No 6 (2017)
ТЕМА НОМЕРА: IV МОСКОВСКИЙ ЮРИДИЧЕСКИЙ ФОРУМ
11-17 324
Abstract
The paper highlights the main reports discussed during the Plenary Session at the IV Moscow Legal Forum held by the Kutafin Moscow State Law University (MSAL).
18-26 408
Abstract
The review covers the main points of the reports presented by prominent international lawyers on April 7, 2017, at the Scientific and Practical Conference "The Future of International Economic Law" within the framework of the IV Moscow Legal Forum (Kutafinskie reading). The review provides a brief description of the substance and the ways of how the problems of determining the subject, principles, structure and place of international economic law in the system of international law can be solved, its codification, teaching, the legal regulation of improving integration within the framework of EAEU, the implementation of the EAEU Customs Code, the role of judicial institutions in the development of integration processes, the relationship between international, regional and national levels of economic relations regulation, relations between international economic law and International Environmental Law, International Labor Law, International Fisheries Law, Human Rights, etc.
27-34 380
Abstract
The article containts information about constitutionalists from legal Russian and Belarus Universities, lawyers-practitioners, post-graduate students taking part in IV Moscow Legal Forum "Law and Economics: Interdisciplinary Approaches in Science and Education, during which the events of the Department of Constitutional and Municipal Law of the Kutafin Moscow State Law University (MSAL): "Constitutional and legal aspects of modern economic policy" (within the framework of the Expert Forum) and the Second All-Russian Constituent Assembly meeting dedicated to the Academician O.E. Kutafin ("Constitutional Law in Bachelor's, Master's and PostGraduate Studies") (within the framework of the Scientific and Educational Session) were taken. It sets out a short overview of the speeches. Summing up the author considers that the main purpose of the discussed theses of the Expert Forum is not only the necessity of development of constitutional legal provisions but increasing actualization of complex interdisciplinary approaches where constitutional and municipal provisions should coordinate with provisions of allied branches. Practical problems are also discussed such as defending cosial and economy rights. The discussion that took place within the framework of the Scientific and Educational Session showed that participants perceive ambiguously and unequivocally the decisions of educational management bodies in terms of competencies, requirements for educational results, rather frequent changes in educational standards and other issues. The exchange of views of constitutionalists at such a representative forum contributes to the development of common approaches to teaching state and legal disciplines, improving the quality of legal education.
35-40 354
Abstract
The paper covers the results of the scientific discussion of the main issues raised at the 106th Session of the International Labour Conference as reflected at the IV Moscow Legal Forum held within the framework of the International Scientific and Practical Conference "Innovations in the Development of Fundamental International Principles in the Field of Labour and Social Security", the International Round table "An Anti-Crisis Potential of Labour and Social Security Law", the International Round table "Public and Private Foundations in the Cross-Border Labour Regulation" and "Traditions and Innovations in Labour and Social Security Law" at the Kutafin Moscow State Law University (MSAL) in April 2017.
41-45 433
Abstract
The article provides an overview of the work of the Round table "Legal Regulation of the Economic Function of the Family in Modern Russia" held on April 6, 2017, at the Kutafin Moscow State Law University (MSAL) within the framework of the IV Moscow Legal Forum. The review outlines the main points of the reports devoted to contemporary theoretical and practical problems of the legal regulation of family proprietary relations facilitating the implementation of the economic function of the family. The reports of the Round table participants addressed such issues of Family Law as socio-economic and legal enforcement of alimony obligations, the balance of interests of family members and participants of civil transactions, formation of community property as exemplified by the legislation of Baltic countries, contradictions between the rules of constitutional and military laws in the sphere of securing housing rights of the family members of military personnel, the definition and legal protection of family secrecy, as well as proposals for family law improvement.
