No 10 (2016)
MOSCOW STATE UNIVERSITY OF LAW (MSAL) ANNIVERSARY
11-20 699
Abstract
Scientific development of the concept, systems and content of the principles of criminal proceedings has been carried out by scholars of the Department of Criminal Law and Procedure by the ELCI-MLI-MSAL since the first years of its existence. Young scholars of the Department continue their research in this sphere. Kipnis N. analyses the significance of admissibility of evidence to secure the principle of legality in criminal proceedings. He defends the rule on the asymmetry of admissibility of evidence, prejudicial meaning of a decision on admissibility of evidence made by a higher authority abolishing the judgment and committing the case for a new trial, develops criteria for the application of the institute of announcing the testimony of a victim and a witness during the trial with regard to the right of everyone to a fair trial. In writings by Nasonov S. the problems of implementation of principles of criminal proceedings are dealt with in the context of proceedings in a jury trial. The author describes such features of a jury trial as a high level of adversarial nature of judicial proceedings coupled with the participation of a judge in the process of proving; an exclusive right of jurors to evaluate the evidence examined in court. Works by Maksimova T. are devoted to the implementation of the principles of criminal proceedings at the stage of preparation for a trial. The author substantiates the stance on applying criteria of a fair trial to a preliminary stage of a trial. Papers by Panokina A. contain comparative analysis of the tasks of criminal procedure laws adopted in the Republic of Bulgaria and the purposes of criminal proceedings in the Russian Federation, the role of the principles of criminal justice in the mechanism of ensuring individual rights, concepts and types of procedural safeguards. Writings by Khokhryakova M. examine the limits of judicial proceedings in their relationship with the principles of criminal proceedings. The author notes that the limits of the trial determine the borderlines of implementing procedural functions in a trial and they are effective safeguards of the principle of adversarial proceedings; also, they contribute to the implementation of the principles of providing an accused with the right to defense and the right to a reasonable trial period.
PAGES OF HISTORY
21-26 445
Abstract
The article deals with peculiarities of the form of legal acts in XVII century. The author demonstrates how, by means of a form analysis, we can determine which type Russian letters belong to, consider their structure and sustainable legal formulas that reflect the substance of an act, establish the order, time and place of letters' creation.
27-33 567
Abstract
This article is devoted to examination of the origin of the term "piracy", it contains different definitions and favors the concept that currently most closely reflects the essence of the phenomenon. The text of the paper provides a historical analysis of the development of piracy activities at the early stages of emergence of piracy and the study of ancient sources regulating the behavior of pirates. The authors thoroughly consider the Justinian Digesta including norms of Rhodes law of the sea, the law "On the prosecution of pirates", as well as pirate codes of conduct that then served as a basis for creating pirate codes of honor. Using the materials of the above mentioned sources, the authors suggest hypotheses why robbery at sea was not eliminated when it was only at the generation stage; they mention a connection between international maritime terrorism and piracy. The authors also draw a parallel between modern legislation regulating the activities of pirates and the rules of law that existed at the beginnings of their "craft." They suggest provisions with regard to imperfections of the existing legislative framework at the global level that are substantiated by statistical data and examination of specific legal gaps of the existing regulatory acts. The authors conclude that nowadays combating piracy is ineffective, identify main reasons of such a situation and suggest measures to alleviate a problem.
THE THEORY AND PHILOSOPHY OF LAW
34-37 381
Abstract
By now, iIn the Russian legal science we can determine a lot of types and categories of suspensions, but, nevertheless, there is still no unified classification of these means of legal regulation. To generate a unified understanding of this institution it is necessary to structure and organize the most relevant types of suspensions in a single list based on specific features of suspensions, as well as their inherent characteristics.
