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Actual Problems of Russian Law

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No 8 (2016)

THE PERSON. THE 120TH ANNIVERSARY OF MARK A. GURVICH

11-12 388
Abstract
The paper presents a brief overview of the Scientific and Practical Conference dedicated to the memory of an outstanding scientist, Doctor of Law, Professor Mark A. Gurvich.
13-16 618
Abstract
The paper considers Professor Mark A. Gurvich approach to the principle of objective truth in civil proceedings. It also contains Professor's reasoning in favor of applying the principle of objective truth in Soviet civil procedure. The author considers Prof. Gurvich opinion with regard to the subject of the truth assertion, the effect of legitimacy and validity of a court decision on its truthfulness and analyzes the problems of implementing the rule of admissibility of evidence.
17-23 827
Abstract
He paper considers Prof. Gurvich views of the problem of identity of claims. The author elucidates the scholar's approaches to the elements of a claim, as well as his views of the category of intent for the purpose of individualization when determining admissibility of changes in a claim made by a claimant. The author concludes that Prof. Mark A. Gurevich made an invaluable contribution to the development of the Science of Civil Procedure.
24-29 484
Abstract
The paper is devoted to the examination of the category of enforceability in Prof. Mark A. Gurvich writings. The author covers the problem of enforceability of court decisions on enforceability. The author develops the statement according to which enforceability amounts to a mandatory characteristic inherent to all decisions that entered into force. This follows from the fact that the recourse to a court for protection of infringed rights is associated with the right of a claimant to sue in the material sense as an opportunity to enforce claims, and, therefore, technically there are no and can be no unenforceable decisions. However, a number of such claims are of non-monetary nature, which, when there is no any specific mechanism of enforcement, leads to impossibility of their enforcement in practice, to some extent because, in decisions on recognition or on obligating a debtor to undertake certain actions, there is no specific indication of any possibility for a debt-collector or a bailiff to carry them out in personal independently of a court. This contradiction manifests the lack of legal regulation of the procedure of court decisions enforcement for the whole category of cases, which should not be treated as the lack of enforceability for such decisions, as there is a possibility for such an act to be enforced by means of an enforcement procedure.

PAGES OF HISTORY

30-34 539
Abstract
The article is devoted to the specific techniques that were used by the legislator to change legal regulation, as well as to develop legal mechanisms of the institute of state crimes. The author subjects to examination revisions and corrections of the 1845 Code of Criminal and Correctional Penalties. In particular, the paper considers the differences between the 1885 Code and the 1866 Code. Examination of the differences allows the reader to identify a number of specific methods that reflected the aim of the legislator to carry out certain transformation in the legal regulation of the institute of state crimes. In the literature, such specific methods have received relatively little attention. Thus, studying them, as well as assigning labels to them in accordance with their peculiarities, meets the requirement of scientific novelty. The paper examines a new method of enumerating articles in the text of a law that was first applied in the 1845 Code of Criminal and Correctional Penalties and two special methods of making legal amendments for which new labels were coined: the method of "indirect protection” and the method of "lasting decriminalization".

THE THEORY AND PHILOSOPHY OF LAW

35-43 573
Abstract
The paper explores the process of evolution of such critical aspects of the category of an offense as the concept of an offense, types of offenses and the elements of an offense from the 9th to the 16th centuries in the context of the most important landmarks of law of that historical period, namely: Russkaya Pravda (eng. Ruthenian Justice or Rus Truth), Pskovskaya Sudnaya Gramota (eng. Pskov Court Charter) and Law Codes of the Moscow State.