46-52 397
Abstract
The paper highlights the main aspects of the reports made at the Scientific Conference "The Reform of the Law of Obligations and the Russian Federation Economy Development" held on April 7, 2017, at the Kutafin Moscow State Law University (MSAL), as well as summaries of the participants' reports. The Scientific Conference was devoted to the results of the reform of the Russian Federation Law of Obligations in the light of the new course of the Russian economy development, current tendencies in the civilistic science and the law enforcement practice. Also, the author draws the readers' attention to the court practice that contains new approaches to the interpretation of the contemporary Russian Law of Obligations. In this regard, the acts of the Supreme Court of the Russian Federation were of particular importance for the speakers (for example, the Ruling of the Plenary Session °f the Supreme Court of the Russian Federation № 7 "On the application by the courts of certain provisions of the Civil Code of the Russian Federation concerning liability for the breach of obligations" dated March 24, 2016, the Ruling of the Plenary Session of the Supreme Court of the Russian Federation dated November 22, 2016 № 54 "On certain questions concerning the application of the general provisions of the Civil Code of the Russian Federation concerning obligations and their execution" During the Conference, the participants and moderators presented and analyzed the main areas of contemporary civilistic science with regard to theoretical and practical problems of the Law of Obligations in the light of the Civil Law reform.
53-57 381
Abstract
The article provides an overview of the Scientific and Practical Conference "Financial Law Instruments Applied for the Implementation of the Russin Economic Security Strategy" held by the Department of Financial Law at the Kutafin Moscow State Law University (MSAL) within the framework of the IV Moscow Legal Forum.
58-63 385
Abstract
The article provides an overview of the Round table "The Reform of the Civilistic Procedure and Justice in the Sphere of Economy" held by the Department of Civil and Administrative Court Proceedings at the Kutafin Moscow State Law University (MSAL) within the framework of the IV Moscow Legal Forum "Law and Economics: Interdisciplinary Approaches in Science and Education".
THE THEORY AND PHILOSOPHY OF LAW
64-72 630
Abstract
The article is devoted to the analysis of interrelations between justice and positive law in the Russian philosophy of law in the second half of the XIXth century - the first half of the XXth century. The author considers the views of legal sociologists (L.I. Petrazhitskiy, M.A. Reisner, S.A. Muromtsev) and supporters of the Natural Law Doctrine (B.N. Chicherin, P.I. Novgorodtsev, V.S. Solovyev). Representatives of the Psychological School of Law (L.I. Petrazhitskiy, M.A. Reisner) consider justice as intuitive law and, in this sense, oppose it to positive law without denying a certain relationship between them. S.A. Muromtsev, a classic of domestic Sociology of Law, is looking for a center of gravity in public relations. B.N. Chicherin, who was an active proponent of philosophical methodology and supporter of the Theory of Natural Law, believes that justice is rooted in the human mind acting as a tool for assessing positive law determinations. Proponents of the Neo-Kantian Philosophy of Law (P.I. Novgorodtsev, K.S. Solovyev) justify criticism of positive law in terms of a priori principles of morality that are integral parts of the human conscience as a reasonable moral human being. Attention is also given to some contemporary problems of the Theory of Law: In particular, the question is raised concerning admissibility and validity of the so-called evaluation categories in contemporary Russian legislation that include justice.
73-78 466
Abstract
The article justifies the relevance of theoretical examination of legal criteria, distinguishes between the concepts of "legal criterion" and "legal indicator," identifies functions of legal criteria, defines the most common features of legal criteria, proposes a definition of the term "legal criterion".
BANKING SYSTEM AND BANKING ACTIVITY
79-83 404
Abstract
The paper considers the issues associated with determining the loan repayment period. The author analyzes current issues of the jurisprudence concerning instances when a bank demands an earlier loan repayment or a borrower repays a loan earlier on his own initiative.
CIVIL AND FAMILY LAW
84-89 457
Abstract
The paper provides the results of the Round table "Amendments to the Civil Legislation and Court Practice on Issues Concerning Discharge and Enforcement of Obligations" held on February 16, 2017, at the Kutafin Moscow State Law University (MSAL), as well as summaries of the participants' reports. The concept of the Round table was based on the results of the reform of the Law of Obligations the Russian Federation, new developments in the civilistic science and law enforcement practice. Also, the author pays attention to the court practice that declares new approaches to the interpretation of the contemporary Russian Law of Obligations. In this regard, the acts of the Supreme Court of the Russian Federation were of particular importance for the speakers (for example, the Ruling of the Plenary Session of the Supreme Court of the Russian Federation № 7 "On the application by the courts of certain provisions of the Civil Code of the Russian Federation concerning liability for the breach of obligations" dated March 24, 2016, the Ruling of the Plenary Session of the Supreme Court of the Russian Federation dated November 22, 2016 № 54 "On certain questions concerning the application of the general provisions of the Civil Code of the Russian Federation concerning obligations and their execution.") During the Conference, the participants and moderators presented and analyzed the main areas of contemporary civilistic science with regard to theoretical and practical problems of the Law of Obligations in the light of the Civil Law reform.
