No 1 (2017)
FEATURE ARTICLE XI KUTAFINSKIE READINGS
11-14 399
Abstract
The article highlights the major reports that were discussed during the Plenary Session of the VI Moscow Legal Week held at venues of the Lomonosov Moscow State University and the Kutafin Moscow State Law University (MSAL)
15-19 1001
Abstract
The article provides an analytical overview of the results of the work of the Panel "The constitutional Law Problems of Respecting Personal Rights and Freedoms in the Modern World" and the Round table "The Bygone Epoch and New Challenges of Constitutionalism" held by the Department of Constitutional and Municipal Law at the Kutafin Moscow State Law University (MSAL) within the framework of the III Moscow Legal Forum and XI International Scientific Conference (Kutafinskie Readings).
20-27 493
Abstract
The article highlights the results of the scientific discussion of current issues of exercising rights and freedoms of an individual in the field of labor and social security on the basis of proceedings of the Joint XVII International Scientific Conference of the Law Faculty of the Lomonosov Moscow State University and the XI International Scientific and Practical Conference "Kutafinskie Readings" held by the Kutafin Moscow State Law University (MSAL).
28-32 619
Abstract
This article gives an overview of the Civil Procedure Panel meeting named "Protection of Human Rights and Freedoms in the Modern World: Russian and foreign experience" held within the framework of the XVII Annual International Scientific and Practical Conference held by the Law Faculty of the Lomonosov Moscow State University held by "the Theory of the State and Law" Panel (MSAL). The article overviews the main reports of the Conference participants that covered different directions of the development of the civil procedure science in modern conditions.
33-38 563
Abstract
The article deals with the main provisions of the reform of the civil law and legislation of the Russian Federation as applied to civil liability as a central theme of the Round table "Changes in Civil Liability Jurisprudence" held on November 30, 2016 within the framework o the VI Moscow Legal Week. Several years have passed since changes to the Russian law of obligations have been introduced. During this period of time the civil theory and law enforcement practice on several disputable questions have been developed. The article describes the main aspects of the reports of the Round table participants devoted to theoretical and practical problems of the civil law reform, in particular, issues related to the subjects and peculiarities of civil liability, the role of judicial practice in reforming and interpreting civil legislation with regard to liability, peculiarities of civil liability in French civil law, constituent characteristics and rules of applying pre-contractual liability, the scope, size and order of compensating damage inflicted in the sphere of criminal proceedings.
39-42 433
Abstract
This article gives an overview of the work of the Round table "The Role of the State in ensuring the rights of an individual: Russian and foreign experience" held by "the Theory of the State and Law" Panel at the XVII Annual International Scientific and Practical Conference "Protection of Human Rights and Freedoms in the Modern World" organized by the Law Faculty of the Lomonosov Moscow State University and the Kutafin Moscow State Law University (MSAL).
43-47 419
Abstract
The article gives an overview of the meeting of the Financial Law Subpanel within the framework of the XVII Annual International Scientific and Practical Conference held by the Law Faculty of the Lomonosov Moscow State University and the Kutafin Moscow State Law University (MSAL).
THE THEORY AND PHILOSOPHY OF LAW
48-54 295
Abstract
On the basis of sociological research methods the article provides insights into the views of the representatives of legal profession with regard to the factors contributing to professional success. The information provided represents the results of questioning 1200 lawyers with different work experiences, gender, as well as the professional sphere of activity.
PAGES OF HISTORY
55-62 1224
Abstract
The article examines the system of religious crimes in the context of the Code of Penal and Correctional Punishments of 1845 as an ancient law encapsulating the process of development of the legislation and law enforcement practice of the pre-Soviet stage of the State development. The author highlights the differences of that group of acts as compared with assaults on faith enshrined in the Sobornoye Ulozhenie of 1649 (the Council Code of 1649) and in the Artikul Voinskiy of 1715 (the Articles of War of 1715) and draws general conclusions.
