No 6 (2016)
ANNIVERSARY OF KUTAFIN MOSCOW STATE LAW UNIVERSITY (MSAL)
11-18 465
Abstract
This article discusses the major milestones in the formation and development of the Department of Criminal Procedural at the Kutafin Moscow State Law University (MSAL) as one of the leading scientific and pedagogical teams in the sphere of criminal proceedings in the territory of Russia and the former Soviet Union. The paper analyses all scientific and other focus areas of the Department, considers the main monographic and educational publications of the Department members, etc. To sum up, the author concludes that the school of science and pedagogy that has been developed at the Department of Criminal Procedure of the Kutafin Moscow State Law University (MSAL) and that is founded on the brightest academic traditions and the combination of thorough theoretical knowledge and practical experience has the potential to carry out fundamental scientific research and training of highly qualified lawyers for modern Russia.
COVER ARTICLE «III MOSCOW LEGAL FORUM»
19-25 384
Abstract
The article provides an overview of the roundtable discussion on the theme "Prospects of development of undergraduate level as a higher legal education", held as part of III Moscow Legal Forum and the X International Scientific and Practical Conference "Kutafin Readings." The article reflects the main points of reports, highlights the main problems arising from the transition to the level education.
26-29 340
Abstract
The article provides an overview of the scientific symposium "Business and Law. German as a language of business communication. (Unternehmen und Recht. Deutsch als Fachsprache im Geschäftsverkehr)", held as part of III Moscow Legal Forum and the X International Scientific and Practical Conference "Kutafin Readings." This article provides information about the speakers and topics of their presentations.
30-33 476
Abstract
The article provides an overview of the round table discussion titled "Scientific knowledge, legislation and practice in the learning process on the constitutional and municipal law: problems of integration ", "Constitutionalization of branches of the Russian law: concept, methods, limits" and "Constitutional and legal support for energy sovereignty", held as part of III Moscow Legal Forum and the X International Scientific and Practical Conference "Kutafin Readings." This article provides information about the speakers and topics of their presentations.
34-39 377
Abstract
The survey provides for the main statements of the reports made by leading international law lawyers on April 8, 2016 at the Research and Practice Conference "The Future of International Law" within the framework of III International Legal Forum (Kutafinskie Readings). The survey briefly outlines the essence and the ways of resolving problems of international law efficiency addressed by the participants, namely: imposition of sanctions, implementation of international obligations by the states, rule-making by international courts, theoretical developments in the sphere of international organizations, fight against cyber attacks, application of the term "integration law", etc.
40-43 421
Abstract
He article provides an overview of the international scientific and practical conference "International legal guidelines on assistance for employment, decent work and social security", held as part of III Moscow Legal Forum and the X International Scientific and Practical Conference "Kutafin Readings." The article provides information on the conference participants, as well as briefly highlights the main issues discussed at the conference.
44-47 426
Abstract
The article presents the main provisions of the reform of the civil law and the Russian Federation legislation as a central theme of the Round table discussion "The reform of the civil law: problems of theory, legislation and judicial practice", held on April 8, 2016 in the Kutafin Moscow State Law University (MSAL) as part of III Moscow Legal Forum. It has been several years since the changes of the liability law in Russia. Civil doctrine and practice in a number of controversial issues was developed during this period. The article discusses the main aspects of the participants' reports at the Round table discussion devoted to theoretical and practical problems with regard to the civil law reform, in particular, the issues related to the principles of civil law, a new kind of bank account - an escrow account, the proposed construction in succession and property law, recognition of transactions void, sources of civil rights, protection of civil rights.
48-50 412
Abstract
The article provides an overview of the scientific-practical conference "The future of the legal profession in Russia. To the 150th anniversary of Professor E.V. Vaskovskiy", held as part of III Moscow Legal Forum and the X International Scientific and Practical Conference "Kutafin Readings." The article provides information on the conference participants, as well as briefly highlights the main issues discussed at the conference.