90-98 1452
Abstract
The article deals with a complex structure of contractual relations in the context of pledge of rights, distinguishes particularities of interrelations between a pledgee, a principal debtor and a third party pledger; analyzes internal and external relations between entities in question. The author justifies the conclusion that application of rules regulating a surety to regulate relations between a pledgee, a third party pledger and a principal debtor contradicts the legal nature of the pledge. With regard to the pledge of obligation rights, the Act sets specific rules that distinguish significant differences in the regulation of a surety and pledge of rights. It was concluded that regarding surety the legislator provides for the construction of subrogation which is not applicable to the pledge of rights (encumbrances on rights). A principal creditor (a pledgee) on the basis of a pledge agreement becomes the holder of the right. Thus, in the case of the pledge of rights a mechanism different from a mechanism applied to the surety and incompatible with either the assignment of rights or subrogation is applied. The paper questions the provision of the RF Civil Code under which a pledge account that is regulated by the rules applicable to an agreement of pledge of rights under a bank account agreement can be open by a pledger. The author provides arguments to support the possibility of opening a nominal account of a pledger. A nominal account agreement made between the bank and the owner of the account (pledger) with the participation of the beneficiary (pledgee) provides an opportunity to avoid complex relations between the named persons in case of the pledge of rights and to preserve the balance of interests of each party when a secured obligation is discharged.
99-104 438
Abstract
The paper highlights that the legal mechanism of public procurement from socially-oriented entrepreneurs needs to be improved. In particular, one of such issues that needs to be addressed is the problem of providing a proper collateral to secure an obligation of a social services provider. It is noted that aspiring entrepreneurs claiming the status of "a social service provider" do not possess property necessary to secure a state contract and have difficulty in contacting financial credit organizations that issue bank guarantees. The paper provides scientific and practical guidance on how to address this issue. The author justifies the necessity to entrench the requirement of a free public guarantee as a means of securing the obligation of the social services provider. The author supports a consideration in favor of a complex, polysectoral legal nature of the public guarantee. It is noted that without substantial state financial support granted to non-state actors of the social services market, it is difficult to expect fair competition in the sphere of providing social services.
105-111 602
Abstract
The paper on the ground of interpretation of the Ruling of the Plenary Session of the Supreme Court of the Russian Federation dated November 22, 2016 № 54 "On Some Issues of Applying General Provisions of the Civil Code of the Russian Federation on Obligations and their Discharge" analyzes the nature of an agreement made between creditors concerning the procedure of discharging their homogeneous claims against the debtor, justifies the conclusion according to which such agreements are referred to association agreements that, as opposed to partnership agreements, regulate relations of uniting both property and entities. The paper examines opportunities to subject relationships between parties to an intercreditor agreement to the rules that regulate the procedure of making decisions by the meetings of civil communities under Chapter 9.1 of the Civil Code of the Russian Federation. The author provides arguments to support the contemplation that, depending on the sphere of application of agreements in question, it may be necessary to manage the pledge or any other claims of creditors (indebtedness) using the rules regulating an agreement of pledge management.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
112-123 1342
Abstract
It is generally accepted that the accessibility of justice, the fact of exercising the right to judicial protection, largely depends on how the procedural law regulates the procedure for filing an application and initiating a case in court. From this point of view, the author explores the question of how the established system of "filters" agrees with the absolute character of the constitutional right to judicial protection at the stage of initiating a case in civil proceedings, and also considers relevant novels of the Concept of the Unified Civil Procedure Code of the Russian Federation.
