No 9 (2016)
PAGES OF HISTORY
11-19 498
Abstract
The paper justifies the fact that main principles of the jury trial foundation set out in the "notes" by Dmitriy Rovinsky, Sergey Zarudny and Nikolay Tsiolkovsky eventually formed the basis of the Russian legislation regarding a jury trial having formed its conceptual basis, and Dmitriy Rovinsky, Sergey Zarudny and Nikolay Tsiolkovsky played a key role in providing theoretical justification and development of the idea of necessity and viability of the jury trial foundation in Russia during the period of Judicial Reform 1864 preparation. Advanced principles and institutions underlying the domestic jury trial legislation that was passed in 1864, were determined not immediately. The introduction of a jury trial in the Russian Empire was preceded by long enough and complex legislative work. The work was carried out by Moscow Governorate Prosecutor Dmitriy Rovinskiy, Secretary of the State Council Sergey Zarudny and Ober-Procurator of the General Meeting of the Moscow Senate Departments Nikolay Butskovskiy. Developing the project "Fundamental Provisions of the Judiciary Reform in Russia" in 1862 as a judicial reform program, lawyers did not mechanically borrow the institutes of European countries, but applied only those correspondent to the Russian reality. Meanwhile, the institutes were being transformed in accordance with the traditoons and customs of the country. Essential judicial transformations were evaluated from theoretical and practical points of view. "The Fathers" of the judicial reform were well aware of the fact that a jury trial had a lot of opponents. Thus, they saw their primary goal in providing its comprehensive justification. Different arguments, including the arguments that were based on Russian history, were given in favor of a jury trial. Priority had been given to the historical method of proving particularly contentious institutions, search for their origins in the distant and near past of the country.
THE THEORY AND PHILOSOPHY OF LAW
20-24 803
Abstract
The article is devoted to the issues of limitation of the legal status of an individual in the modern Russian society in connection with the need to ensure internal and external security of the country. Human life and health are dealt with as socially meaningful categories that affect the status and standard of living in the state. Social relations regulation is described as the most significant function of law implementation that involves setting standards of behavior conducive to the progressive development of the society. The author examines the meaning of legal safeguards for the health of individuals and the health of population, and health related legal obligations of citizens and other persons residing within the territory of the Russian Federation. The paper clearly demonstrates the essence of a criminologically important factor of the spread of drug abuse for the society. Non-medical use of drugs is seen as a socially dangerous factor. Restriction of the freedom to be in charge of their physical abilities and to meet their needs, including non-medical use of narcotic drugs, psychotropic substances or their analogues, is justified by the need to ensure public safety.
STATE POWER AND LOCAL SELF-GOVERNMENT
25-34 391
Abstract
The paper considers the issues associated with combining the powers of electoral commissions at different levels. The relevance of these issues is determined, inter alia, by implementation of a single day of voting in Russian electoral laws. The author carries out a comparative analysis of opinions concerning the problem of conferring powers of election commissions of municipalities on territorial election commissions and precinct election commissions in accordance with the election campaigns practice. When conducting electoral campaigns in recent years in Russia electoral commissions apply various schemes of combining their powers to save financial, material, human resources. The practice of combining the powers of the election commissions at different levels is also implemented in foreign countries. In order to avoid overlapping of powers of municipal electoral commissions and territorial election commissions within the same territorial unit at the level of urban districts and municipal districts the author offers the option that allows optimizing the system of election commissions
35-42 503
Abstract
The article examines the essence of compulsion as an aggravating circumstance, basic forms of its manifestation as a way of committing a crime under art. 141 of the Criminal Code; the author makes a proposition concerning incompatibility of current Article 141 of the Criminal Code of the Russian Federation with the basic requirements of the legal drafting methodology, which leads to the crime qualification problems. To eliminate the defects of the legal rule, it is proposed to include into Part 2 of Article 141 of the RF Criminal Code the main forms of compulsion such as violence, threat of violence, destruction of or damage to property or the threat of its destruction, dissemination of false information about the victim and her family, etc. This will allow us to apply the rule of law in question in practice.
43-49 364
Abstract
This paper considers the essence of the right of legislative initiative, forms of its implementation in Parliament of the Chechen Republic. The author carries out the analysis of viability and reasonability of vesting different bodies with such rights and the status of such bodies. The author brings forward proposals aimed at improving the institute of constitutional law.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
50-56 464
Abstract
The paper is devoted to the examination and comparison of administrative law and criminological aspects of improving the work of subjects of crime prevention. The article proposes to decriminalize a number of offenses that are currently referred to as minor crimes; the author addresses the issue of introducing criminal liability of legal persons and examines the existing models of antitrust laws.
