No 3 (2017)
PAGES OF HISTORY
11-18 395
Abstract
The article is devoted to the discussions accompanying the creation of electoral system in Primorsk public formation before elections for an Provisional National Assembly in the Far East in the summer of 1920. The civil war in the Far East of Russia in its final stage (1920-1922) was characterized by competition of several state projects. The main parties to the conflict were completely dependent on the Bolsheviks Far Eastern Republic (FER), white Transbaikal and Primorye managed by regional zemstvos. It is in the framework of the Primorye statehood that provided the most developed parliamentary system of the period. However, the predominance of the Socialists in the National Assembly comparably affected its law-making process. Based on the protocols of the Commission on the drafting of regulations on the representative body, the author argues that constructed on the basis of the Socialists electoral system of Primorye fundamentally influenced the election results. Negotiated during discussions between Socialist and liberal lawyers, election legislation of Primorye contributed to the victory of the left forces under whose auspices and took place in the future work of the local Parliament.
19-27 672
Abstract
The article explores the evolution of such critical aspects of the category offence as an offence definition, types of offences and elements of an offence in XVII-XVIII centuries in the context of the most important heritages of law of the specified historical period - the Council Code of 1649 the Articles of War of 1715.
THE THEORY AND PHILOSOPHY OF LAW
28-40 799
Abstract
The article describes an autonomous approach to the understanding of corporate standards that amounts to an attempt to deny the Soviet approach to understanding corporate (local) rules, when the State act as the only one rule-maker. The author proves the legal nature of corporate rules and identifies their main features, gives a theoretical characteristic of corporate sanctions and their types, and also compares corporate and legislative norms. On the basis of the study, the author concludes that the theory of law should review a lot of questions the answers to which will let us talk about a paradigm shift in the science of law.
41-48 1126
Abstract
The article discusses the major challenges associated with the implementation of the State cultural and educational function, provides a rationale for government regulation of culture and education, describes main approaches to the definition of the function in question, and provides the author's definition. The article reveals the content of a cultural and educational function that includes, in the author's opinion, comprehensive state support of the culture development - literature, art, theater, and cinema - as well as state support for science, its natural integration into market conditions, support for the priority development of fundamental theoretical research and innovative technologies. The author highlights areas of activity of the State in the sphere of culture and education, as well as analyzes existing problems. The author substantiates the expedience of assessing the impact caused by the State exercising its cultural and educational function both in terms of management efficiency and satisfaction of the population with the quality of the services provided in these areas and the general situation in an educational sphere.
49-55 3977
Abstract
The article deals with the logical structure and the development history of the concept "natural law" (jus naturale) within the framework of the paradigm that preceded the New Europe history of European moral philosophy: Greek- and Latin-speaking periods. The author identifies practical-legal and theoretical-philosophical aspects of the concept of natural law. The author insists on the necessity to study the second aspect with a view to clarifying the general theoretical foundations of jurisprudence and ethics, as well as enhancing their interdisciplinary communication. The paper substantiates an approach to the analysis of the concept «natural law" in the light of methodology of the discipline "History of Concepts." The author briefly outlines the paradigm on which the study has been built. The article provides an analysis of contradiction of the concept «natural law" that was fixed in the so-called "discussion physis-nomos" (nature vs. an establishment) in ancient Greek philosophy. The author demonstrates the role of this contradiction in the development of the theory of natural law. He differentiates two lines of the development of the theory of natural law in accordance with two sides of this controversy: the theory of human nature (reasonable and social), on the one hand, and the theory of natural normativity (subject and object as the requirement of natural law), on the other hand. The author demonstrates the role of Greek philosophy and Christian theology in the development of these theories. He explicates the link of «natural law" with key concepts, provides its theoretical context: human nature, reasonable nature (natdra rationalis) is a natural "society" (societas) of a human, moral action (actus moralis, actio moralis), natural law (lex naturalis), divine law (lex divïna), and conscience (conscientia). A historical and philosophical context of the development of the theory of natural law is illustrated with a number of paradigmatic wordings borrowed from the works of the most significant thinkers that developed different sides of the theory -- from Aristotle to Hugo Grotius. The paper notes terminology and conceptual gap between antique, medieval and early New European moral philosophy, on the one hand, and modern humanities and social sciences, on the other. The author highlights the necessity to overcome it by means of analyzing philosophical foundations of ethical and legal thoughts defined in the philosophical tradition of natural law.