STATE POWER AND LOCAL SELF-GOVERNMENT

44-48 762
Abstract
The paper considers the issues concerning the role of the constitutional control organs of the Republic of Kazakhstan in enforcing the rule of law. The author analyses interrelation and the balance between the principle of the rule of law, the principle of the rule of the Constitution of the Republic of Kazakhstan and the principle of the supremacy of laws. The author justifies that the supremacy of laws is an independent constitutional principle that is different from the principle of the rule of law, which significantly enriches its modern understanding. The author demonstrates what role the organs of constitutional control play in implementation of the principle of the supremacy of laws and providing control over compliance of laws and other regulatory acts adopted by governmental agencies with the Basic Law of the state.
49-58 737
Abstract
The article deals with the content of the legal and constitutional structure of the State Duma's interaction with the Human Rights Ombudsman in the Russian Federation as an independent form of parliamentary control. The author defines the objectives, participants, and purposes of interaction, as well as the forms of its implementation. The paper considers disputable issues concerning the methods of integration of controlling activity of the Federal Ombudsman into the system of parliamentary control. In conclusion the author offers the ways of integration that maintain independence and autonomy of the institution of the Ombudsman in the Russian Federation and ensure the horizontal model of interaction with other participants of parliamentary control.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

59-67 2192
Abstract
The paper considers the problems of modern understanding and the role that police law is playing as a sub-branch of Russian administrative law. The enactment, within in the framework of the reform of the Russian Interior Ministry, of the law on police accelerated the renewal of Russian police legislation that by now consists of hundreds of legislative acts. The author notes that in our country the process of releasing the police (militia) of non-core functions was completed in 1930-s, and the formation of police law took place in the second half of the 20th century. The author concludes that currently necessary prerequisites have developed and first steps are being made to research the problems of foundation and development of police law, its subject matter, methodology, system, sources, and the place in the legal system of Russia. The paper draws attention to the necessity to expand and clarify policing and regulatory powers connected with coercion or compulsion to act in a certain way. The author subjects to critical evaluation an extremely conservative interpretation prevailing in the scientific society of the processes that are taking place due to the police reform.

FINANCIAL LAW

68-75 549
Abstract
The paper considers the issues of legal regulation of calculation of costs as one of the methods of accounting, examines the problems of application of the method of direct calculation (direct-costing), as well as the rules of forming financial results by business entities in accordance with the legislation of the Russian Federation.

BANKING SYSTEM AND BANKING ACTIVITY

76-83 506
Abstract
The article is devoted to consideration of the legal status of the Bank of Russia in the national payment system. The author examines in detail the rights and obligations of the Central Bank of the Russian Federation as a regulatory body in the national payment system, as well as its activities as a money transfer operator, as the Bank of Russia payment system operator and an operator of services provided by the payment infrastructure.

BUSINESS AND CORPORATE LAW

84-95 734
Abstract
The article explores the legal institute of bankruptcy of credit organizations. The author focuses her attention on peculiarities and recent changes in legal regulation. The paper illustrates problematic aspects using judicial practice and doctrinal approaches.
96-106 700
Abstract
The article is devoted to the examination of the nature of the influence of the post-industrial social and economic development on the models of the debtor's bankruptcy that have traditionally developed in bankruptcy law. The article considers the problem of choosing a legal formula of an "ideal" model of the debtor's bankruptcy, examines the essence of a debtor, the objectives of the bankruptcy relations legal regulation, as well as participation of a debtor in bankruptcy relations under the conditions of post-industrial development, examines theoretical and practical aims of a model of the debtor's bankruptcy as a category. Particular attention is paid to the problem of determining appropriate legal means necessary to achieve objectives of legal regulation of bankruptcy relations and participation of the debtor in such relations.

LABOR RELATIONS AND SOCIAL SECURITY

107-113 605
Abstract
This article deals with the concept of an employment contract to perform seasonal works, provides a comparative analysis of the legal regulation of seasonal workers employment in Russia and abroad (Argentina, Finland, New Zealand, the United States, Canada, France, EU instruments). After examining opinions of different authors and relevant legislations of those countries, the author makes a number of conclusions.
114-120 680
Abstract
The article deals with the issue of settling individual employment disputes out of court by means of application of the mediation procedure; the author reveals the essence of the work of mediators and the role of a mediator in settling employment disputes. The main purpose of the law on mediation is to lessen the burden imposed on courts and to settle disputes at the pre-trial stage, but judicial practice analysis shows that the parties resort to mediation in employment relations only after the court proceedings commencement. The author carries out a comparative analysis of the practice of employment disputes resolution in court and out of court both in the Russian Federation and abroad. In the process of research the author reveals shortcomings of both the court proceedings employed to resolve disputes and the law on mediation, and raises problems that need discussion. As the main conclusion to this article, the author concludes that conciliation procedures in employment law as compared with other branches of law are regulated at the law-making level and the enactment of The Law on Mediation had no impact on the provisions of the Labor Code that govern the process of resolving individual employment disputes.

