No 10 (2017)
PAGES OF HISTORY
11-24 341
Abstract
Current problems associated with the search for the most effective orms and methods of regional administration, the most efficient allocation of local self-government facilities in the political system of the Russian Federation, as well as the conflicts existing in the regions between the heads of local self-government and the bodies of State authority show the relevance, necessity and importance of an objective analysis of the theory and history of local government. The recourse to the pre-revolutionary practices of local self-government, a thorough examination of which predetermines the emergence of a modern democratic system, becomes a priority. It seems that this is where we can find answers to many questions put on the agenda by the modern development of regional administration and local self-government in Russia. Using the Taurus Provincial Zemstvo as an example, the authors attempt to generalize local self-government organizational activities on the territory of Crimea, their peculiarities and practical output, their interaction with provincial state authorities, income and expenditure of the budget, justification of the expansion of the number of people included into the pension provision scheme, determination of legal grounds for the increase in costs of maintenance of the road infrastructure. In the Provincial Zemstvo, commissions were set up to elaborate a decision-making procedure and without their affirmative conclusions the issues would not be subject to any consideration. When writing the paper, the authors used the collection of the Rare Books Department of the Chekhov Central Yalta City Library.
STATE POWER AND LOCAL SELF-GOVERNMENT
25-32 624
Abstract
The article considers the influence of international and national court practices on legal relations concerning the acquisition of nationality. A contemporary doctrine, to a greater extent, deals with the issues of either material comprehension of normative (regulatory) provisions on this issue or separate procedural peculiarities. However, an integrated approach that addresses domestic and international law rules, as well as the jurisprudence and case law at the inter-state and domestic levels, allows the widest possible coverage of the legal regulation of the subject matter in question and identifies the problems of normative regulation and determines the ways to improve it. Thus, the 'close connection' test and discretion (margin of appreciation) developed by international judicial institutions to decide issues concerning nationality are gradually becoming a part of the Russian Federation jurisprudence, as manifested in recent court cases. This taxonomy should be the case when concrete proposals are made for the creation or transformation of existing normative regulation The very life, social relations that exist must determine further development of law. In this case, it does not matter what form it takes: court precedents, doctrinal research, analysis of citizens' applications, etc.
33-40 793
Abstract
The article examines contemporary scientific approaches to the definition of the content of the constitutional right of a human to self-defense of his or her rights and freedoms as part of the mechanism for the protection of human rights and freedoms. The author justifies the statement that self-defense should be assigned to non-jurisdictional forms of protection of individual rights. The paper provides a brief overview of the composition of a constitutional legal relationship emerging as a result of exercising the right to self-defense. As civil society possesses certain mechanisms for detection, expression and, where necessary, formation of public opinion that can be used to address and eliminate social conflicts, the paper considers the ways of self-defense of rights by means of various institutions of civil society (the media, political parties, public associations, etc.) and provides relevant examples from their daily practice The paper determines the prospects for the development of self-defense legal regulation in Russia.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
41-50 434
Abstract
The article examines the issue that is associated with the process of obligating business entities to clean up the territory adjacent to their property in the context of contemporary law enforcement. The authors attempt to address this issue through the prism of the institute of public property, in particular, through its core concept of administrative and property law. It is noted that there is a need to further develop legal rules and to adopt a common legal approach to the administrative and legal obligation to maintain public and common territories.
FINANCIAL LAW
51-57 942
Abstract
The article examines the evolution of the budget at different stages of the State establishment and development, where the views of representatives of both economic and legal sciences are represented. The author emphasizes material, economic and legal aspects of the 'budget' category. Characteristics of this category and its place in the financial system of the state are highlighted. The paper analyzes the 'budget' concept in the context of the effective edition of the RF Budgetary Code and in the draft new edition of the RF Budgetary Code. The paper provides a new definition of the "budget" category.
58-62 409
Abstract
The paper deals with the issues of legal regulation of the national payment system and, in particular, such an important element of a national payment system as the national system of payment cards (NSPC). In the paper the author analyzes strategic objectives of NSPC implementation, the stages of its formation, scrutinizes the process of implementation of the project, associated with the "MIR" payment cards, main problems that have emerged as the result of this project implementation, draws conclusions concerning further strategic ways of the payment card system development.