51-55 484
Abstract
The article provides an overview of the international scientific and practical conference "Administrative court procedure in Russia: Problems and Prospects", held as part of III Moscow Legal Forum and the X International scientific and practical conference "Kutafin Readings." This article provides information about the participants of the conference, theses of reports reflecting the main problems associated with the formation of the administrative court procedure in Russia.
56-60 387
Abstract
The article provides an overview of the discussion on the industry sector, the pros and cons, the problems of the use of certain concepts of the Administrative Procedure Rules of the RF on the basis of reports and discussions of the participants of the international scientific and practical conference "Administrative proceedings in Russia: Problems and Prospects ", held on April 8, 2016 at the III Moscow Legal Forum at the Kutafin Moscow State Law University (MSAL)
61-64 396
Abstract
The article provides an overview of the round table discussion "Combating crime in the era of global conflict", held as part of III Moscow Legal Forum and the X International Scientific and Practical Conference "Kutafin Readings." The article provides information on the conference participants and summarizes the speakers' papers.
65-68 828
Abstract
The article provides an overview of the round table discussion "The banking system and the banking services market in the new economic environment", held as part of III Moscow Legal Forum and the X International Scientific and Practical Conference "Kutafin Readings." This article provides information on the conference participants, the topics of their reports, and briefly highlights the main issues discussed at the conference.
73-76 339
Abstract
This article discusses the major issues raised by the participants of the International Scientific and Practical Conference "Current Issues of Strategic Planning in the Field of Environmental Protection and Rational Exploitation of Natural Resources." The authors draw conclusions about the particular relevance of the issues and concerns about improving the strategic planning for the benefit of environmental protection, environmental security, environmental management at the present stage of development of our state.
PAGES OF HISTORY
77-87 443
Abstract
The article analyses the problem that always remains relevant in the legal science, namely, the problem of sovereignty. The author compares this concept with its another hypostasis, i.e. independence of the state, and makes an attempt to identify their common features and fundamental differences by means of applying dialectical opposition. The sovereign, as a subject of sovereignty, can take both personal and anonymous form, be of individual and collective nature. The article emphasizes the fictitious nature of the sovereign subjectivity inherent to the era when sovereignty substantially changed its content and essence, i.e. to the Art Nouveau era. This transformation process was marked by such thinkers as Fyodor Dostoevsky, Vladimir Solovyov, Friedrich Nietzsche and others. A false or imaginary sovereign, even possessing authority and power, is deprived of his true legitimacy that cannot be restored by either public opinion or direct violence. Neither mimicry nor manipulation can help. "Two bodies" of the King break up in two and never unite again. A fictitious sovereign becomes a head of a fictitious "phantom" state. A "substrate" of such statehood is not people, but "masses" as specific associations fastened together by staples of external power, violence and ideology. Sovereignty associated with the freedom of existence is absorbed by the force of the power with which it is incompatible. External law plays a much more important role than the inner truth that has always been the foundation of justice. Justice itself is replaced with its own metaphor, i.e. the law. Depersonalized force of law that used to be expressed by means of making willful decisions not only limits sovereignty, but substitutes it. Sovereignty as the status radiates both movement and dynamics. Fictions that are typical for the Art Nouveau era pursue the policy of connivance for creating "unjust laws" neglecting both the truth and justice and focusing on the feasibility and effect only. The realm of law lacks metaphysical and transcendental foundations that earlier connected it with higher instances not associated with law. Normativism becomes the dominant ideology of modernism and modernity giving the law and sovereignty a completely new form and giving rise to unexpected consequences for the life of a rule of law State.
THE THEORY AND PHILOSOPHY OF LAW
88-93 640
Abstract
The paper considers the problem of balance between the territorial integrity of States and the right of peoples to self-determination as fundamental principles of Russian federalism, and describes legal forms of implementation of the right of peoples to self-determination in the Russian Federation.