STATE POWER AND LOCAL SELF-GOVERNMENT
63-72 652
Abstract
The article discusses the issues of modern constitutional and legal regulation of the development of the system of public authorities. The author makes analysis of the concepts used in legislation. On the basis of correlation of the principles of these bodies formation with legal and institutional foundations of the system of state and municipal services in the Russian Federation, the author distinguishes categories of organs and offices that explain the system and structure of the organs of state power and bodies of local self-government in the Russian Federation.
73-79 446
Abstract
This article analyzes the legal institute of preliminary registration as an element of personal reception procedures. The author examines legal acts with regard to preliminary registration of different public authorities (not only executive): its compulsory character, requirements to an application for personal reception of citizens, rules of responding to applications for preliminary registration. Conclusions made on the basis of the analysis are as follows: 1. Currently, preliminary registration is actively used and demanded by the population, but it is not provided for by any federal law, and its regulation is carried out under unrelated departmental acts. 2. A request for personal reception registration is actually a special kind of applications, and, accordingly, it should be treated in accordance with the provisions of the Federal Law "On the procedure of considering requests from the citizens of the Russian Federation;" however, this is not feasible, because it bureaucratizes and formalizes the procedure of preliminary registration. 3. Preliminary registration needs to be enshrined in a federal law as a specific category of requests that involves a summary procedure for its consideration and response (in the form of a notice informing about the time and place of personal reception by phone, email or SMS). 4. The paper reveals the tendency to use preliminary registration as a way of complicating the procedure of personal reception, for example, requiring preliminary registration as a compulsory (rather than alternative) condition of personal reception, or requiring excessive compulsory information to be submitted for preliminary registration. Accordingly, the author makes a conclusion with regard to the necessity to legislatively recognize a dispositive nature of preliminary registration when the citizen preserves the right to personal reception without preliminary registration, i.e. in the order "first come first served."
80-83 492
Abstract
The article discusses the problem of ensuring equal access of citizens to municipal service by means of competitive selection. When substituting municipal services positions in the municipality, an employment contract conclusion may be preceded by competitive selection during which a professional level of candidates for the office within municipal services, their compliance with the established qualifying requirements for the municipal service posts are evaluated. The analysis of scientific literature and legal framework allowed identifying the positive and negative aspects of competitive selection, assessing the current state of this mechanism, which will make it possible to determine the ways to improve it.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
84-91 497
Abstract
The Federal Bailiffs Service (FBS) exercises its functions within the framework of the administrative process. This state authority enforces courts decisions and other instruments of organs and officials. The form of such an activity of a state authority is called enforcement proceedings that are essentially administrative and jurisdictional. At the same time, during enforcement proceedings registration proceedings -- an optional activity of the FBS of Russia -- are carried out. The author classifies registration proceedings connected with the enforcement proceedings on various grounds and concludes that the specificity of registration proceedings as a form of administrative-procedural activities of the Federal Bailiffs Service amounts to interrelation and interdependence of enforcement proceedings with registration work.
FINANCIAL LAW
92-99 520
Abstract
The article deals with the contents of the Report of the Organization for Economic Cooperation and Development (OECD) on preventing inappropriate abuse of privileges granted under agreements for the avoidance of double taxation. The Report was made as the result of work within the framework of the BEPS Action 6 and contains recommendations on introducing additional anti-evasion rules by the states (restriction of exemptions, the main objective test).
100-108 920
Abstract
The article deals with the procedure of exercising financial control over the activities of educational and scientific organizations of the State. The author highlights that in the sphere of education and science state programs that are financed by substantial amounts of budgetary funds are implemented. Thus, the author points out at the necessity of the state financial control to ensure purposeful and effective spending of budget funds in the context of target performance-based budget allocation. The paper identifies features of the State financial control exercised over public programs. In addition, the paper discusses the issues of exercising financial control over educational and scientific organizations, in particular, those organizations that operate in this field in the form of public institutions. To this end, the author identifies specific characteristics of financial activities of budgetary, autonomous and state institutions and the ways to monitor them. Particular attention is paid to the analysis of the Budgetary Code of the RF where the author proposes to enshrine the legal definition of budgetary control. In addition, the author defines budgetary control of the sphere of education and science, differentiates such terms as: financial controls and financial monitoring.