FINANCIAL LAW
57-66 1514
Abstract
Financial activity is acting as a multidimensional phenomenon: on the one hand, it amounts to a management activity in the sphere of finance; on the other hand, the financial activity is itself the object of managerial control. Financial law that regulates relations developing in the process of carrying out financial activities is a vital tool of managerial interference on the part of public authorities; financial control is carried out at all stages of financial activity, inherently characterizes it because such control is a manifestation of a relevant function of finance; effective legal regulation of financial control must take into account that it is a management tool and at the same time, bodies performing financial control are also subjected to regulation; financial control that implements the function of social management is not limited to the verification of legislation, it is aimed at achieving social goals and targets as the result of financial activity.
LEGAL REGULATION IN THE INFORMATION SPHERE
67-75 10045
Abstract
The paper deals with the fundamental problems of legal regulation of the Internet, namely: dissemination of extremist materials through the Internet; problems related to the protection of intellectual property rights on the Internet; problems of legal regulation of exclusive rights at the network address (domain name); protection of personal data; legal regulation of electronic commerce on the Internet; propaganda, illegal advertising of narcotics and psychotropic substances; unlawful dissemination of pornographic materials on the Internet; defamation on the Internet; fraud on the Internet (Internet begging, fraud associated with online stores, Web forgery, bollards, phishing). The author highlights the reasons why offenses on the Internet are developing particularly rapidly, as well as a number of reasons related to the complexity of the legal regulation of the Internet. The article notes the need to improve the legislation defining the legal status of the Internet, the rights and duties of its users, as well as responsibility for offenses committed on the Internet.
CIVIL AND FAMILY LAW
76-80 1025
Abstract
The paper is devoted to the study of the role analogy plays in the system of Russian civil law. The author justifies the advisability of referring analogy to the "legal institute" category. The author concludes that the analogy in civil law can be classified as a complex, mixed, substantive, general, regulatory and functional legal institute. The author provides detailed characteristics of each of the classifications. Based on the analysis of the institute of analogy it is revealed that analogy of law and analogy of a law are acting on an equal footing and the analogy of law acts as sub-institutes of analogy. They provide a single organizational beginning for the legal assessment of the circumstances not regulated by law. Despite different internal content, they share a common goal, namely, to overcome the legal gap.
BUSINESS AND CORPORATE LAW
81-92 688
Abstract
The paper deals with the peculiarities of the legal status of minors as participants of entrepreneurial relations. The paper answers the question of the scope of legal capacity of a minor who acts as a sole proprietor. Current legislation provides for being engaged in entrepreneurial activities since 14 years. Carrying out entrepreneurial activities by minors who do not have full legal capacity causes a number of difficulties in practice and is not consistent with its essence. Entrepreneurial activities ought to be carried out only by those underage citizens who have gained full legal capacity. Therefore, the author proposes a number of amendments and additions to the legislation Thus, as the ground for emancipation, Art. 27 of the Civil Code of the RF should contain the requirement of intention to carry out entrepreneurial activity rather than carrying it out in fact. Also, during the research authors came to the conclusion that the involvement of a minor in the activity of a legal person, even if he participates in the work of such a management body as the Board of Directors (Supervisory Board) or the Directorate, shall not be regarded as a kind of entrepreneurial activity and, therefore, to be the ground for emancipation.
93-100 744
Abstract
The paper deals with the issues concerning the limits of implementing a specific right of the state ("golden share") when the state participates in joint-stock companies. The author puts forward the view that a "golden share" is a concept where the interests of the state are competing with the interests of a joint-stock company and a joint-stock company and other shareholders. Thus, the paper leads to the conclusion that it was necessary to clearly limit the scope of application of the "golden share". To this end, the author determines five criteria that define the scope of the "golden share", namely: the purpose of implementing a "golden share", the holder of a "golden share" in relation to whom a "golden share" is issued, a share size (number of shares) in the charter capital of a joint-stock company and the term of validity of a "golden share". The author examines literary sources, provisions of the effective legislation and law enforcement practice, as well as the experience of foreign legal systems. The author calls for the necessity of a "soft" approach to the institute of a "golden share" that is based on an equitable balance and reasonable combination of interests of a state-shareholder, other shareholders and a joint-stock company.