STATE POWER AND LOCAL SELF-GOVERNMENT
94-103 1167
Abstract
The article considers constitutional law encouragement and compulsion as the means (tools) of effective upholding of law and order in Russia in their systematic interrelation. The author explains their legal nature and types, uncovers the system of relevant measures. Particular attention is drawn to the federal influence (federal intervention) with respect to the bodies of state power of the constituent entities of the Russian Federation as an essential tool to guarantee and maintain constitutional order in constituent entities of the Russian Federation. The author concludes that constitutional law encouragement and constitutional law compulsion are the main tools of establishing, maintaining and enforcing constitutional law and order by public authorities in Russia, their synchronous examination proves that they have interdependent nature and are highly efficient among the means of upholding constitutional law and order
104-111 487
Abstract
The article draws attention to a number of problems associated with judicial establishment of facts relevant to the implementation of constitutional responsibility. The main problem is caused by legislative uncertainty of the procedure according to which such facts are subject to being established. The analysis of the law enforcement practice has shown that some facts of constitutional law significance are established in the order provided for by Chapter 28 of the Civil Procedure Code of the Russian Federation, which causes some problems. Under the law: 1) the applicants in such cases are not defined; 2) jurisdiction is not always clear; 3) when considering such a category of cases, disputes cannot be excluded. To resolve the problems that appeared in judicial practice the author suggests that the Code of Administrative Procedure could be supplemented by the provisions dedicated to the judicial establishment of facts that are significant for public law relations (including relations subject to responsibility under constitutional law).
112-123 788
Abstract
In the paper the author considers such a category of constitutional responsibility as electoral responsibility. The paper sequentially examines categories of responsibility of subjects of voting rights available in the doctrine, and provides for the definition of such responsibility, i.e. electoral responsibility. The author also classifies the subjects of electoral responsibility into "active" subjects who organize electoral acts or who are directly involved in an election campaign (candidates, electoral associations, electoral commissions, etc.), and "passive" subjects who are called for participation at one of the stages of the electoral process (citizens, public authorities, media). The article analyzes approaches existing in the science with regard to the features of fault in electoral matters, and the author proposed his own definition of fault: "failure to take all necessary measures to prevent violations, any other passive attitude of a person towards fulfillment of his or her duties resulting in violations of election legislation, provided that the wrong-doer had an opportunity to opt for lawful behavior under existing circumstances." The article contains the author's classification of constitutional law sanctions imposed in accordance with electoral responsibility.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
124-132 464
Abstract
The paper is devoted to considering the legal issues of using the radio spectrum. The paper, inter alia, deals with the sources of legal regulation of using the radio spectrum, analyses the concept of "conversion of the radio frequency spectrum", and considers the main problems that arise during the process of governmental regulation of using the radio spectrum.
FINANCIAL LAW
The Historical Aspect of Formation and Development of Budgetary Federalism in the Russian Federation
133-140 900
Abstract
The paper is dedicated to the establishment and development of budgetary federalism in the RF and covers the period from 1991 to the present day. During this period we have passed a long way from decentralization of budgetary relations between the RF and its constituent entities (1991-1993) to centralization of powers with regard to budget and fiscal issues at the federal level (2013 - to the present day). As the result of the research, the author highlights seven major stages of the federal fiscal federalism development. Within the limits of every stage the author considers the main regulatory provisions governing inter-budgetary relations and identifies their advantages and disadvantages. The main task of budgetary federalism is to find the most efficient combination of interests of all budgets of the budget system of the Russian Federation. Having considered the stages of establishment and development budgetary federalism sequentially, the author justifies the necessity of further reform with the view to reach the balance in the area of inter-budgetary relations, because currently we witness excessive centralization of budgetary powers in hands of the RF.