STATE POWER AND LOCAL SELF-GOVERNMENT
38-47 515
Abstract
In the paper the author attempts to explore and determine peculiarities and constitutional features, drafting practice, as well as the role and importance of such an instrument as an explanatory note to a draft law in the system of constitutional law of Russia and a number of foreign countries. The relevance of the chosen theme is determined by many factors, but above all, by an active pursuit of the right to legislative initiative with regard to the powers exercised by the subjects, which leads to drafting a great number of new laws. However, such a rapid and aggressive pace of lawmaking where a state is trying by all means with the assistance of the legal regulation mechanisms to consolidate the increasingly wide range of public relations, noticeably affects the quality and effectiveness of legislative novels. Also, examination of legal issues and practical problems associated with regulation of drafting (a structure and content) an explanatory note is relevant because existing legislation contains no rules governing the process of drawing up this document; in addition, in the domestic doctrine of constitutional law in Russia the object of this paper has not been sufficiently researched yet. The article is prepared on the basis of an analysis of existing regulatory legal acts, modern law literature and jurisprudence using methods of scientific knowledge applied by the legal science, in particular a comparative law method that has allowed to reveal different approaches to the legal regime of an explanatory note in the domestic legislation, as well as some foreign countries (Australia, Belarus, the United Kingdom and Canada).
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
48-53 440
Abstract
The article deals with a number of issues relating to human resources formation in the law enforcement service system, namely - selecting of candidates and their undergoing special vocational training. The object of a research is the prospects for improvement and development of human resources when implementing anticorruption policies directly in a penal (correctional) system of the Russian Federation. The subject of the research amounts to suggestions for the selection and staffing the penal (correctional) system by highly qualified specialists, their continued service and legal education, as well as vocational training in anticorruption matters.
54-62 601
Abstract
The article discusses new methods and forms of regulation of innovation activity on accordance with the provisions of administrative law: project management, agreements in innovations, and rules applied to participants of innovative activity (innovators). The author highlights the need to systematize innovative legislation and to adopt necessary by-laws. The paper alleges that there is a new set of special subjects of administrative law -namely, territorial structures vested with public powers. The author also suggests a scheme of administrative and legal regime of state regulation of innovation activity. The author describes peculiarities of this legal regime and makes predictions about the prospects of its further development.
FINANCIAL LAW
63-69 920
Abstract
The article is devoted to the problem of determining the status of financial law rules governing state social off-budget funds within the framework of financial law under modern conditions. Scholarly opinions available in the financial law science are determined by different views concerning the place such funds take in the financial system of the Russian Federation. Authors, supporting the legislator's approach under which state social off-funds are included into the budget system of the Russian Federation, refer financial and legal rules governing their formation, distribution, and functioning to the institution of budget law. The author of the article favors a more common view about the status of the funds as a separate element of the financial system and the existence of an independent structural subdivision of the financial law system governing their budgets. While taking into account a dual character of understanding of state social off-budget funds, it is proposed to distinguish between financial and legal regime of budgets functioning (in the physical sense) and financial and legal regulation of the activities of these funds as non-profit unitary organizations (in the sense of organization). In the first case, we talk about an independent financial and legal institute governing relations in education, distribution and functioning of the budgets of state social off-budget funds as an independent link in the financial system. In the second case, we should bear in mind that we deal with a combination of financial and legal norms of different sub-branches and institutions that regulate financial activity of administrative bodies of state social off-budget funds.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
70-75 496
Abstract
The article is devoted to such a topical issue of bankruptcy of individuals as discharge of obligations in case of voluntary bankruptcy (Para. 3, Art. 213.28 of the Bankruptcy Law). The author analyzes provisions of bankruptcy law that govern the procedure of cancellation of debts. The author identifies and explores the mechanisms of overcoming cases when such a right is abused.