CIVIL AND FAMILY LAW
63-71 571
Abstract
The article on the basis of normative regulations and law enforcement practice scrutinizes peculiarities of the legal regulation of relations associated with reimbursement of the cost of inseparable improvements to the leased property carried out by the tenant The emphasis is put on legal assessment of changes in the leased property that improve its quality and on the terms of reimbursement of the cost of inseparable improvements to the tenant. The author provides arguments concerning inadmissibility of equating the leased property (the result of the tenant's activity as it is defined in Para 1 Article 616 of the RF Civil Code) with inseparable improvements in the meaning of Para 2 and 3 of Article 623 of the RF Civil Code. The author emphasizes that the essence of this distinction amounts to the determination of civil law consequences of improvements to leased property If the change is the result of capital repairs carried out at the expense of the tenant when the landlord violates his duty to perform such repairs, then the landlord's failure to carry out the major repairs gives rise to a specific duty imposed on the tenant to compensate for the cost of repairs or to deduct it from rental payments under the rules of Article 616 of the RF Civil Code. Different consequences arise in determining the legal nature of legal relations when the tenant's actions are based solely on his private interests to improve the quality of the object of the lease and (or) its operational properties and are not aimed at carrying out the landlord's duty to maintain property in proper condition The cost of such inseparable improvements to the leased property shall be reimbursed under the rules of Article 623 of the RF Civil Code.
72-78 530
Abstract
The paper deals with matters relating to determination of the legal nature (essence) of the status of a person as a legal category, as well as other aspects directly related to the determination of purposes of persons entering into different legal relations. However, particularities of manifestation of specific features of the status of a person as a legal category are dealt with regarding relations arising both in private and public sectors The study concludes that the status of a person as a legal category predetermines the ability of a person to enter into relations with other members of the society, as well as provides conditions, i.e. becomes a tool for gaining benefits from an appropriate tangible or intangible object, therefore, it is the status of a person that is the single benefit to the members of the community, acquisition, modification or termination of which is directed at any kind of a relationship. The given statement leads to the conclusion: "As long as a person has a status, he is able to meet his needs, as soon as the status is lost the possibility (the tool) of satisfying the needs disappears."
79-87 1522
Abstract
The article presents the main theoretical and practical problems of a partnership agreement as a form of organizing and conducting joint activities. The content is based on the main results of the reform of the Law of Obligations in the Russian Federation, new tendencies in the civil science and law enforcement practice. Court cases that contain new approaches to the interpretation of the contemporary Russian contract law has also been taken into account. In this regard, specific importance is given to the acts of the Supreme Court of the Russian Federation (for example, the decision of the Plenum of the Supreme Court of the Russian Federation of 24 March 2016, No. 7 "On application of certain provisions of the Civil Code of the Russian Federation concerning responsibility for the breach of obligations by the courts, " decision of the Plenum of the Supreme Court of the Russian Federation of 22 November 2016 No. 54 "On certain issues concerning the application of general provisions of the Civil Code of the Russian Federation concerning obligations and their fulfillment. ") Attention is paid to the legal nature, constituent features of a partnership agreement, the way they are enshrined in the contemporary civil legislation and applied in practice.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
88-103 532
Abstract
In response to the needs of legal practice, it is important to define the limits and the content of the procedural sphere of court proceedings in respect of insolvency in a systemic interpretation regulated by law of civil procedure For this reason, its consideration is not confined to bankruptcy proceedings as a basic part of the procedural sphere under consideration. However, a specific substantive nature of bankruptcy cases with due account for identified manifestations of interrelations between substantive and procedural law (legislation) and other characteristics of such proceedings require that we address the problem of interrelated court proceedings. Within the limits of the procedural sphere in question there are questions of theoretical and practical nature that are illustrated by cases from court practice arising both in cases of insolvency and in relation to them.
104-111 345
Abstract
The paper investigates adverse consequences of unfaithful procedural conduct of a person involved in a case that is likely to influence the outcome of a dispute, including cases when the court justifies its findings through reference to the party's explanations when the opposing party fails to provide an evidence requested by the court or the court considers as proved or refuted the fact for clarification of which a forensic examination had been appointed while the opposing party evaded participation in that examination. It is argued that in such cases the court establishes the facts of the case based on a provisional presumption The author insists that, in this case, the determination of a fact on the basis of a presumption is a measure of protection (sanction) applied by the Court when the party fails to participate in the examination or retention of evidence, which complies with the purposes civil proceedings In turn, the provisions of Para 3.1 of Article 70 of the RF Code of the Administrative Procedure that exempt the party from proving the circumstances directly unchallenged by the other party based on a fiction recognizing such circumstances The author upholds the approach under which passive procedural conduct of the party is not unfaithful Thus, the general rule concerning the burden of proof should not be repealed and sanctions should not be imposed.
