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Actual Problems of Russian Law

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No 9 (2017)

КОНСТИТУЦИОННОЕ ПРАВО

11-17 443
Abstract
The article devoted to the 100 anniversary of the Revolution in Russia examines political and legal aspects of transformations that took place at that time. The relevance of the publication is determined by the need to analyze the effects of mutual influence of changing consciousness of the community, increased legal literacy of the population, negative evaluation of law enforcement practices and the risks of revolutionary processes. The article attempts to lay a foundation for interrelation between law and revolution. Could the revolution at all be within the legal field and, if these two categories are mutually exclusive, why is mutual influence between them so strong? Also, the work touches on the problem of the society in times of political and legal upheaval that is accompanied by revolutionary upsurge and, as a rule, overstatement of creditworthiness, which is directly associated with accumulated fatigue from previous regimes. This construction, namely: law, revolution, society -is considered by the author not only on the basis of the 1917 Russian Revolution, but also in view of extensive foreign revolutionary practice.
18-24 509
Abstract
The article analyses the historical path of statehood and constitutionalism development among the peoples of Southern Russia since the October Revolution of 1917 in the context of the Ossetian People. The author concludes that in the process of improving state and legal relations, a thorough study of the history of the Russian state and law is of great scientific and practical significance. The Ossetic statehood was legally confirmed in 1936. The USSR Constitution of 1936 raised the issue of the political and legal status of North Ossetia. This gradual transformation of statehood - the transformation of an autonomous region into an autonomous republic, and that autonomous republic into the Soviet Union Republic - was, in general. characteristic of Soviet statehood in 20-40 years of the 20th century.

THE THEORY AND PHILOSOPHY OF LAW

25-35 808
Abstract
This article deals with the main problems relating to the disclosure of the content of the cultural and educational function of the State in respect of which the author concludes that the national element is inherent to it. The article analyzes interconnections between the content of the function in question and the cultural policy of Russia, among which the author emphasizes safeguarding of cultural rights and freedoms of citizens, developing of the country's cultural potential and preserving of cultural heritage, identity, accumulated knowledge and educating of an individual and society. The paper justifies the influence of the cultural and educational function of the State on other areas of public and social life. Also, the paper outlines legal and organizational foundations of the function in question, substantiates the possibility of applying new forms and methods of state regulation of culture. The author emphasizes that the State is not the only regulator of culture in the society, and the activities of civil society institutions and citizens' initiatives to take part in cultural life are of great importance.

STATE POWER AND LOCAL SELF-GOVERNMENT

36-46 2380
Abstract
The article deals with the areas of concern of the Russian constitutional system of power. Modernity requires the State to make all elements of the constitutional system operate as a single mechanism aimed at achieving constitutional values. In a modern constitutional law science, there are different approaches to studying the principle of "separation of powers" and its different assessments. The controversy over the theory of separation of powers and its implementation has recently intensified. The existing problems of implementation of the system of checks and balances in a horizontal system of government, a vertical system of public power (for the state and local governments), the system of power ambiguously fixed in the Constitution generate authorities that are not part of the triad of powers and, as a result, scientists propose to determine non-constitutional branches of power. The article provides an overview of scientific views on the content and substance of the modern principle of separation of powers and the author's vision of the term "constitutional system of power."
47-55 1471
Abstract
The article surveys one of the foundations of the Russian constitutional order, namely, the rule-of-law state. The author provides a definition of the concept of the rule-of-law state and reveals the content of constitutional principles underlying it. Analysis of domestic and foreign legislation and scientific literature devoted to the subject of the study has revealed main shortcomings in the existing definitions of the concept in question, and was used to substantiate certain proposals.
56-67 986
Abstract
The article examines characteristics of the Russian federal state-legal system. The author believes that implementation of equality of constituent entities of the Federation in Art. 5 of the Constitution of the Russian Federation does not mean their equal status. The paper examines peculiarities of the status of constituent entities of diverse types that are determined by multinationality of the population, geographical, geopolitical, economic and other factors. The paper concludes that the unity in a federal state can only be the unity of diversity. A non-natural desire to eliminate diversity inevitably distorts the meaningful side of federalism and impoverishes it. However, significant differences, particularly in social and economic development of constituent entities of the Federation, are so critical that they incur negative processes in the social, demographic, cultural and other spheres of life. The paper analyzes the problem of distinguishing jurisdictions and powers in a federal State. The author argues that correct distribution of powers between the center and the regions determines political and socio-economic situation in the country, as well as the country's position on the international arena. Modern federate relations are developing towards excessively greater centralization of power aimed at imposing the unity in federal relationships. This tendency is excessive and harmful from the point of view of regions' orientation to their own social and economic development, stimulating regions to develop independently, creating regional economic growth points.
68-80 489
Abstract
S.S. Alexeev, one of the architects of the "Presidential" Draft Constitution that was introduced for discussion and amendment at the 1993 Constitutional Meeting defined the essence of a secular state as 'civilized, non-religious, not over-ideologized state.' Not all participants of the Meeting shared that formula. Some of them considered the idea of a secular state for "our society to be hollow," although many saw its interrelation with the federal form of governance, and, which is more important, with a democratic rule-of-law state. A compound approach to understanding the essence of the secular state, its content and, in general, the usefulness of its constitutional regulation, resulted in very hot debates at the Meeting, especially among representatives of various political, religious and nonreligious views. The paper is devoted to the controversy among the Meeting's participants surrounding the notions of 'secular state,' 'atheistic activity,' 'freedom of expression of atheistic opinions.' The paper focuses attention on the extent to which participants of the Constitutional Meeting, especially the representatives of the legal science and expert institutions, managed to influence amendments made in the original text submitted by the RF President.
81-86 999
Abstract
The article examines a representative function of one of the Chambers of the Federal Assembly of the RF, namely, the Council of the Federation. The author reveals characteristics of principles underlying the notion of representation. Analysis of scientific literature devoted to the subject of the study has revealed main shortcomings in the existing definitions of the concept in question and enunciated certain proposals. The author considers that elections of the members of the Federation Council are carried out in full conformity with the constitutional principles of the Russian Federation.
87-93 399
Abstract
The article deals with the issues of implementation of the concept of conflict of interests in parliamentary activities as a guarantee of constitutional principles of the people's representation. The author examines the consequences of the parliamentarian's failure to perform the duty to prevent conflicts of interest. Existing legislation contains a number of contradictions concerning the imposition of sanctions for the failure to prevent conflict of interest. The article contains proposals to improve the procedure for terminating powers of parliamentarians due to the conflict of interest.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