LABOR RELATIONS AND SOCIAL SECURITY
101-107 579
Abstract
One of the main tasks under the conditions of an unstable Russian economy is to preserve existing jobs and protect the labor rights of workers and employees. The state must ensure that various organizations do not conceal the fact of existence of labor relationships disguised by means of a civil law contract for labor. At the legislative level, the necessary measures have already been taken. Thus, on January 1, 2014 amendments to the Labor Code of the Russian Federation prohibiting the conclusion of civil contracts for labor that, in fact, govern labor relationships between an employee and an employer came into force. But, unfortunately, the courts have not yet developed a uniform court practice on this issue, which makes it possible for an employer to escape liability for the violation of not only labor laws, but also tax legislation.
CRIMINAL LAW
108-115 404
Abstract
Criminal law policy liberalization should start first of all with the assessment of the gravity of an applied repression. One of the fundamental, relatively simple and very effective tools for such an assessment is time in its most common form in criminal law, i.e. a term. First, the emergence of term punishments was caused by the evolution of public punitive policy that, inter alia, was determined in accordance with correctional effect evaluation and, as a consequence, the law enforcer was equipped with tools necessary to adjust measures of such effect. Second, this predetermined the emergence of a number of institutions of temporal nature: conditional sentence, conditional discharge, deferred sentence, limitation, criminal record. In the theory of law attempts had been made to carry out an integrated analysis of the named institutions, with their conditional or non-punitive character being taken as a basis. This last feature allowed the scholars to combine these measures in an integrated institute of probation that is being analyzed exclusively at the theoretical level. A slightly different approach to the analysis of probation is based on its temporal nature, its genetic connection with timing. A comprehensive study concerning the terms of probation under criminal law has never been carried out.
116-121 611
Abstract
The paper considers the question of interrelation of reasons and emotions in criminal law, characterizes various contemporary psychological theories of reasons for committing human acts involving the emotional component, evaluates possibilities of their use in criminal law. Emotions of a person and the reasons of his actions cannot be defined on the basis of external or internal exposure to the stimulus. At the same time, not in all situations feelings and emotions become an impelling force similar to a reason; they often act as background emotional state of a person when he or she is committing illegal acts and for many crimes they have no criminal meaning. Under the circumstances the necessity arises for carrying out complex studies of a mental element of a crime and psychology of a person committing a crime. It is reasonable to commission forensic psychological expertise in criminal cases involving violent crimes, because these socially dangerous acts are connected with a strong manifestation of emotional and psychological aspects of a personality.
CRIMINAL PROCEDURE
122-130 759
Abstract
The article is devoted to the analysis of the decisions of the European Court of Human Rights, which allowed the author to systematize the violations of Art. 6 of Convention for the Protection of Human Rights and Fundamental Freedoms made by Russian courts of second instance, failing to conduct a fair trial in full. This fact has affected the adversarial nature of the process and equality of both parties (the principle of equal opportunities in the process). Thus, the review of ECHR judicial practice on the interpretation of Art. 6 p.1 and Art.6 p.3 of the Convention made it possible to identify specific circumstances of hearings of criminal cases, which led to a breach of these provisions, in Russian courts of second instance. It is proposed to arrange identified violations according to their prevalence, identifying systemic (structural) issues, resulting in a breach of Art. 6 of the Convention.
THE BAR AND NOTARY PUBLIC SERVICE
131-136 461
Abstract
The article is devoted to the problems of the notarial record of evidence in electronic form, the analysis of perpetuation of evidence on the Internet that are presented in the form of contextual advertising and moving message display sign. The author considers the principles of functioning of the Internet and information layout, studies advertising placed on the net and identifies problems of its fixing as evidence. Analyzing the requirements of regulatory legal acts to drafting of a protocol of examination of evidence on the Internet, the author concludes that Guidelines on certain notarial activities by notaries of the Russian Federation require supplements as notarial action has its own characteristics and cannot be recorded in compliance with other rules as other kinds of evidence.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
137-141 576
Abstract
This article discusses the basic provisions of the forensic characteristics of criminal violations of privacy, committed on the Internet. It is noted that together with the growth in computerization of the population, availability of mass media, there has been an increase in the number of such crimes. The existence of scientific method of investigation, which is the most important forensic characteristic of a crime plays an important role in the success of the fight against crime. The elements of a forensic characteristic of criminal offences in question are: the subject of a criminal assault, ways of committing a crime, information about crimes, instruments and traces of crimes, personal characteristics of the offender and the victim, the motive and purpose of the offence.