CIVIL LAW
141-149 502
Abstract
This article analyzes the contractual forms of commercialization of scientific results. It examines the legal mechanisms of disposition of rights in the results of scientific activity and analyzes provisions of the existing legislation in the field of study. The paper presents the basic legal forms of use of intellectual property rights in the light of the development of innovative economy and the implementation of the Innovation Development Strategy of the Russian Federation by 2020 and the draft Strategy of the Russian Federation scientific and technological development by 2035. The article deals with such contractual structures as an agreement on alienation of the exclusive rights, license agreement, contract for scientific research work, exclusive rights lien, commissioning agreement and others. These forms of disposal of the rights in the results of research activities can be used by authors and copyright holders to commercialize their scientific work results. The author concludes that there is a need for more active involvement of exclusive rights in such results into the economy as the most important condition for innovative development of the state economy.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
Legal Communication in the Civil Proceedings Doctrine (Based on the Cases Involving Foreign Persons)
150-156 440
Abstract
In this article the author examines the communicative theory of law in the science of civil proceedings, namely: the urgency of the matter, the essence of the concept of communication. Particular attention is given to the legal communication and its application in civil procedure. The author determine a number of legal problems on application of legal communication in civil cases involving foreign parties; primarily, it concerns the interpretation of foreign documents. The necessity of the study of inter-cultural communication in the civil procedure is noted. The author analyzes the problematic situations that may arise in civil procedure due to the violation of legal communications, and identifies some ways to solve them.
LABOR RELATIONS AND SOCIAL SECURITY
157-164 6942
Abstract
The article is devoted to the research of the Russian legislation on social security for families with children. The authors analyze the institute of social security for families with children, the current Russian legislation in the field and reasons that cause the need to improve Russian legislation in the field of social protection of the family, motherhood and childhood. The conducted research allows the authors to conclude that at the present time in Russia there is no enough-developed regulatory framework of social security for families with children. One of the most important problems in the field of childhood in modern Russia is the failure to apply international standards on children's rights. The guarantees of social protection of children are limited due to the transfer of responsibility for child care from the federal to the regional level. The authors also note unequal volume and quality of services available to children and their families in different regions of Russia. Considering the issues of improving the legislation of the Russian Federation on social security for families with children the authors come to a conclusion about the need to establish the minimum amount of monthly child allowance at the federal level.
CRIMINAL LAW
165-173 605
Abstract
The position of direct harm regulation in the structure of the concept of complicity in crime has been criticized by scientists and criminologists since the adoption of the existing criminal law. In the article the author proves the necessity of separate legislative consolidation of criminal cases when the crime was committed by causing direct harm. Based on empirical data the author makes suggestions for improving the concept of direct harm. The author suggests making a complete list of directly used people (the use of minors, insane, persons under physical or mental duress, acting pursuant to orders or instructions, and innocent injuring).The author also suggest keeping the term "direct performer” in the Criminal Code, revising Art. 33, Part 2, and providing the category of "direct wrongdoer", adding to the general part of the Criminal Code Art. 361 "Direct causing" in Section 71 of the Criminal Code, "Special forms of infliction."
THE BAR AND NOTARY PUBLIC SERVICE
174-183 387
Abstract
The article is devoted to the formation of a cognitive framework of a legal corporation, to the development of common professional ethical guidelines and creation of standards the legal profession in the context of achieving the objectives of the legal profession to ensure the person's right to qualified legal assistance (art. 48 of the RF Constitution). The author ground his opinion on the need for a systematic and interdisciplinary approach to solving these issues. Formation of cognitive framework of a legal corporation as the core of corporate culture, presupposes the existence of appropriate tools and mechanisms. The above mentioned means are corporate language (as the basis of corporate culture), the standards of the legal profession (as a form of fixing the rules of the profession) and ethical (disciplinary) precedent (as one of the possible mechanisms of development of trade rules). Based on conclusions about the lack of a systematic approach to corporate language, the author concludes that there is a need to standardize lexical unit at a corporate level, as well as the process of its formation and implementation. The article defines the basic requirements for the terminological system and proves the necessity of developing standards of the legal profession, the introduction of case approach and, in particular, disciplinary precedent. The author also determines benefits of the implementation of a disciplinary precedent as one of the possible mechanisms for the formation of the rules of the legal profession and cognitive bases of a legal corporation.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
184-188 378
Abstract
The article discusses the types of situations in the court procedure in which it is necessary to examine human appearance and features of such an examination.
