No. 6 (2021): Russian Law: Education, Practice, Research. 2021. № 6

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 19^th 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