142-150 428
Abstract
The article considers procedural form of using specific knowledge: engaging an interpreter in participation in criminal proceedings when investigating crimes in general and in the area of illegal production (catch) of aquatic biological resources, committed with the use of foreign ships, in particular. The author analyzes the main viewpoints of scientists on the study of the legal status and subject of the procedural activity of an interpreter. He considers the concept "interpreter", which is applied in Russian criminal proceedings. The author points out some discussable points and suggests his view on the issue. The knowledge of a foreign language required for the translation process when participating in criminal proceedings possesses characteristics of expertise, which makes it possible to consider an interpreter a competent person in the field of Linguistics. An interpreter has the expertise and his involvement in the criminal proceedings is a form of application of the expertise. Despite the similarity of the procedural situation for an interpreter and the procedural status of the expert, it is pointed out that the authority of the interpreter is wider than the authority of the expert. An analysis of the investigative and judicial practice shows the importance of the participation of a translator in the process of investigation of illegal production (catch) of aquatic biological resources, committed by means of foreign ships, affirming that the interpreter's testimony may be the means of establishing the circumstances essential to the criminal case. The article explores the problematic issue associated with the regulation of the order for participation of an interpreter in a confidential meeting of the suspect (the accused) and defender by criminal procedure legislation. In conclusion, the author makes certain recommendations for the improvement of the criminal procedure legislation, which could identify new opportunities for the use of expertise in the investigation of crimes and expand the range of evidence used. It is proposed to supplement Article 74 part 2 "Evidence" and Chapter 10 "Evidence in Criminal Proceedings" of the Criminal Procedure Code of the Russian Federation.
ENFORCEMENT OF PENALTIES
151-158 834
Abstract
Legislator in Art. 1 part 1 of the Penal Enforcement Code of the Russian Federation sees the correction of convicted persons and preventing their commitment of further crimes, either by convicted criminals or by others, as a desired outcome of legal regulation of the enforcement of criminal penalties. Achieving these goals is the ideal social outcome of the actions of penal enforcement legislation. The similarity of the goals of penal enforcement legislation with the objectives of criminal punishment by the majority of researchers can be explained by the fact that the Criminal Code of the Russian Federation is the basis and material base in relation to the Penal Enforcement Code of the Russian Federation. Scientific disputes concerning the definition of the objectives of penal enforcement legislation are confined either to their adjustment according to Art. 43 Part 2 of the Criminal Code, or the replacement of such goals as the correction to resocialization, social rehabilitation, social adaptation, etc. The author makes a conclusion about inadmissibility of the unification of criminal punishment and the penal enforcement legislation. This leads to the interference with logical form of legislative technique, since different legal nature categories may not have similar objectives. The author provides his own position on definition and goals of penal enforcement legislation. According to the author, the aims of penal enforcement legislation are: 1) effective functioning of the penal system; 2) streamlining the penal enforcement relations.
INTERNATIONAL LAW
159-167 668
Abstract
The article covers international cooperation between states in the field of direct taxation. The author focuses on the OECD Model Convention on prevention of double taxation on income and capital tax. The forms and limits of international cooperation on direct taxation are listed. The article deals with the problem of the exchange of information for tax purposes, tendencies of development of legal regulation of information exchange in international treaties. The author notes that the trend of the last decade is the growth of bilateral double taxation agreements based on OECD Model Convention. It is noted that the fact of ratification by Russia of the joint Council of Europe/OECD Convention on Mutual Administrative Assistance in Tax Matters is vital for Russia to integrate into the process of information exchange.
INTEGRATION LAW
168-175 655
Abstract
The article analyses the mechanism for challenging decisions, actions (inaction) of Eurasian Economic Commission in order to determine the order of its functioning. In the framework of the research the author reveals the legal foundations of the mechanism for challenging decisions, actions (inaction) of Eurasian Economic Commission, identifies its key components such as the scope of persons (claimants), entitled to challenge the relevant decisions, actions (inaction); differentiated approach to challenging decisions depending on the category of applicants; use of out-of-court settlement of the dispute. Based on the results of the study of the key components of the mechanism for challenging decisions the author highlights some features of functioning of the mechanism in question, which could lead to possible negative consequences for the economic actors in the realization of the right to challenge the decisions, actions (inaction) of Eurasian Economic Commission, as well as to neglect proper safeguards for implementing that right. The author formulates a proposal about the feasibility of carrying out work to improve the mechanism for challenging decisions, actions (inaction) of Eurasian Economic Commission with the purpose of leveling the contradictions that can arise in practice, as well as improving the application of this mechanism.