189-194 416
Abstract
The paper deals with the diagnostics and elimination of errors in the management of investigative situations in cases of a murder. The author reveals the importance of continuous monitoring of investigative errors as a feedback system in the forensic investigation of the murders and disclosure program. According to the author, the erroneous operation as a whole, but made in the right direction and in due time is the key to the disclosure of murders, while the right action, but made out of time, will tend to be ineffective. With this in mind, based on a number of cases occured during the author's work as a senior investigator and criminalist, the author discloses the value of erroneous activities as a management tool for investigating situations of murder cases.
INTERNATIONAL LAW
195-200 483
Abstract
The article deals with the problems of international legal protection of means of individualization, among which are the trademarks, service marks, trade names, indications of origin, name of origin, geographical indications, business names, as objects of individualizing goods, services, legal persons or companies. The author notes that only Stockholm Convention establishing the World Intellectual Property Organization, 1967, Art. 2 classifies some of the abovementioned items (namely, trademarks, service marks, trade names and business names) as intellectual property, drawing attention to the terminological discrepancy of several international treaties applicable to this sphere of legal relations. Special attention is given to the problems of the relation of names of origin and geographical indications as objects of international legal protection. The author concludes that the developers of the Geneva Act (2015) of the Lisbon Treaty are likely to choose the path of least resistance, dividing these concepts and separating geographical indications as an object of protection in addition to names of origin in order to consolidate the existing international protection regimes of both names of origin and geographical indications.
201-210 471
Abstract
The article presents a systematic analysis of contemporary international legal standards of the legal status of academic staff and concludes that these standards are the basis for the convergence of national legal regulation of the scientific sphere, which is an essential condition of the globalization of science and technology for the benefit of mankind. The study of universal and regional standards establishes that they are secured mainly in the sources of «soft» international law. The author proves that the key elements of the legal status of researchers is the freedom of research and the obligation to target research, both scientific and technological, for the purposes of social development in the coordinates compliance with and respect for human rights and freedoms. The result of the article is the position of the interconnectedness of the modernization of the legal status of research workers at the international and national level.
LAW ENFORCEMENT
211-217 434
Abstract
The article deals with the issues related to the controversial assessment of possibilities and limits of the use of the investigative activities records in criminal proceedings. The author draws attention to the violations of the provisions of the Constitution and the law of criminal procedure. The author points out the advisability of amending the Criminal Procedure Code of the Russian Federation and the Federal Law «On investigative activities.» This will allow a more balanced use of investigative activities records in establishing the evidence.
LEGAL EDUCATION
218-225 542
Abstract
One of the main tasks of higher legal education is to provide future lawyers with effective functional knowledge of foreign languages and develop their foreign language communicative competence. Innovative technologies allow us to achieve considerable success in mastering the maximum amount of knowledge, maximum creativity, practical skills and abilities. Project activities are seen as a didactic method which helps to develop cognitive legal skills based on individual and collective creative mind, and also contributes to the improvement of social and creative skills necessary for the process of socialization. The article gives an explanation of the didactic concept as a creative mind, as well as an analysis of various types of project technologies used in interactive learning process in law schools when teaching a foreign language. The author defines the goals and challenges facing every kind of project method, describes the features of the research, search, creative, predictive and analytical project activities. The article describes the requirements and the procedure for the protection of the projects prepared by students of the Kutafin Moscow State Law University and indicated differences between the project technology from other types of interactive educational process such as discussion and brainstorming. Based on the analysis of project works of the students of Moscow State Law Academy the authors conclude that this technology contributes to the formation of foreign language competence in the course of professionally focused foreign language courses.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)