STATE POWER AND LOCAL SELF-GOVERNMENT
56-65 517
Abstract
The article discusses constitutional and legal aspects of the principle of equal access to municipal service in the context of main requirements for citizens entering the municipal service as defined by the Federal Law. The problem of identified and regulated requirements for admission to the municipal service is quite relevant. At the moment, sufficient attention is paid to entering the public service; however, municipal service, being derived from the first one, also requires a detailed analysis of each requirement separately. Restrictions on admission to municipal service constitute an integral part of protecting the constitutional order, rights and legitimate interests of citizens. The existence of certain territorial and ethnic peculiarities among the diversity of municipalities poses an important question about the distinction between requirements for equal access to municipal service under municipal law.
66-70 752
Abstract
The article carries out analysis of the place of the constitutional right to petition in the system of political rights taking into account doctrinal approaches, legal positions of the Constitutional Court of the Russian Federation and changes made in the Federal Law "On the procedure of considering petitions of citizens of the Russian Federation” in recent years. The author examines interrelation between the constitutional right to petition and political rights and freedoms. The author concludes that with respect to other varieties of political rights the constitutional right to petition acts as a universal prerequisite for their implementation or protection.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
71-78 445
Abstract
The article substantiates criteria applied to differentiate public services and other publicly important activities into two opposite categories: administrative (non-economic) public services and economic (non-administrative) public services. Such an approach allows detecting differences in the ways organizations provide services. The author examines key features of exercising state control in the sphere of providing economic public services (transparency of the process of selecting service providers; quality assurance services) inter alia in the light of adoption of the law on the foundations of State and municipal control. Taking into account the relevant law enforcement practice, the author raises disputable practical questions and suggests ways to address them.
79-86 637
Abstract
The article "Theoretical and Legal Foundations of the State Control in Russia (administrative and financial aspects)” was prepared due to the relevance of the issue of developing a management system of public finance and non-public finance, as well as State control over the budget. The authors attempt to trace the origins of the procedure per se in the life of different States, as well as initial forms of an activity that, in the opinion of many researchers, instituted the State control. The article defines the concept of control, provides brief description of scientific views on it, as well as the comments of prominent jurists regarding the essence of the concept and other important aspects. The authors briefly describe the structure of the system of state control including the Federal level and the level of a constituent entity of the RF. The article highlights jurisdiction of main bodies exercising powers in this sector such as the Presidential Administration (Government Accountability Office); The Audit Chamber of Russia, regulating and accounting authorities, the Ministry of Finance of Russia, the Federal Treasury of Russia, and the RF Prosecutor General's Office. It also provides an exhaustive list of the elements of administrative offenses aimed at ensuring the rule of law in the sphere of State control. The author describes methodical approaches to the compilation of practices aimed at detecting offences associated with activities in this field and to their classification. This article may be of interest for students attending courses of administrative law, financial law, public service and public administration, in particular the system of State control (supervision); furthermore, the article may be of interest to researchers and other persons directly involved in the development of the procedures and instruments by means of which the Government regulates the area of public finance.
87-93 403
Abstract
The article substantiates the difference between pre-registration for obtaining public (municipal) services and pre-registration for personal reception of citizens. The author analyses regulation and practice of the work carried out by public authorities to organize pre-registration for appointments. The author highlights and analyzes three ways of registration for obtaining state and municipal services: 1) pre-registration through the Internet; 2) pre-registration by phone; 3) getting the coupon when using an electronic queue management terminal The author scrutinizes the specificity of pre-registration when implementing powers not classified as public (municipal) services. According to the results of the analysis: 1) the author's definition of pre-registration is given; 2) differences in ways of pre-registration are revealed; 3) the place of pre-registration in the procedure of providing a service is determined; 4) the conclusion concerning the necessity to treat preregistration as a specific type of petitioning is made; 5) proposals for providing legislative regulation of the institute of preregistration in accordance with the meaning of Articles 2, 18 and 33 of the Constitution of the Russian Federation are made.
FINANCIAL LAW
94-99 465
Abstract
The article discusses Russian and international approaches to determining tax residency, as well as the criteria underlying the definition of tax residency of organizations. The authors examine recent changes in the Russian tax legislation related to determining the residency of organizations. The paper provides comparative law analysis of Russian and international approaches to determining tax residency of organizations.
100-107 438
Abstract
The article is devoted to the peculiarities of the legal status of State Corporation Rosatom as the party to financial legal relations. On the basis of the performed research work, the author concludes that the State Corporation Rosatom is a party to the vertical financial legal relations as a subordinate (passive) actor (taxpayer, fiscal resident, an object of financial control); vertical financial legal relations as an imperious (active) subject empowered by the State to form, distribute (redistribute), use and monitor public finances in the public interest (main manage of budgetary funds, subject of financial control); and horizontal financial legal relations as one of equal parties to the public contract in the financial law. The author also finds that the State Corporation Rosatom has a special legal status that allows it to combine the functions of managing the nuclear industry and solving economic tasks.