109-115 458
Abstract
This article analyzes the distinctive features of the modern stage of development of financial relations in the Russian Federation directly associated with the formation of the model of federalism, the key and system-forming role of which as a set of constitutional and legal principles and rules of a federal state is currently of paramount importance for intergovernmental and fiscal relations. The author believes that a key factor in the formation of linkages between the federal budget, the budgets of the constituent entities of the Russian Federation and local budgets, the financial capacity of the respective levels of the government is their economic incentives through grants, non-tax revenue and, basically, income tax, characterized by vertical and horizontal balance amounts and tax obligations, as well as monitoring legitimate and expedient use of financial resources. This study provides an author's definition of fiscal federalism as a group of legal rules governing a particular kind of public relations that reflect the interaction of public and private finance in part of the accumulation, distribution and use of tax revenues and delineation of spending commitments between the elements of the budgetary system and appropriate levels of public authority. This conclusion stems from the analysis of the aggregate installed in the Russian Federation, the essential conditions of taxation, as well as characteristics and distinctive features in terms of approach to federalism as a political-legal, fiscal, economic and socio-cultural characteristics of federal State.
CIVIL AND FAMILY LAW
116-125 384
Abstract
The article is devoted to the analysis of the decisions of the Supreme Court of the Russian Federation in the sphere of application of the legislation of the Russian Federation on the contract system in the area of procurement. The article is based on the analysis of the legal reasoning by customers, suppliers and the monitoring bodies on disputes within the contract system. Special attention is given to the practice of preparing technical specifications by customers in part of description of the object of purchase. The work shows controversial issues of the ratio of enforcement of contractual obligations and of the antidumping measures, and provides examples of court cases on the issue of admissibility of documentation for the procurement of trademarks. The article presents a critical analysis of the practice of the Supreme Court of the Russian Federation regarding questions on the application of the electronic platform liability measures to the parties by an operator. On the analysis of the judicial practice the author formulates practical conclusions and recommendations aimed at developing common approaches to the application of the legislation of the Russian Federation on the contract system in the area of procurement.
126-131 788
Abstract
The article highlights and analyses selected issues of legislative regulation of transferability of objects of civil rights. The attention is drawn to the shortcomings of the legislative technique made in the formulation of Art. 129 of the Civil Code of the Russian Federation, its incompleteness and the contradiction with the relevant rules of special legislation. In particular, it is noted that there is some difference in the content of the term "transferability" in this and other legislative acts. The author shows the need to broaden the criteria limiting the transferability of objects of civil rights in transactions by special permission. The author puts forward possible solutions to these problems and contradictions. The article provides some critical remarks on the elimination of the rules on the treatment of seized objects from Art. 129 of the Civil Code, which, due to the Federal law of July 2, 2013 No. 142-FZ On Amendments to Subsection 3, Section 1, Part 1 of the Civil Code of the Russian Federation, are recognized to be limited in conveyance. In connection with this, the author proposes legislative allocation of non-transferable group of objects, which, according to the author, can fall into three categories: non-transferable objects by virtue of their inherent natural properties, indications of the law, or a seamless connection with a specific member of the civilian transactions. The article may be useful for researchers, teachers, graduate students, undergraduates, law students, as well as to all people interested in issues of civil law.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
132-141 414
Abstract
An analysis of procedural codes covering the issues of proof in administrative proceedings shows that the content of the category document is not unambiguous. The relevance of this issue is evident due to the lack of unified approaches to registration and evaluation requirements of different documents, which undoubtedly affects the process of proof and truth seeking in a court case at issue. To decide the problem, the article defines the term document, reveals its nature as a generic concept applied to certain types of evidence, manifests essential features of the document and possibilities to assess them.