76-83 668
Abstract
The article analyzes the possibility of recognizing the prejudicial importance of judicial rulings in cases concerning administrative offenses in civil proceedings. Courts of general jurisdiction deal with cases that involve administrative offenses only in accordance with the Administrative Offenses Code of the Russian Federation. The author also addresses shortcomings of legal regulation of proceedings in administrative cases, indicates their accusatory character and lack of adversarial principles and objective truth. On this basis, it is concluded that these activities cannot be attributed to justice, and, thus, there are no reasons for giving prejudicial value to judicial rulings within the framework of administrative proceedings. The author subjects to criticism Paragraph 8 of the RF Supreme Court Resolution dated December 19, 2003 "On the Court Decision” that provides for the opportunity to recognize prejudicial value of judicial rulings in cases involving administrative offenses by way of analogy with prejudicial nature of court sentences. The author substantiates the conclusion that the absence of such a provision in the RF Civil Procedural Code is caused by deliberate omission of a law-maker. This problem resolution is possible by means of improving proceedings in administrative cases that are regulated under the Administrative Offences Code of the Russian Federation. In this regard, in order to ensure a sufficient level of assurance of safeguards the author analyzes the RF Draft Administrative Offenses Code and the Draft RF Administrative Responsibility Code.
BUSINESS AND CORPORATE LAW
84-93 1095
Abstract
The article deals with the problem of the legal nature of bodies of a legal entity that is defined by the author by means of a category "legal tool". The author identifies the features that characterize a body of a legal entity as a legal tool and features arising in the course of its application by subjects of civil law. A distinction is made between "a body" and "a person performing the functions of a body". Given that, a legal entity is considered as system integrity consisting of three interrelated elements: goal setting (target element of a system), physical entity (volitional element of a system) and property. Treating a body as a legal tool is based on a presumption that a legal entity possesses its own will (Paragraph 2, Article 1 of the RF Civil Code) the source of which is physical entities (founders, holders, members, etc.). The process of realization of legal standing of a legal entity via its organs has been analyzed in terms of economic societies. A new version of Article 53 of the РФ Civil Code has been suggested.
94-101 1114
Abstract
The article considers the concept of "social entrepreneurship”, "social entrepreneur” as a new element of entrepreneurial activity in Russia. The author gives emphasis to the lack of legal regulation of social entrepreneurship and peculiarities of the development of this kind of business in modern conditions. The article analyses the attempts of legislative regulation and implementation of state measures of support of a new type of entrepreneurial activity, as well as forms of non-state support of social entrepreneurship performed with the help of the "Our Future" fund, Agency for Strategic Initiative, etc.
LEGAL PROTECTION OF INTELLECTUAL PROPERTY
102-110 556
Abstract
The article is devoted to the study of the most recent changes of the civil legislation of the Russian Federation in the sphere of know-how management. It is noted that narrowing the information protected as a knowhow contradicts the General principles of the TRIPS Agreement allowing the possibility of expansion (but not narrowing) of the scope of protection exposed by this agreement in national legislations of countries-participants of the agreement. However, the loss of the binding nature of trade secrets regarding know-how and transformation of the latter into a form of reasonable measures to respect the confidentiality of know-how is positive, as it contributes to a more complete harmonization of the Russian legislation with the provisions of subparagraph (c) of paragraph 2 of article 39 of the TRIPS Agreement. In addition, the most important (both practical and theoretical standpoint) result of changes under consideration is the fact that nowadays the legal owner of the trade secret may be a natural person, not having the status of an individual entrepreneur.
LABOR RELATIONS AND SOCIAL SECURITY
111-117 2921
Abstract
The article describes the criteria for the differentiation of legal regulation of relations on social welfare of the population. On the basis of the approaches suggested in the science of social security law, the author provides classification of such criteria, and proposes a definition of the concept "criterion of differentiation of the legal regulation of relations on social security". Differentiation of legal regulation in the sphere of social security is analyzed based on the example of medical aid, regulation of which takes into account a variety of factors. In particular, the type of medical care, conditions and forms of delivery are taken into account. Besides, the number of criteria for differentiation include subjective criteria, namely professional status of the patient, his age, his state of health. The subjective differentiation of legal regulation is analyzed in greater detail based on the state social welfare. The author considers the legislature on social protection of the citizens, affected by the exposure of radiation. As a result, it is concluded that subjective differentiation in social protection law is complex by nature, since in the process of the provision of social welfare measures, the various legal facts are taken into account, and for specific subject categories there may be further differentiation.