LABOR RELATIONS AND SOCIAL SECURITY
112-122 437
Abstract
The article reviews the status of the legal regulation of the participation of workers in the management of organizations in Russia, assesses the role and effectiveness of the mechanism of coordination of interests of employers and employees. The author analyses recent initiatives set up to increase opportunities for employees in management, in particular, establishing employee councils and granting of the right to the worker's representatives to participate in the collective administration organization, which is currently under discussion as a bill. The article identifies the legal nature of the participation of worker's representatives in the meetings of the collegiate bodies in the consultative capacity as a form of consultations between employees and employers and for the provision of information to employees The shortcomings of the bill are analyzed, proposals on issues that should be addressed are formulated so that this form of participation in governance could be effectively applied in practice. In particular, the necessity to specify the right to receive all information discussed at meetings of the collegiate bodies; set the order, terms and conditions of the meetings (conferences) of workers to elect representatives, as well as the criteria for determining the number of representatives of employees It is suggested that the issues of providing the necessary capacity of worker's representatives for the exercise of their functions in connection with the participation in the meetings of the collegiate bodies and others be addressed.
123-130 439
Abstract
The article analyzes theoretical and practical issues related to the State registration of trade unions in Russia. The article dwells upon the importance of the institution of the State registration of trade unions in Russia, the way it is regarded by the international bodies and how the Russian practice correlates to the international labour standards. Since there is quite a varied litigation on the subject, it is very relevant. This article discusses: the legal nature of State registration; Convention of the International Labour Organization and the interpretation of the Committee on freedom of Association on this issue; scientific debates about the meaning of State registration for legal status of trade unions; the order of State registration This article also pays attention to the analysis of the most controversial issues arising in the Russian courts in cases of refusal in State registration of trade unions. In addition, the author analyses the opinion of the International Labour Organization to the Russian practice of refusal in State registration of trade unions. The issues concerning the legal nature of State registration of trade unions should be the subject of serious and detailed research in the science of labour law, the results of which should be used to improve trade union legislation and practice of its application in the future.
CRIMINAL LAW
131-139 1166
Abstract
This article offers the author's outlook on one of the ways of enhancing efficiency of counteraction against organized crimes. Based on the analysis of trends, changes and additions made to the Criminal Code of the Russian Federation which aim at countering criminal structures, it is concluded that there was a need to ensure a stable legal and criminal prohibitions in this area and inappropriateness of the further scale increase in the number of articles of the Special part of the Criminal Code of the Russian Federation containing a qualifying or particularly defining feature "committed by an organized group”. With a view to formulating anti-crime activities, it is suggested that an approach based on continuous monitoring of both the crime situation and trends in the penal policy be employed, together with the building up respective criminological models applying both quantitative and qualitative indicators The value of the formation of the science-based predictions for the negative social legal phenomenon in question, which should be the basis for the planned activities, is considered individually. It is noted that not all methods of analysis of time series and statistical tables provide the necessary accuracy of the generated prediction It is demonstrated that the relationship between changes in criminal law and quantitative dynamics of indicators characterizing counteraction against organized groups and criminal societies is of a complex and implicit nature. Some approaches to the formation of the analyzed statistical aggregates are proposed to be employed based on theoretical laws of probability density distribution that enables the correct use of the mathematical apparatus of the theory of stochastic processes. The conclusion about the necessity of quantifying the reliability of criminological generated models is made Suggestions on the formation of the "road map" of activities aimed at ensuring the priority preventive measures in this area are provided.