109-115 1239
Abstract
The article examines administrative and legal aspects of fighting against corruption in state-management relations. The author has studied provisions of legal instruments governing the prevention of corruption in the Russian Federation. The author has analyzed the process of discussion and adoption of the draft law regarding the fight against corruption, as well as the draft foundations of the legislation devoted to anti-corruption policy. The article analyzes the laws of constituent entities of the Russian Federation aimed at combating corruption. The author reviewed the provisions of anti-corruption by-laws and regulations, including the National Strategy against Corruption and the existing National Anti-corruption Plan. In addition, the article presents anti-corruption legal acts of State Administration of the Ministry of Internal Affairs of the Russian Federation, as well as provisions of legal acts issued by the Department of Economic Policy and Development of Moscow and aimed at fight against corruption.

ФИНАНСОВОЕ ПРАВО, БЮДЖЕТНОЕ ПРАВО, НАЛОГОВОЕ ПРАВО

116-125 472
Abstract
The subject of the study amounts to the provisions concerning interest rates provided for in Article 75 of the Tax Code of the Russian Federation, as well as in Articles 81, 95 and 126 of the Law on Bankruptcy. The author has analyzed the balance between public law and private law interests in their application, as well as the priority use of the provisions of bankruptcy law against the RF Tax Code. Complex aspects of the study include the consequences of tax liabilities modifications, as a result of which the taxpayer is not in charge of the payment of VAT and the tax profits of organizations. In considering the economic effect of relevant changes, the author draws attention to the absence of clear criteria for the in-between behavior of the taxpayer, persons in charge, as well as official receivers testifying that they received unreasonable tax benefits, gained optimization of the tax burden or evaded taxes. Methods of systemic and logical analysis as well as the synthesis of normative resources are used as research methods. The choice of the study is determined by the fact that the issues of charging penalties under the tax and civil legislation and their balance concern a wide range of business entities as well as fiscal authorities. Accordingly, a true understanding of the legal nature of interests levied under the tax and civil legislation is of the utmost practical importance. The author has formulated proposals to amend article 75 of the Tax Code of the RF that makes it possible to overcome contradictions and apply the rules of the bankruptcy law as a matter of priority as compared with the rules of the tax legislation. However, tax benefits received as the result of application of bankruptcy procedures could not be recognized as being adequately settled in a way preventing various acts circumventing the law.

CIVIL AND FAMILY LAW

126-133 676
Abstract
The article examines the origin and course of the historical development of institutional instruments in Russia. There are four main stages of institutional instruments development. The first phase coincides with the pre-revolutionary period in Russian history and is characterized by the emergence and pervasiveness of institutional contracts. The first half of the twentieth century coincides with the second stage of development of institutional contracts, which became stagnatory. The second half of the twentieth century accounted for the third phase, marked by a continuation of the evolution of institutional contracts and characterized by a qualitative and quantitative leap in advances of institutional instruments. The fourth stage in the development of the institutional contracts coincides with the modern historical period. The article identifies the signs of each stage, describes the emerging institutional contracts therefrom. The article also deals with the role played by institutional instruments in the modern period. It is concluded that the institutional instruments are a way to meet organizational needs of parties to civil law, civil law instrument for planning its future activities, as well as determining factor in the development of legislation in the sphere of organization of interaction of parties to civil transactions.