BUSINESS AND CORPORATE LAW
142-150 516
Abstract
The article is devoted to the analysis of certain provisions of the Civil Code of the Russian Federation relating to corporate governance. The author notes the generally balanced approach of the legislator to the legal regulation of corporate relations, particularly in the progressive strengthening and weakening of mandatory basis with the dot regulation of issues related to the matter under consideration. However, considering the position of a legislator does not exclude the existence of different interpretation by the enforcers of the same laws. In practice, this has led to the formation of the opposing legal positions of judicial and non-judicial law enforcement agencies in part of the order for identifying decisions of companies' meetings. Causality of differences in enforcement approaches stems from different interpretations of the law and its understanding in general. It is possible to overcome arising controversies by means of constitutional principles of equality and justice that are addressed by the Constitutional Court of the Russian Federation when considering the cases by constitutional proceedings.
LABOR RELATIONS AND SOCIAL SECURITY
151-158 558
Abstract
This article analyzes the latest trends of convergence of labor legislation of the Russian Federation and Republic of Belarus in the conditions of occurring integration processes (especially on the examples of Community, the Union of Belarus and Russia, and now the Union State. Differentiation between two main ways of convergence of the national legislation is carried out: unification and harmonization. The article concerns the legal basis in part of the regulation of labour and associated relations, formed within the various integration groups with the participation of the Republic of Belarus and the Russian Federation. The author supports the idea of developing the overall concept, and possibly further convergence programme of labour legislation of the Republic of Belarus and the Russian Federation. The focus of the article is laid on the functioning of the Union State, the creation of a unified legal framework, including acts of secondary law, as well as issues on the standardization of labour legislation of the Republic of Belarus and the Russian Federation, the Federal States of coherent social policies. Suggestions on ways to further convergence of labour legislation of the Republic of Belarus and the Russian Federation are provided.
159-165 413
Abstract
This article identifies and describes the limitations established by labour legislation for the implementation of educational activities. The author made proposals to address the problems identified in the study, taking place in the employment of persons for the post of a teacher in an educational institution.
CRIMINAL LAW
166-173 718
Abstract
The article is devoted to the features of the subjective aspect of crimes set forth in Art. 184 of the Criminal Code of the Russian Federation. Analyzing them, the author concludes that a person may be held criminally liable only if acting with direct intention, since an offence is worded as similar to formal, when describing crimes a legislator pointed out the purpose thereof. When analyzing the intellectual and volitional elements of the direct intent, the controversy of many provisions, available in the literature, is indicated, and some authors' standpoints are summarized (for example, N.A. Lopashenko, S.V. Kuzmin), it is concluded that offender's awareness of the purpose for which he was given a kickback, and the desire to commit the act are not included in the elements of the guilt of the offence under consideration. The positions of scientists on the binding nature of the self-interested motive and special purpose are evaluated. The purpose of a crime under Art. 184 of the Criminal Code of the Russian Federation, is to ensure the desired outcome of competition in violation of the rules of the competition. Notably, for identifying the components elements of a crime it does not matter what actions will be subjected to unlawful influence on the outcome of the official sports competitions and if this happens.
CRIMINAL PROCEDURE
174-185 1405
Abstract
This article discusses the problem of apprehending a suspect detention in criminal proceedings. Based on the analysis of various approaches to the detention of a suspect, scientific discussions and resulting conflicts of criminal procedure law, the article provides a conclusion about the multifaceted, multi-level nature of this doctrinal and legal categories, its manifestation in four different roles: as coercive measures, as procedural combinations, as tactical operations and as a set of sensitive activities. Such an approach, according to the author, makes it possible to reconcile existing viewpoint and gives impetus to further consolidated the development of the theory and practice of detention of a suspect.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
186-192 517
Abstract
The article considers psychological characteristics of personality of the official person who committed an embezzlement through abuse of official powers in the budgetary sphere, and shows their importance for methods of investigation. The starting point in establishing the traces of a crime is knowledge of the objective laws of this type of a crime occurring due to the interaction of an embezzler identity and the way it occurred.
