kotov A. A.
Ensuring the Quality of Law Regulation of Experimental Legal Regimes
We live in the era of changes brought by digitalization, its impact is only heightened by the current pandemic. In the new realities after the crisis, the world will continue expanding the digital interaction though its regulation is already lagging behind the current pace and needs of development. In view of the significant changes in social relations, the legal system must adequately ensure the conditions for the development and application of new technologies, while safeguarding the rights of citizens.
In order not to violate the principle of legal certainty through the adoption of laws that are not effective or responsive to technical progress needs and demands, the legal order should provide suitable tools for the «crystallization» of sources of law. Experimental legal regime is one of such instruments. In the article, mechanisms of functioning and requirements for experimental legal regime have been examined in the context of the main type of regime, namely the «regulatory sandbox», in the light of international experience and analysis of legislation in this area being prepared and / or already adopted in Russia.
The author also analyzes the pros and cons of the possible introduction of the construction of a «regulatory sandbox», on the basis of which recommendations for the legislator were created, suggesting that this legal construction is only a useful addition, but not the main incentive for development. It should be subject to enhanced requirements connected with the certainty of the rules of operation and equal access to it for its participants.
Keywords: experimental legal regimes, experiment, regulatory sandboxes, sources of law, development of statutory law, artificial intelligence, personal data, transfer of data, identification
Bezrukov A. V., Savos’kin A. V., Meshcheryagina V. A.
Constitutional (Statutory) Legislation of the Subjects of the Russian Federation on the Citizens’ Right to Appeal (Condition and Development)
The constitutional right to appeal is the subjective right of the petitioner. It could be additionally regulated by the acts of the subjects of the Russian Federation. At the same time, after the adoption of the Federal Law «On the Procedure for Considering Appeals of Citizens of the Russian Federation», most subjects of the Russian Federation repealed their laws. Only in recent years there has been a tendency to expand regional legislation on citizensʼ appeals. This trend is very relevant since in the Federal law there remain gaps and uncertainty regarding some legal categories.
A systematic analysis of the constitutional legislation of the Russian Federation and the constitutional (statutory) legislation of the subjects of the Russian Federation is conducted, the limits of competence of regional parliaments are established, the features of acts of subjects of the Russian Federation on petitions of citizens are considered; the features of securing additional guarantees
of constitutional right to appeal in the constitutions and charters of the subjects of the Russian Federation are investigated; the limits of the laws of the subjects of the Russian Federation on
additional guarantees of the right of citizens to appeal are determined; the regulation of the subjective composition of legal relations for the implementation of the relevant subjective law is studied; the place of the by-laws of the authorities of subjects of the Russian Federation in the mechanism
for the exercise of the constitutional right of citizensʼ appeals is determined.Conclusions are formulated on the usefulness of the legislation of certain subjects of the Russian Federation which establish additional guarantees for the exercise of citizensʼ right to appeal.
Keywords: constitution of the Russian Federation, constitutional legislation of Russia, constitutional (charter) legislation of the subjects of the Russian Federation, law, constitutional rights and freedoms of citizens, right to appeal, constitutional rule of law
Selkova A. A.
Applying the Jura Novit Curia Principle in Arbitration
The author notes a pronounced tendency to challenge arbitral awards precisely on the basis of the incorrect application of the jura novit curia principle in determining the content of the law chosen by the parties. This poses a problem with regard to arbitrators exceeding their powers, which is increasingly encountered by arbitration institutions around the world. The author explores the issue of how arbitration should apply the jura novit curia principle, and gives examples from the practice of foreign arbitration institutions.
Considerable attention is paid to the analysis of understanding the jura novit curia principle in the law of various jurisdictions. Two possible options for interpreting the jura novit curia are highlighted. In the first sense, this concept assumes that the parties do not need to prove the content of the law they have chosen. According to the second one, the court is not limited to the legal qualifications and arguments that the parties cited during the proceedings.
The author concludes that the arbitrators have broad powers to apply certain legal norms that the parties did not refer to, re-qualify facts that the parties did not refer to, and interpret the courtʼs positions reflected in earlier arbitral awards. However, this should in no case violate the adversarial nature of the proceedings. In this regard, it is highly important to provide the parties with the opportunity to be heard before the court.
Keywords: arbitration, jura novit curia principle, panel of arbitrators, legal qualifications, applicable law
Karepanov N. V.
Concept of Traces in the Modern Science
The article sets out provisions on formation of knowledge about traces, philosophical and terminological foundations, concepts, classification of traces. Traces, in the authorʼs opinion, include objects of reality (material bodies and physical fields), altered phenomena or events that occurred in result of motion, processes and actions. It is impossible to consider the concept of traces without the use of philosophical theories and categories – «reflection», «being», «reality», «motion» and many others.
It is concluded that the understanding of traces in the narrow sense no longer satisfies the needs of either investigative practice or human life. Trasology as a study of only mechanical traces is losing its leading position. Objects that one cannot perceive with oneʼs senses are also traces. Such thoughts cause a necessity to develop a new approach to understanding and classifying traces
Keywords: traces, material bodies, physical fields, changes, reflections, phenomena, events, motion, physical processes, chemical processes, biological processes
Gaskarov I. F., Shishkina E. V.