BUSINESS AND CORPORATE LAW

134-140 482
Abstract
This article discusses the features of State control in respect of residents of the territories ahead of socioeconomic development in reducing the timing of scheduled and unscheduled inspections, creating special units of the federal executive authorities and territorial social insurance fund of the Russian Federation. The author highlights the rights of residents when conducting inspections and their liability for failure to comply with instructions about elimination of infringements. The article concludes that the State control in respect of residents of the territories ahead of socio-economic development be under special control.

LEGAL PROTECTION OF INTELLECTUAL PROPERTY

141-146 671
Abstract
This article, using a comparative analysis of the development of intellectual property law, explores the current trends of constitutional and legal protection of intellectual property rights. It is concluded that the need to safeguard the rights of citizens, national security, creating an innovative economy defines the directions of the world constitutional development, one of which is the constitutionalisation of legal institution intellectual property rights. The author identifies the two major ways of constitutionalisation: legislative and interpretative. A subjective constitutional right to intellectual property performs a special "social function", which is to achieve an optimal balance between private and public interests. Constitutionalisation is a global trend of modern development of States, which is expressed in the universalization and strengthening of the constitutional values impact on institutions of different legal systems, which contributes substantially to their convergence. It is concluded that intellectual property is part of the basic constitutional principles of many foreign countries. Therefore, among the foundations of the constitutional system a new principle related to the development of relations should be allocated, including their facilitation, promotion, guaranteeing and support with a view to achieving economic and social progress of society, aimed at building the innovation (based on the knowledge economy) State.
147-152 715
Abstract
Legal regulation of relations resulting from the creation and use of digital objects is one of the most pressing issues in contemporary legal science and practice. Legal qualification of objects developed by means of computer technologies is under discussion in legal literature. In particular, this applies to objects that are created in the so-called virtual reality. This article is devoted to the analysis of a number of issues related to the development and operation of complex objects of intellectual rights with the help of computer technology. The author analyzes the concept of virtual reality, considering the issues raised about the qualifications and the use of those objects that are created in this area (including SaaS technologies and APIs). The article concludes that there is a need to develop mechanisms for disposition of intellectual rights in the light of the development of modern computer technologies.

LABOR RELATIONS AND SOCIAL SECURITY

153-162 1008
Abstract
The article examines the two vectors of new trends in the conceptual framework of social security law based on the approach that defines the interrelationship of conceptual and field subject to legal regulation. One vector of the novelties is unwarranted borrowing terms and concepts of civil law, the application of contract forms without specifying its socially constructed field specifics. This leads to unjustified acceptance of private law in regulation of relations on social security. Under the interim socio-relationship agreement is used as a tool for determining the level of social services provided to citizens free of charge. There are no objective reasons for a broader understanding of sectoral subject and enshrining private law elements therein. Relationships, beyond the public law, should be communicated not with the subject of social security law, but with the sphere of social protection. The subject area of the social protection system can include both governmental and private components. The other vector of novelties is codification of new terms and concepts that are not consistent with legal definitions and terminology. Consequently, vertical (hierarchical) and horizontal (peer) relationships in the framework of sectoral conceptual row are violated. Key industry terms and concepts serve as indicators of the domain of legal regulation. The formation of integrated paradigm allows you to define more precisely the range of social relations, which are the subject of the social security law.

CRIMINAL LAW

163-171 2158
Abstract
The article deals with the Art. 2056 "Failure to Report a Crime". The features of corpus delicti are analyzed. It is established that the offence violates the two objects: public safety and justice. Objective party shall act in the form of inaction. Mental element is characterized by fault in the form of direct intent. The legal nature of the crime is identified. Failure to report a crime belongs to a sub institute "the implication in the crime" within the framework of a plurality of persons in the crime. The article solves the questions on differentiation of a crime from concealment of an extremely serious crime (Art. 316 of the Criminal Code of the Russian Federation), as well as classification in cases when the failure to report a crime involves complicity in terrorism. It is concluded that the beforehand promised failure to report a terrorist act constitutes complicity in a crime, subject to the classification under Art. 2051 Part 3 of the Criminal Code of the Russian Federation. The author comes to the conclusion that the failure to report a crime not listed in the disposition of Art. 2056 of the Criminal Code of the Russian Federation has no public danger and does not entail criminal responsibility.
172-176 798
Abstract
This article addresses the problem of defining the essence of the term "income" from illegal business activities. The author analyses the relevant practice of the Supreme Court of the Russian Federation, identifies problematic aspects of the interpretation of certain provisions of Art. 171 of the Criminal Code of the Russian Federation. Based on the research, the author concludes that there is a need to dock normative definitions of the income from illegal business activities in the footnote to the above-mentioned article of the Criminal Code.