118-123 396
Abstract
An opportunity to conduct business through a group of legal entities (a group of interdependent employers) provokes possibilities for infringement of basic workers' rights to representation and collective bargaining. Fragmentation of essentially a single working team significantly reduces the effectiveness of mechanisms of influence exercised by employees on an employer. The problems associated with the need to determine an actual employer in collective labor law can be expressed in the need to determine the appropriate level of negotiations, the question concerning the limits of distribution of collective agreements, the legality of conducting solidarity strikes. Legislation and judicial practice of many countries, as well as some normative acts adopted at the EU level, provide for guarantees of rights of workers in this field. As a result of examination of international experience the author concludes that it is necessary to make amendments in the labor legislation of the Russian Federation aimed at bringing the regulation of relations connected with labor relations within the framework of groups of interrelated employers in compliance with the most advanced foreign practices.
CRIMINAL LAW
124-130 1377
Abstract
The article considers the main stages of development of the criminal law of the Republic of Tajikistan, which includes responsibility for smuggling. The article lists the main legislative acts which are the basis for the State to prevent illegal receipt of goods into the territory of Tajikistan, as well as statistics that reflect the dependence of one category of crimes on the state and changes in criminal legislation. Different ways to commit smuggling depending on the subject of transport are analyzed.
131-137 560
Abstract
The article analyses the doctrinal interpretation of coercive measures of medical nature that are given by the scientists in the scientific and educational literature on criminal law, as some common understanding of the legal nature of these measures will help to establish the fact of the termination of formation of Institute of coercive measures of medical nature, as held by the Russian Institute of penal legislation as well as to develop measures to improve the criminal law if these interpretations differ.
CRIMINAL PROCEDURE
138-146 1202
Abstract
The basis for the study of review of judgments in Ancient Greece and Ancient Rome was the assignment of their criminal procedure for indictable type, which corresponds to a certain model of appeal arising from the content of the historical type of criminal procedure. This study made it possible to conclude that the appeal arose originally as a means of political struggle (for example, the plebeians against patricians) rather than legal institution of review of judgements. In many cases, the people's Assembly is the highest judicial body, empowered to appellate decisions. Subsequently, the appellate authority of the people's Assembly shall be transferred to other government authorities. Officials carrying out the function of the appellate court, carry out, as a general rule, other public functions. The right to appeal is vested not only in the party to the trial, but in any other citizens. The review of judgments is characterized as a "Court with the judge”, but not as a continuation of the dispute between the parties.
147-152 689
Abstract
The historical aspect of the formation and development of the jury trial in Russia creates preconditions for analysis of "pluses" and "minuses" of this form of proceedings. The study of the phenomenon of the jury trial in historical perspective enables you to trace the process of its formation and development throughout the Russian Empire and its outskirts. The catalyst for the transformation of the judicial system reform became the year 1864, when a new form of proceedings - a jury trial - became the center of the process. The analysis of the stages of formation and functioning of a jury trial reveals its ups and downs, which consisted in changing the competence of jurors or requirements to candidates to the jurors. The introduction of a jury trial in the Stavropol province was accompanied by a "clash" of supporters and opponents of this form of proceedings. Almost half a century delay of the introduction of the jury system in the Stavropol region was due to many reasons, having political and social connotation.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
153-159 480
Abstract
The article is devoted to the peculiarities of the forensic expertise on diagnosing conceptual characteristics of a personality based on speech recordings. An illustrative list of offences which require the assignment of such a type of phonoscopic expertise is defined. The article determines the term "conceptual characteristics", used in the judicial phonoscopic examination, indicates the difference in the scope of this notion, used in forensic phonoscopic examination, and judicial gabitoscopy. The author points to some errors that are found in the orders (rulings) on the appointment of a judicial phonoscopic examination of conceptual personality characteristics. The issues that are placed before a judicial expert when assigning such forensic examinations are defined.