CRIMINAL LAW

121-128 683
Abstract
This article gives a criminal legal analysis of specific criteria of individualization of punishment in case of repeated crimes. The Criminal Code of the Russian Federation distinguishes between the following criteria: 1) the nature and degree of danger to society of the previously committed crimes; 2) the circumstances under which correctional impact of the previous sentence have not been sufficient; 3) the nature and degree of danger of the repeated crimes. Based on the analysis of the extensive material of litigation practice and theoretical views on the studied subject, the author identifies the factors that influence the studied criteria through individualization, as well as proposes legislative changes in the wording of the criteria in order to streamline case materials.
129-135 1075
Abstract
The article deals with the conditions for exemption from criminal responsibility under art. 2001 of the Criminal Code of the Russian Federation "Cash and (or) financial resources smuggling.” The condition of the absence of corpus delicti in the actions of a person has no legal value, therefore it is advisable to extract it from the explanatory note 4 to article 2001 of the Criminal Code of the Russian Federation and a number of similar regulations. The main and the only condition for exemption from criminal responsibility under art. 2001 of the Criminal Code of the Russian Federation is the voluntary delivery of illegally transported cash and/or financial resources. However, the analysis of the legal precedents and statistical data allows us to talk about the impossibility of the practical implementation of the rule by virtue of a provision which does not recognize the detection of cash and (or) financial resources as their voluntary delivery when applying forms of customs control. The oral interview, as a form of customs control, even includes a question on having money and (or) financial instruments being transported illegally which is asked by a representative of the customs bodies. Thus, the courts have to apply the rule on active repentance, whereas explanatory note 4 to art. 2001 of the Criminal Code of the Russian Federation remains idle. Taking into account the above mentioned the author proposes a new wording of the rule.
136-143 1270
Abstract
At present the problem of administrative prejudicial effect has not received any detailed theoretical development. However, in the absence of scientific basis, the legislator complements the existing Criminal Code of the Russian Federation with elements of an offence with the administrative prejudicial effect. The author concludes that the similarity of the legal nature of administrative and criminal responsibility and the possibility of cross-sectoral differentiation of administrative liability through administrative prejudicial effect in criminal law. The article explores the features of objective and subjective elements of offences with administrative prejudicial effect with reference to the existing problems and deficiencies of legal regulation.

CRIMINAL PROCEDURE

144-152 1552
Abstract
The article is devoted to the analysis of such concepts as "misrepresentation" and "fraud" in criminal procedure. The paper differentiates these concepts, analyzes the criminal procedural effects of fraud and misrepresentation, which take place in criminal proceedings, as well as discovers their legal substance and possible impact on the criminal case. The article also determines the correlation between a fraud and abusive misrepresentation within a criminal process. The author proposes the basic forms of criminal procedure response to fraud and misrepresentation brought out within the criminal proceedings. The article highlights the main directions for combating these negative phenomena, provides classification of a set of measures for combating misrepresentation. The author proposes ways of perfection of legislation in order to prevent misleading of the participants of the criminal process and the restoration of rights of persons involved in criminal proceedings, infringed as a result of misrepresentation. The article also focuses on entrapment as a particular form of fraud in the criminal process, indicates negative effects of inadequate information on the implementation of the general principle of legal certainty in criminal proceedings.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

153-159 427
Abstract
This article analyzes the recommendations on individual forecasting of behavior of probationers: the technique of "Portrait", which allows us to differentiate the controlled persons into three groups (categories) depending on what behavior a convict is presumably expected to show: the first group of persons who are presumably expected to commit a new (recurrent) offence during their probationary period, the second group - persons who are supposedly expected to show lawful behavior during the probationary period and after its expiry; the third group of persons who presumably won't commit a recurrent crime during the probationary period, but may do so after its expiry. The conclusions and proposals presented in the article are based on the results of the research activities of 9 Correction Services of Central Administration of Federal Enforcement Service in Kemerovo region and Altai Republic Administration of Federal Enforcement Service, as well as the analysis of the characteristics of probationers who had committed crimes during their probationary period, amounted to 341 people. The author also studied personal files of 450 convicts and interviewed 42 inspection officers.