INTERNATIONAL LAW
193-202 1327
Abstract
The article highlights the problem of improving the Russian legislation in the sphere of human rights protection under the influence of the norms of international law. It is noted that the preferred way to implement international standards in the Russian legal system is the ratification of conventions, covenants, etc. and their subsequent implementation (transformation). Such things make it possible to most fully reveal the essence of these norms and to develop an effective domestic set of measures for the protection of human rights. The focus also made on the fact that among the elements of international law affecting the maintenance and development of national legislation in the sphere of human rights protection, a special place is occupied by the final judgments of the European Court of human rights. Despite the fact that in Russia, as in other countries of the Romano-Germanic legal family, judicial precedents are not considered a source of law, the legal positions contained in the final decisions of the European Court of Human Rights, contribute to the in-depth implementation of the provisions of the Convention on the Protection of Human Rights and Fundamental Freedoms of1950 into the Russian legislation. However, to date there is no universal mechanism for the implementation of approved and almost general measures aimed at execution of the judgments of the European Court of Human Rights.
INTEGRATION LAW
203-208 577
Abstract
The article analyses the ratio of the two legal categories - representation and democracy. The author substantiates the place of the principle of representative democracy in the European Union and individual EU law in labour law. The article describes the fundamental legislation in this area, an attempt was made to show the ratio of the mechanism of realization of representative democracy in the European Union as a whole and in labour law.
COMPARATIVE LAW
209-214 835
Abstract
This article is devoted to the study of Japan's banking system. This article contains a study of Japan's banking system and its legal regulation at the present stage of historical development. The work allocates the stages of development of the banking system in Japan, studies the particular licensing banking activities, consideres the legal status of the Bank of Japan. The author pays attention to the legal regulation of banking supervision in the country concerned.
LAW ENFORCEMENT
215-221 724
Abstract
The article is devoted to the issues of legal regulation of the status of a public prosecutor of the Russian Federation, the ratio of the provisions of the Constitution of the Russian Federation on the Organization and Activities of the Prosecutor's Office and the federal laws, regulatory acts of the subjects of the Russian Federation, bodies of local self-government, as well as on departmental legislation.
222-229 1413
Abstract
In article the concept and content of the organization of work of court, their ratio with concept and content of organizational support of activities of court is analyzed, the points of view of various scientists, including the author, concerning concept of judicial activities and the organization of work of court are given, and also prosecutor's office and other bodies realizing law-enforcement functions, its contents, structural elements the conclusion about importance of the correct understanding of the organization of work of court for enhancement of court practice and scientific researches in the field of judicial activities is drawn.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
230-236 354
Abstract
This article deals with cases of fisheries arising on the basis of mixed legal institutions with a predominance of private law instruments. It is shown that a basic legal fact of occurrence of (entrepreneurial) industrial and coastal fisheries, particularly in the fishing and fish farming sites serve different types of contracts. These include the agreement on quota share of production (catch) of living aquatic resources; water usage agreement of bioresources; agreement granting fishing area; fishing area usage agreement. Permission for extraction of water bioresources in the light of recent changes in legislation lost its fundamental value. As a result, there has been a substitution of public standards with private ones.
PERSONA
237-242 1533
Abstract
The article shows the approach of the practical application of the methodology of comparative law, for example, works of a particular scientist comparativist, whose research interests were general theory of law and constitutional law of the Russian Federation. The author analyses the application of such a comparative law research method as a legal matter in terms of concrete results, used in the field of jurisprudence.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)