BANKING SYSTEM AND BANKING ACTIVITY
108-115 441
Abstract
The article discusses the issues of legal regulation of the partnership banking -- banking operations that are based on the principles (standards) of Sharia. Implementation of the instruments of partnership banking can lead to increase in the banking sector of Russia. At the same time, currently the issue of the possibility of introducing these instruments into the banking legislation of the Russian Federation is on the agenda. In case of a positive decision on this issue, it will be required to intensify techniques applied for harmonization of banking legislation and regulatory acts of the Bank of Russia in order to organize banking risks management, effective implementation of banking operations and transactions in integration processes of the single market formation for banking services.
116-121 629
Abstract
The article is devoted to the study of an Islamic financial instrument -- mudarbah, whereby Islamic banks raise funds. In its legal nature the mudarabah contract is similar to the contract of trust management of property. However, the named legal instruments have substantial differences that the author highlights in the article.
122-126 471
Abstract
This article is devoted to the standardization of Islamic financial transactions. Currently, Islamic financial standards contain concepts that can be easily and effectively convey Russian analogues (such as "mudarabah" contract may be classified as trust), and specific terms and concepts that have no direct counterpart in the Russian common equivalent (such as "sukuk", "best fulfilment of obligations" "deliberate postponement of debt repayment"). All these terms and concepts were formed under the influence of a number of factors, ethical-legal being a key one. This article discusses examples of such concepts and terms with an explanation of their particularities and practical examples.
CIVIL AND FAMILY LAW
127-142 1309
Abstract
On the basis of retrospective analysis of the Russian legislation (pre-revolutionary, Soviet and modern) and doctrine the author infers essential characteristics of deception (fraud) in law. In order to optimize the interaction of private and public law, as well as the application of civil and criminal law the author carries out a comparison of the fraudulent acts under Article 179 of the Civil Code and Article 165 of the Criminal Code. Alongside with current legislation the author uses judicial acts and scientific research. Special attention is given to the parties of legal relations, including the concepts of "owner" and "another property owner" in civil and criminal law; the grounds of liability, including the fact of injury causation; forms of causing property damage by deception; the notion of "property" in civil and criminal law; delimitation of deception and delusion. As a result, the author reveals similarity of all elements of offences in part of wrongfulness, subjective side of the crime, the intersection of concepts in civil and criminal law; trends in the development of such legislation as narrowing the range of elements in Article 179 of the Civil Code, decriminalization of a number of elements that were previously enshrined in Article 165 of the Criminal Code.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
143-153 3897
Abstract
The article identifies background, structure and significant aspects of scientific knowledge of interrelation between civil procedure law and material law in the Russian legal system. For this sectoral procedural science their account makes it possible to disclose the nature and identify the expressed manifestation of such interrelations, meaningful during the study of procedure scope of proceedings through the subject of judicial activities, taking into account its substantive specificities. This focus of research is illustrated by examples of the modern state of regulatory and judicial application.
154-159 473
Abstract
The article is devoted to the identification of certain problematic issues and deficiencies of article 199 of the CPC of the RF, as amended by federal law No. 20-FZ of 04.03.2013. The author provides comparative-legal analysis of the procedural rules governing the institute of "summarized" judgement; some issues on appeal are considered; problems of legal regulation of tagged institutions; suggestions on the improvement of the civil procedure law are proposed.
LABOR RELATIONS AND SOCIAL SECURITY
160-167 685
Abstract
This article examines the new chapter of the Labour Code of the Russian Federation concerning the features of management of employees assigned by the employer to other natural or legal persons under the Provision of Personnel Agreement. The publication examines the essential conditions that must be present in a civil law contract between legal and natural persons, as well as the conditions that must be included in the content of the employment contract between the employee and the employer, directing it to another employer (the receiving party) and the additional agreement to the contract. The work also highlights the shortcomings of existing labour legislation in the field of labour management of assigned workers (unsettled questions - time of prior warning of the termination of the employment contract on the initiative of the employee before the end of the performance; on the order (and the opportunity) of the employer (the receiving party) of transferring of assigned employee to another job in the event of an accident, disaster, etc.; the wages a private agency must pay the staff in the case of unilateral termination of the host or the directing side of civil-legal contracts).
CRIMINAL LAW
168-174 964
Abstract
The article deals with topical issues of criminal and administrative liability for the violation of human and civil rights and freedoms on the basis of sex, race, nationality, language, origin, property and official status, place of residence, attitude to religion, convictions, membership of public associations or any social groups according to the legislation of the Russian Federation and other States. The author analyzes the changes made to the Art. 136 of the Criminal Code of the Russian Federation, the state of modern judicial practice of this category, and shows the relationship of elements of criminal discrimination and administrative offences provided for in Art. 5.62 the Code of Administrative Offences.