CRIMINAL LAW
124-134 442
Abstract
The article covers a wide range of issues related to the analysis of the criminal legal protection of the constitutional human right to health. The norms of criminal and penal enforcement legislation aimed at protecting and protecting the health of the guilty person in criminal assault at various stages of the application of punishment are analyzed. The position of the legislator on a similar aspect is considered and compared with the one of the injured person whose health caused harm. Attention is drawn to the fact that the victim, whose interests are put under the protection of the criminal law, sometimes has to take proper measures to dampen the consequences of the encroachment on him and restore the health violated by the crime. In the opinion of the authors, it is the state that should develop and create additional mechanisms of assistance in restoring the victim's injured health, so that he does not appear to be in a worse situation than the perpetrator in relation to whom the body of rules, both criminal legal and penal, prescribing to take into account his state of health not only in the appointment, but also in the execution of punishment.
CRIMINAL PROCEDURE
135-141 433
Abstract
The article examines the criteria that testify the determination of meritous subject matter of jurisdiction in consideration of issues related to the implementation of final judgments. As the main provisions allowing to point to the meritous subject matter of jurisdiction in consideration of issues related to the implementation of final judgments the following have to be mentioned: the nature of the issues to be examined by the court (objective, subjective, objective-subjective); relationship to the achievement of the objectives of punishment (related to the purposes of punishment or not related to it) and the degree of impact on the verdict (affect the sentence entirely or partially). In this case, the degree of significance of a criterion and its determinative nature with respect to the subject matter of jurisdiction can not be uniquely determined for all issues to be considered at this stage of the proceedings.
ENFORCEMENT OF PENALTIES
142-148 551
Abstract
This article reveals the prospects for the formation and development of the existence of a complex branch of law: 'penitentiary law'. The article also draws special attention to the fact that the general (essential) features of deprivation of liberty are, in one way or another, inherent in the actual implementation of a number of other coercive measures that are not punishments by their legal nature. Therefore, the concept of deprivation of liberty (and the understanding of penal measures) can be interpreted more broadly, namely, in terms of the terminology used in many authoritative international acts. Proceeding from the norms of international normative legal acts, it is fair to assume that both administrative arrest, criminal procedure detention and imprisonment, and disciplinary arrest in their social nature have common signs with criminal legal deprivation of liberty.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
149-157 2044
Abstract
The article continues the scientific discussion on the possibility of using the conclusion and testimony of a specialist in criminal proceedings. The significance of the conclusion (both judgments) and the testimony of a specialist primarily for the defense party, including for evaluating the expert's conclusion, is substantiated. The following changes in the criminal procedural legislation are proposed: - addition of the possibility of using the expert's conclusion by the court; - the exception of the concept of a specialist's conclusion as a study provided under the reduced form of inquiry; - addition of a new chapter in order to determine the procedural order for obtaining and processing a specialist's opinion and his interrogation; - addition of grounds for the appointment of a second judicial examination - a conclusion and testimony of a specialist, questioning the validity of the expert's conclusion; - restriction of the right of the defense in the case of the appointment of a forensic expert examination prior to the institution of a criminal case by compulsory appointment of an additional forensic examination and only at the stage of acquaintance with the expert's conclusion; - introduction of the procedural status of the Head of the Expert Institution as well as providing him with an opportunity to prepare a specialist opinion as a review of the conclusion of a subordinate expert; - the extension of the right of an expert initiative to a specialist and the head of an expert institution by preparing a specialist opinion for the purpose of expert prevention. The tactical peculiarities of using the expert's conclusion and testimony, as well as the conclusions of the expert consultant as another proof, are considered.
158-166 363
Abstract
The article examines the problem of establishing uniform approaches to assessing social tension as a relatively negative for the Russian criminologically significant phenomenon. It is proposed to introduce the notion of a social group of 'citizens dissatisfied with the authorities' into a scientific and practical turn in the sphere of crime prevention. The expediency of referring to this category is not only traditionally understood under this the unemployed and persons living below the poverty line, but also representatives of financially secured layers of society, dissatisfied with the tax, law enforcement and other activities of the authorities. The connection between social tension and crimes committed under its influence, including mass riots and 'color revolutions' is considered. It is proposed to introduce appropriate additions and amendments into certain normative acts and the Criminal Code of the Russian Federation in the aspect of criminalization of acts leading to a significant increase in social tension. The author gives his own definition of 'social tension' for the discussion, as well as a list of priority steps for the tension to be reduced through the general social and special criminological measures.