FOREIGN EXPERIENCE
176-185 686
Abstract
The article is devoted to the peculiarities and the novels of legal regulation of cross-border e-commerce in China. The author considers the economic regulatory framework for cross-border electronic commerce, notes that China has not passed a separate law on electronic commerce yet, despite the existence of the plans to adopt such a law. The author also points out that the legal framework for electronic commerce and electronic commerce in China in general is not comprehensive and exemplary, besides its regulations are often either vague or outdated. Sale of fake, counterfeit, substandard goods and infringement of IP rights are widespread in the implementation of electronic commerce. This problem is also complicated by the lack of an effective mechanism for resolving disputes in China. Analyzing regulatory novels in addressing identified problems, the author focuses on the changes in the corporate and investment law of the Republic of China, and requirements for foreign companies operating in China. The article also focuses on administrative and fiscal legal acts in the legislation of the Republic of China. Thus, the author separately analyzes such latest regulations, enacted in China in 2016, as Special Plan for the Development of Electronic Commerce Logistics (2016-2020), Circular on Tax Policy for Cross-Border E-Commerce Retail Imports, Cross-Border E-Commerce Retail List of Imported Goods.
LAW ENFORCEMENT
186-190 770
Abstract
This article analyzes the issues of legal regulation of citizens' participation in maintaining the public order at the municipal level. The authors examine both federal legislation and legislation of the Saratov region in this field. Although in general the legal regulation of citizens' participation in maintaining the public order is estimated in a positive way, however, they note a number of gaps in the Saratov region law and, on this basis, formulate proposals for modifications and supplements.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
191-202 714
Abstract
The article is devoted to the market mechanism of the reduction and stabilization of greenhouse gas emissions. The author considers peculiarities of legal regulation of existing international, national, regional cap-and-trade systems for greenhouse gases into the atmosphere. On the basis of the official data published by the executive authorities governing the cap-and-trade systems, the author provides a detailed analysis of the results of cap-and-trade systems and makes conclusions on their effectiveness. As a result of the work the author provides recommendations for the implementation of cap-and-trade systems in Russia.
CONFERENCES
ATTACHMENT OF FUNDS AS THE GROUNDS FOR THE PLEDGE OF RIGHTS UNDER A BANK ACCOUNT (DEPOSIT) AGREEMENT
203-209 455
Abstract
The article covers the question on possibility of applying provisions of Art. 334 paragraph 5 of the Civil Code of the Russian Federation, which provide for the emergence of the pledgee if there is a ban on disposal of property and satisfaction of the creditor's claims, to secure which the freezing order was issued, as well as general provisions on pledge for attachment of the cash funds in the bank account of the debtor. The author conducts a comparative analysis of the realization of the rights of the mortgagee upon attachment of cash funds and pledge of rights under a bank account (deposit) agreement.
210-213 560
Abstract
The article considers the basic legal and economic reasons for the pledge of rights under a bank account agreement to be limited in usage in practice. It also covers the causes related to ambiguous legal nature of collateral accounts, contradictions in the regulation mechanism of realization of collateral on the account, exclusion of such a form of security ascertaining fund reserves for possible losses on loans and the obligatory standards of credit institutions, exclusion of funds in collateral accounts from the system of insurance of physical persons deposits. It is also proposed to eliminate barriers identified through the changes in the Civil Code of the Russian Federation and other regulatory legal acts, including the regulatory acts of the Bank of Russia.
214-216 367
Abstract
The author analyzes separate issues of application of Art. 358.9-358.14 of the Civil Code of the Russian Federation. In practice, there are various difficulties depending on the type of monetary pledge in a collateral account: pledge for the whole sum in the account and a pledge for the convertible cash in the account. In particular, the author points to the irrationality of saving of a pledge for the whole sum of money in case of partial performance of the secured obligation, the possibility of abuse of the collateral account by the pledgor, etc.
LEGAL EDUCATION
217-228 745
Abstract
The article discusses current methods for teaching courses in law: passive, active and interactive; the distinction between them; the possibility of delivering different types of classes in the active and interactive forms, formation of additional professional competencies (DPK). Illustration of application of different methods is given through the prism of courses in company and banking law, review of literature on methodology, which is based on their testing during the pedagogical activity of the author or her participation in the work of the Methodical Council.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)