CRIMINAL PROCEDURE

177-185 573
Abstract
The article is devoted to the various conflicts of interest between the attorney at law client in criminal proceedings and his other clients, as well as other clients of the lawyer, which he has previously provided legal assistance in any form. This paper deals with the legal essence of the conflicts of interests between clients, as well as the relationship of the conflicts of interests between the lawyer's clients and conflicts of interest between a lawyer and its client. It has been established that one of the consequences of the conflicts of interests of the lawyer's clients is a conflict of interest between the lawyer and his client, including the defendant. The author differentiates between such concepts as a conflict of interests and a clash of interests. The article investigates the main problems of procedural responding to conflicts of interest between clients of the attorney at law in criminal proceedings, the ways of their resolution, including complying with the regime and proper execution of attorney-client privilege and proper execution of other responsibilities of the lawyer of the defense. The basic conditions of the legality of regulations for the disqualification of a defender from exercising protection in criminal proceedings are defined.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

186-202 410
Abstract
The article is devoted to the topical problems emerging in criminalistics teachings on investigation recognition. Debatable questions concerning essence, purpose, object, and other components of the specified limits are considered. According to the results of the study, it is concluded that the term "recognition" of the investigation can be considered from several perspectives. Under investigation recognition, you can understand, in particular, the shape and direction of cognitive activity of the investigator in the field of pre-trial criminal proceedings. Investigation recognition can also be defined as the combination of adequate to the situation objectives, methods, tools, technologies and procedures implemented in the mode of procedure establishment of evidence in order to recognize the signs of relevant objects a criminal investigator fails to observe with his imperceptible senses, as well as signs of the unobservable criminal relevant objects, through a comparative analysis of actual and model information and usage of existing knowledge about other signs logically related to the former. In addition, the investigation can be considered as recognition of the emerging private forensic teaching about pattern mechanism principles, methods, tools and technologies, knowledge of the relevant criminal unobservable objects, as well as sensual imperceptible signs of criminal relevant objects.
203-209 728
Abstract
This article discusses the prospects of introduction of forensic profiling in the activities of the internal affairs authorities for the disclosure and investigation of crimes. The author identifies the main directions of use of profiling in law enforcement activities, the positive experience of the application of the techniques of forensic profiling, as well as proposals to improve information retrieval system of the Ministry of Internal Affairs of the Russian Federation. The scientific novelty of the research lies in the integrated approach to profiling techniques review and offers recommendations on their use in law enforcement. The practical value of the research consists in the possibility to use its results in subsequent theoretical works, devoted to problems of use of profiling in law enforcement; as an element in the formation of educational-methodical complex on specialized educational organizations of the Ministry of Internal Affairs of Russia; when implementing operational and intelligence measures activities; in conducting the investigation and legal proceedings; when implementing the preventive measures implemented by the internal affairs authorities in relation to persons subject to preventive effects, in accordance with the normative and legal acts of the Russian Federation; in order to improve the information resources of the Ministry of Internal Affairs of the Russian Federation.

ENFORCEMENT OF PENALTIES

210-218 586
Abstract
This article discusses the issues associated with finding the best means and methods to eliminate or minimize the causes of the spread of radical ideologies in places of deprivation of liberty, both in Russia and abroad. The authors analyze domestic and foreign scientific literature devoted to the spread of radical ideas in correctional institutions. The article considers factors of radicalization of convicted persons in places of detention, which are divided into two criteria: 1) independent of the characteristics and specificities of the functioning of penal institutions (external); 2) related to the Organization of Correctional Services (internal). It is revealed that, among the internal factors, the radicalization of inmates should be emphasized inefficient organization of their employment and training. The authors provide examples of staffing of those sentenced to deprivation of liberty in Russia and a number of foreign countries with examples of effective enforcement programs for deradicalization of prisoners, the main element of which is their engagement into labour activities. The authors draw conclusions about the significance of employing those sentenced to deprivation of liberty for the success of their deradicalization.

CONFERENCES

219-223 344
Abstract
The article provides an overview of the presentations and scientific reports of the participants of the International Scientific and Practical Conference "Topical Issues of Civil Procedural Law" dedicated to the 80th anniversary of the Doctor of Law, Professor, Honored Worker of Science of the Russian Federation A.T. Bonner, held on June 9, 2017 at Kutafin Moscow State Law University (MSAL).


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ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)