175-182 983
Abstract
Criminal responsibility for organizing the activities of a terrorist organization and involvement in such activities in the Russian Federation is set in Art. 2013, 2012. During the past three years this norm (art. 2055 CCRF) has seen the changes in its wording twice. Instability of the Act is also reasoned by the lack of clarification on the application of a number of important provisions of the new rules. In this regard, the proposal is made on the use of the relevant provisions of the plenum of the Supreme Court of Justice of 28/06/2011 # 11 "On judicial practice in criminal cases involving crimes of extremist orientation." This is justified by the fact that the core federal law ("On counteracting extremist activities”) terrorist activities has been recognized as "a kind of extremist activity". When considering controversial points of view about which variety groups (listed in article 35 of the CC) is a terrorist organization, the author concludes that the terrorist community and terrorist organization, in fact, are the same thing. Analyzing the profile of federal law standards, the author concludes that in drawing up the list of offences, which are the basis for the recognition of an organization as a terrorist organization, it is important to indicate this condition as their commission with "terrorist purposes".
INTERNATIONAL LAW
183-192 3547
Abstract
The article analyses the international legal guarantees of the rights of foreign investors. International legal guarantees can be classified according to the volume of their rights as General and Special Warranty. General international legal guarantees are guarantees of human rights in the area of civil and political rights and economics, social and cultural rights. These guarantees are the universally recognized basic international legal guarantees to be followed by States. International guarantees of the rights of foreign investors can be called Special in respect of general international legal guarantees as they have a special subject of regulation - obligations of states receiving foreign investment to ensure protection of property rights of foreign investors. International legal guarantees of the rights of foreign investors, as the special guarantees, are contained in international multilateral and bilateral agreements and include guarantees of property rights of foreign investors, compensation, insurance, guarantees for the settlement of international investment disputes, but these guarantees are aimed at ensuring protection of property rights of foreign investors. It should be noted that international legal guarantees for foreign investors are the legal obligations of recipient states, enshrined in international multilateral and bilateral agreements, extending its action against foreign investors, through which foreign investors have an opportunity to exercise their rights and legitimate interests in the sphere of their ownership investments in recipient states.
193-198 2517
Abstract
New biotechnology has not only expanded within the scientific spheres of research biologists and physicians, but also generated a lot of ethical and legal issues, including abortion, euthanasia, surrogate motherhood, implantation, transplantation, the use of new reproductive technologies and others. Universal Declaration on Bioethics and Human Rights obliges Member States, including the Russian Federation to use advances in biological and medical sciences, the newest technologies on the basis of respect for human rights and fundamental freedoms. In the article, it is proposed to consolidate the fundamental principles of international law in the field of bioethics in the Constitution and legislation of the Russian Federation, in particular by providing for the protection of the human embryo. Taking into account foreign experience, achievements of medical science, the proposals on the protection of Russian life and human health even before his birth, during fetal development, it is necessary to establish liability for injury, damage to health or death of a human embryo.
INTEGRATION LAW
199-205 496
Abstract
The author analyzes major legal mechanisms and scope of military cooperation between the Russian Federation and the Republic of Belarus, the legal aspects of cooperation in the field of armaments, the legal basis for the establishment and functioning of the regional military forces of Russia and Belarus. The article also examines the ratio of international legal obligations under the Treaty on the Union State, the collective security treaty, the Treaty on the Eurasian Economic Union.
206-211 405
Abstract
The article is devoted to the analysis of acts of the European Union, establishing a system of professional recognition. Special attention is given to the General system of recognition or an opt-in system of recognition. Within the framework of the General system for the recognition of legal relationships is emerging, where the applicant has the right for recognition and the relevant state organs are obliged, if there is a required level of qualifications, to recognize this qualification. The latest European Union legislative acts establish the substantive and procedural aspects of the recognition system. It can be compared to a manual system of academic recognition. The latter has a number of shortcomings; the analysis of the general system of professional recognition in the European Union can be used to modify the system of academic recognition.
COMPARATIVE LAW
212-222 487
Abstract
This article presents a systematic review of legal regulation of relations on protection of competition against the acts of organs of State power and local self-government in Russia and some foreign jurisdictions. Justifying the position according to which the legal regulation of these relations is not an exclusively Russian legislation peculiarities and peculiar to a number of foreign countries. The author reveals similarities and differences in approaches to consolidate the legal norms; the elements violations of antitrust authorities in Russia and other countries are considered. The author suggests possible ways of development of the domestic legislative framework. Attention is given to the provision of state (municipal) preferences. The author justifies the necessity of fixing in the Antitrust Institute preliminary examination of draft normative legal acts (non-legislative) organs of State power and local self-government with a view to reducing the number of violations by the authorities, and prevent such abuses in the Russian Federation.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)