COMPARATIVE LAW
167-174 408
Abstract
The experience of 'color revolutions' and 'Arab spring' testifies to new phenomena in the constitutional development of the countries of the East. The article briefly talks about the nature of these revolutions, their basic social and political conditions, goals, and demands of the people. During the consideration of individual constitutional amendments and four new constitutions (Kyrgyzstan, Morocco, Egypt, Tunisia), the constitutional and legal results of revolutions are analyzed in four directions: man and family, public associations and their role in society, the foundations of the public and state system, state bodies and Local government. Separately, the novels of the constitutions are pointed out, which contribute to the experience of constitutional development and the theory of constitutional law.
175-180 3710
Abstract
Based on the conducted comparative legal study, the article studies the peculiarities of the legal regulation of taxes in the Republic of Korea. The article contains and analyzes the norms of the South Korean tax legislation, the doctrine of the tax law. In general, despite the differences in the formulations used, it can be stated that the principles of taxation in the countries in question actually coincide, which indicates their objective nature.
181-188 576
Abstract
The article is devoted to the problem of missing legal definition of "residential premises” in the legislation of the Republic of Abkhazia. Comparative legal analysis is carried out on the basis of the legislation of the Republic of Abkhazia, the Russian Federation, and the Republic of Kazakhstan. The author substantiates the possibility of expanding the powers of a citizen to use residential premises, taking into account the rights of others, gives recommendations to adhere to a common approach concerning the extension of such powers, preventing the allocation of certain categories of citizens. The necessity of legislative consolidation of residential premises characteristics is justified. The concept of "residential premises" is being developed.
189-194 635
Abstract
The desire to improve the legal regulation in the field of urban development in the Russian Federation and the harmonization of Russian and foreign law requires an analysis of the doctrine, legislation and judicial practice of foreign countries. Particular attention to the study of German law is given not only by the fact that the Russian Federation and the Federal Republic of Germany belong to one Romano-German legal family, but increasingly integrated relations between citizens and economic entities of these countries. The article compares the legal regulation of urban zoning in Russia and Germany. Special attention is given to the specific features of territorial planning in the FRG, the conclusion is drawn on the similarity of the civil legal model of regulation, and there is an assumption that the Russian legislation is being improved through the reception of certain German law norms that can be applied on the territory of the Russian Federation.
LAW ENFORCEMENT
The Question of the Definition «Assistance to Citizens Operational Units of Internal Affairs Bodies»
195-201 490
Abstract
The author's variant of the definition of "support of citizens to the bodies of internal Affairs" in the fight against crime drawn up on the basis of the analysis set out in the Federal laws "On operative-search activity" and "On police", the norms and terms related to the sphere of support of citizens to the bodies implementing operative-search activity.
202-212 2923
Abstract
The article substantiates the conclusion that the participation of citizens in the administration of justice, having a special constitutional and legal significance, is an interdisciplinary principle of legal proceedings. This conclusion can not be shaken by the fact that at present the participation of the people's element in the composition of the court is ensured only in criminal cases and in arbitration courts. The intersectoral principle should not necessarily be exercised in all types of legal proceedings and (or) in all types of cases. It is important that its content reflect the nature and nature of the activities of the judiciary. Based on the analysis of statistical data and taking into account historical examples, the need to expand the forms of citizen participation in the administration of justice is shown.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
213-221 510
Abstract
The publication provides a overview characteristic of regulation of general land use in the legislation of foreign countries. The author emphasizes that abroad free use is possible only in certain categories of public lands, it is only possible to pass private lands, and, as a rule, on the basis of public easement. Based on the best foreign experience in reforming Russian legislation, it seems advisable to ensure a unified cross-sectoral regulation of general land use, as well as to consider the possibility of transferring common-use lands to the unified administrative management, providing for the possibility of extracting income within reasonable limits.
LEGAL EDUCATION AND SCIENCE
222-231 424
Abstract
In this consolidated report we cover the meeting of the educational session of the International Conference "Martemyanov Readings” held on March 3, 2017. The report is of interest both from the pedagogical, and from the scientific and methodological point of view. We processed the theses of the speakers with the most careful attitude to author's ideas.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)