LAW ENFORCEMENT

160-168 550
Abstract
The article is devoted to one of the topical issues of procuratorial theory associated with the determination of the content of the subject of procuratorial supervision over compliance with the law. On the basis of retrospective analysis of the stages of formation and development of ideas on the subject of procuratorial supervision over compliance with the law, the author proposes to narrow the discretionary powers of the Prosecutor, eliminating supervision and execution of undefined (absolute)-mandatory legal provisions from the content of the concept of prosecutorial supervision, leaving the solution of the issues to the discretion of participants of legal relationships.
169-181 565
Abstract
The article deals with the basic content of the goals and objectives of administrative activities of prosecution authorities of Russia. The author analyses the existing legislation and the views of leading scientists in the field of public administration. The necessity of adoption at the level of the President of RF of an integrated programme of reforming Prosecutor's Office in the long-term period is proved.

INTERNATIONAL LAW

182-189 620
Abstract
This article discusses the stages of establishing the principle of ecosystem approach towards fisheries management, its international legal content and value. The article also examines the universal international treaties and acts of a recommendatory nature, regional agreements and practices of regional fisheries management organizations, bilateral treaties and legislation of some States on the application of the ecosystem approach towards fisheries management. The author suggests recommendations on enshrining the principle of ecosystem approach towards fisheries management in international treaties and legislation of the Russian Federation.

COMPARATIVE LAW

190-204 461
Abstract
This article discusses issues related to the social responsibility of business based on the analysis of labor legislation of Russia and Vietnam. Russian and Vietnamese labor law lacks the concept of social responsibility of an employer, which leads to a different assessment. Having analyzed the UN Global Compact, international standards, labour laws of Russia and Vietnam and bylaws (codes of ethics, codes of corporate social responsibility, etc), the authors identifies the criteria for determining a socially responsible employer and their limits. The paper considers an individual and collective responsibility of employers. The comparative analysis of the norms of labour codes of the RF and Vietnam is provided.
205-212 821
Abstract
The article is devoted to the study of peculiarities of legal regulation of property relations in countries of Anglo-Saxon legal family. The author conducts a study of the concept of "immaterial thing” in the Common Law legislations, analyzes related terms used to refer to intangible things ("incorporeal property", "intangible property (assets)," "intangible hereditament"). The article considers separate ways of protection of personal non-property rights. As a result of the study, the following conclusions were drawn. Firstly, division of objects (things) into material and immaterial, which is common for Roman Law, is also specifically present in common law countries. The above said proves that today there is an existing objective need in the regulation of public relations, the object of which is intangible benefit. Secondly, the majority of intangible benefits, recognized as such in Russian law, in common law countries are not considered distinct from their rights. Legal protection of intangible benefits is established by consolidating the norms of non-property rights and the subsequent creation of effective mechanisms for their protection through the case law. Thirdly, despite the fact that the legislation of the common law countries has no such a term as "intangible benefit", legal protection of intangible products is carried out by other institutions, such as "Intangible property", "Incorporeal property", "personal rights".

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

213-220 581
Abstract
The concept of environmental security is one of the basic concepts of environmental legislation. Science has no common understanding of environmental security, forest law science has yet to develop this category. Meanwhile, forestry legislation plays a decisive role in ensuring environmental security. In this regard, the article deals with the issues of environmental safety of forest legislation, a special place is given to the Forest Code of the Russian Federation. In addition, the author researches international legislation, studies the place of environmental security in the system of law, the correlation of "environmental security" and "national security", reveals the meaning of environmental safety in forestry. At the end of the article the author makes some conclusions on the subject of research.

CONFERENCES

221-228 370
Abstract
The article provides an overview of the round table discussion "Problems of application of the legislation on collateral accounts", held on May 25, 2015 at the Kutafin Moscow State Law University (MSAL). The article summarizes the reports of the participants of the round table discussion.


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ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)