Some Problems the Search for Minors Who Arbitrarily Left State Institutions
For the purposes of an effective search for minors, it is proposed to consider as synonyms the concepts of «missing», «disappeared without a trace», «absent» and to take immediate measures to search for these children in cases they are absent in places of their permanent or temporary stay, regardless of the nature of the initial information. The efficiency of the search depends on the information support of this activity, which includes all the information about the identity of the minor, the circumstances and reasons for his / her disappearance. Information about the individual should include not only socio-demographic, but also psychological and biological properties of the child. Special attention is to be given to information about his friends, relations, affections. Establishing the causes of absence involves the analysis of information on the timing of application, on the personal traits of the missing, and the circumstances preceding the disappearance.
Search versions are based on analysis of the entire set of information received at the screening stage of the application, including forms of deviant behavior, most often determine the choice
of mode of behavior of the child after the escape. The search direction may depend on the specifics of the area, its social characteristics, infrastructure and other regional features. In this regard, there is a need of the «social procurement» from the concerned public authorities at the regional level to current research of the problems associated with the unauthorized departures of minors from the state institutions. These problems have a complex nature, so the research should be done by legal scholars, psychologists, educators.To improve the efficiency of the search of minors who commit systematic escapes from social institutions, it is proposed to form data banks on these individuals, to simplify the investigation of cases, as well as to improve escapes prevention.
Keywords: minors, state educational institutions, unauthorized withdrawal, disappearance, missing, wanted, informational support, search versions
Penizev M. V.
Main Approaches to Understanding the Institute of Lawyers’ Monopoly in Russian and International Practice
The reform of the legal services market in Russia has passed the first stage and established a monopoly of persons with legal education on judicial representation. The next step may be the gradual transition and establishment of a lawyers’ monopoly. However, even today we do not have a final vision of the future system of the legal services market. Disputes between supporters and opponents of the reform do not directly concern the terminology used. A the same time, according to the author, the problems in forming a scientific and applied understanding of the essence of the reform, are caused by the fact that interdisciplinary terminology contradicts the ideas of monopoly among citizens and the final plans of the legislator.
The article studies the international experience of establishing lawyers’ monopoly in European countries based on analytical materials of the European Commission on the effectiveness of justice. The author analyzes the term «lawyers’ monopoly» from the point of view of jurisprudence and economics.
Keywords: advocate, advocacy, lawyers’ monopoly on legal representation, monopoly of lawyers, monopoly of the bar, reform of the legal profession, legal services market
Nasibullin R. A.
The Case of Professor A. M. Vinaver and the Dispositive Principle in the Soviet Civil Procedure
The tragic incident from the life of professor A. M. Vinaver at the Sverdlovsk Law Institute is described on the basis of archival materials and memoirs introduced into scientific researches for the first time. He was persecuted for incorrect, anti-Soviet coverage on the classification of lawsuits and the dispositive principle in Soviet civil proceedings at a lecture on August 19, 1946. Professor Vinaver was right in arguing that in the Soviet civil procedure the above-mentioned principle is narrower than in the bourgeois civil procedure. The issue of distinguishing reform lawsuits is controversial in the Soviet science of civil procedure.
The Academic Board of the Sverdlovsk Law Institute recognized the merits of A. M. Vinaver as an expert in the field of Roman law, but pointed out that due to pre-revolutionary education and upbringing, the professor does not know Marxist-Leninist methodology and is apolitical. As a result, A. M. Vinaver was excluded from teaching at the correspondence branch of the All-Union Extra-Mural Law Institute, but continued teaching at the Sverdlovsk Law Institute. The persecution could hasten his death on March 16, 1947.
Keywords: Vinaver, institute, professor, teacher, lawsuit, dispositivity
Kozachenko I. Ya., Sergeev D. N., Vasil’ev A. M.
Legal Reconciliation: Compromise or Concession? Overview of XVII International Research-to-Practice Conference Dedicated to the Memory of M. I. Kovalyov
The XVIIth International research-to-practice conference dedicated to the memory of the founder of the Ural scolar school of criminal law and criminology professor M. I. Kovalyov was held in Yekaterinburg on 13–14 February 2020. It united more than 1500 scientists and experts from 20 countries. During the conference, the discussion of the following questions took place: should the state abandon its monopoly on resolving disputes? What are the reasonable limits for conciliation procedure usage in public law branches? Should the state interfere in all «criminal – victim» relations?
Keywords: science of criminal law and criminology, criminal law, liability, reconciliation
Fedotova D. S.
Booking as an Element of Certain Civil Contracts
Booking is applied on many types of transport. However, its legal nature has not been revealed. Civil law experts propose mutually exclusive options for its qualification as a proprietary lease, prior request, shipping contract, fee-based service, preliminary agreement, etc.
The article proves that booking is not a contract, because it has no independent mandatory elements of a contract (subject, price, mutual rights and obligations, etc.). It cannot be considered a form of preliminary agreement for the same reason, and cannot be recognized as a service. The words «booking» and «reservation» do not have the same meaning in Russian language and are different concepts in the legal field.
The author concludes that booking is a secondary right. It has legal regulation and precedes a certain legal relationship. It represents a legal opportunity and cannot be violated by the counterparty. The right belongs only to the booking applicant. Booking is secured by limiting the carrier’s rights to act in relation to the property protected by booking.
Keywords: booking, reservation, passenger carriage contract, secondary right
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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
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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 FederationThe 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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