160-169 476
Abstract
This article considers the socio-technological factors in the production of investigative activities (interrogation and confrontation) in investigation of cyber crimes and reveals the dependence of choosing different tactical methods of questioning and confrontation of the cyber criminal on: its level of technical competencies and custom skills; motives for cybercrime; differentiation of motives depending on the location of the crime; offender information posted on social networks about himself; psychological state and (or) disease information, computer phobias.
170-176 512
Abstract
This article considers non-procedural forms of use of special knowledge, attempts to analyze scientific positions of scientists on the question of their use in the detection and investigation of crimes. The author points out some discussable points and suggests his view on the issue. Based on the analysis of the views of the scientists involved in the study of the use of special knowledge, study and generalization of investigative and judicial practice, the author identifies three non-procedural forms of participation of experienced persons: reference and consulting activities, preliminary studies, the participation of a specialist in investigative activities suggested in the detection and investigation of crimes involving illegal production (catch) of aquatic biological resources, committed by means of foreign ships.
EXECUSION OF PUNISHMENTS
177-180 397
Abstract
The article describes the current state of implementing the labor of convicted persons in places of detention and makes an analysis of reasons preventing from increasing the efficiency of the productive sector of the penal system.
INTERNATIONAL LAW
181-189 446
Abstract
The article considers the role the court plays in the development of regional integration. The author evaluates the factors that can positively or negatively affect the role of bodies of international justice in the process of regional integration. The role of the courts in strengthening integration is more significant when there is a willful movement to integration, inter alia, in the form of political decisions.
190-196 633
Abstract
The article deals with the legal regulation of confessions and execution of the judicial decisions of foreign state courts in Russia. Based on the analysis of the rules of the Civil Procedural Code of the RF, Administrative Procedure Code of the RF, international documents and doctrines, the author proves the illegality of recognition and execution of the foreign judicial decisions on the basis of "the principle of reciprocity", which courts often interpret as one of the universally recognized principles of international law. However, the needs of Russian individuals and legal entities entering into cross-border relations, as well as the need to strengthen international cooperation demonstrated, according to the author, the need to adjust to the existing legal regulation. According to the results of the research the author formulates conclusions on the need to further improvement of Russian procedural legislation concerning the widening of the range of foreign judicial decisions executed in the Russian Federation through the inclusion of reciprocity as a basis of recognition and execution of such decisions. In order to achieve legal certainty, the author proposes to implement legislative specification of the order of establishing reciprocity.
197-201 584
Abstract
The article is devoted to the study of variants of the definition of "standard" and "international standard” developed in international law with the emphasis placed on the World Trade Organization as an organization that supports their active use.
COMPARATIVE LAW
202-215 667
Abstract
The article notes that in the system of inter-budgetary relations in Germany the central part is taken by financial equalization, understood as the distribution of power, income and expenditure between different levels of power in the State. The author analyses the legal basis for a system of financial equalization in Germany based on the norms of "Financial Constitution", its goals and objectives, as well as the practice of the Federal Constitutional Court on these issues, theoretical views of German scientists on the place and role of financial equalization in the budget law. It is noted that it is of crucial importance to secure the main principles of financial equalization in the budget legislation of the country, each of which is discussed in the article. Conducting of comparative-legal analysis of financial equalization in Germany and Russia allows us to identify common and special use of this mechanism, to formulate particular objectives for further development of the budgetary legislation of the Russian Federation.
216-227 913
Abstract
This article is devoted to the banking system of the United States of America. In the course of the study the author highlighted the features of organization of the US banking system and its levels. The article examines the history of the creation of the Federal Reserve system of the United States, its structure, powers of the Board of Governors of the Federal Reserve, the legal position of the Federal Reserve banks. The article also spells out the types of deposit-taking institutions according to the legislation of the United States, the peculiarities of the legal status of the Federal banks and banks of the States, bank holding companies, associations and other subjects of banking.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)