140-151 1343
Abstract
The article is devoted to the problem of classification of environmental crimes The author notes that this issue is complicated by two factors. Firstly, only the Criminal Code of the Russian Federation highlights environmental crimes in a separate chapter, therefore, their division into groups is still far from being complete Secondly, the combination of such acts is not defined (in other words, they are only in the relevant chapter or embedded in the structure and other chapters, for example ecocide). In addition, the integration of environmental crimes is based on the mereological method of division, as their legislative regulation demand taxonomic approach The article shows typical shortcomings of the proposed classifications, including the lack of common grounds for the division of the whole aggregate of the relevant group According to the author, environmental crimes encroach upon ecological safety, which, in this case, is their specific object. Separation of the environmental safety as a species object is consistent with the essence of a generic object of the offence, for example public safety. This corresponds to the content of public safety covering environmental safety as a separate category. Therefore, all crimes, united in Ch. 26 of the Criminal Code of the Russian Federation, taking into account their characteristics, violate some aspect (element) of ecological safety; harm the safety of nature as a whole or its individual components. Thus, all the acts can be grouped into two groups: 1) general offences against environmental safety; 2) special crimes infringing on ecological safety. The first group includes the acts referred to in Art. 246-249; the second-act under Art. 250-262 of the Criminal Code of the Russian Federation.
152-158 490
Abstract
The article provides the legal analysis of the concepts related to criminal punishment, the logical inconsistencies of terminology used in Russian Criminal and Penal legislation in this sphere, as well as legislative gaps, hampering the preventive task of criminal law when applying measures of criminal legal nature. The author proposes changes in the names of criminal sanctions and justifies the need to reduce the number of convicts serving sentences at penitentiaries, carrying out fundamental reform of the penal enforcement system, as well as inadmissibility of weakening criminal-law response to facts of violence and aggression in interpersonal relationships.
INTERNATIONAL LAW
159-167 722
Abstract
Human sexual exploitation is a multifaceted and complex phenomenon, which is regulated by a number of enactments in international law The scale of organized criminal activity, which is more and more of transnational nature, has led to the signing and ratifying international conventions and agreements against sexual exploitation by most of the countries. This article provides an overview of the main international instruments of the United Nations, Council of Europe and the CIS, using the concept of sexual exploitation and regulating the features of its counteraction. Analyzing the concept of sexual exploitation, trafficking, prostitution, forms of sexual exploitation, as the principal international instruments, the author finds that the international legislator is equated with sexual exploitation trafficking in human beings, while the traffic can be not only a violation of the right to freedom of man to use his sexuality Critical evaluation is used for the controversial conceptual apparatus, the absence of a unified approach to the definition of key terms and a list of other forms of sexual exploitation, prostitution and pornography, which in the case of the implementation of international criminal law regulations may violate the uniformity in national law.
168-174 929
Abstract
The article covers one of the main (or absolute) human rights - freedom of conscience in its narrower interpretation - religious freedom. The author examines the theoretical substantiation of the definition of "absolute human rights", analyzes international legal instruments aimed at the protection of human rights and fundamental freedoms, the possibility of limiting the freedom of conscience, as provided for in these documents. The author also considers Russia's national legislation on religious organizations; gives examples of some religious associations (organizations), whose activities are prohibited or restricted in Russia and other countries.
INTEGRATION LAW
175-181 517
Abstract
This article describes the principles to the processing of personal data set out in the European Union legislation. Their common features, as well as the essence and specificity of each principle are considered separately. The basic system of the relationship between the principles is defined. In addition, the article highlights innovations adopted in the process of reforming the EU legislation on the protection of personal data, Regulation (EC) 2016/679 On the Protection of Individuals with regard to the processing of personal data and on the free movement of such data, principles concerning the processing of personal data.
COMPARATIVE LAW
182-188 609
Abstract
The article considers the problems of investor-State dispute settlement (ISDS) through investment arbitration The author specifically focuses on problems within the framework of bilateral investment treaties (BIT) and free trade agreements (FTA). International investment disputes, which this article refers to, arise between foreign investors and the State receiving investment. Investor-State dispute settlement (ISDS) is the process of the settlement of such disputes by arbitration. In other words, it is a "third person acting as an intermediary between the parties in dispute, to hear and settle such dispute " If such disputes were settled in a really reasonable and fair manner by means of this method, the developed countries such as the United States and Australia would not have refused it Thus, the system of investment arbitration has not proved its stability at the international level.
LAW ENFORCEMENT
189-196 867
Abstract
This article highlights the problems of legal regulation of fundamental issues of Prosecutor's participation in considering arbitration cases on administrative offences. The Arbitration Procedure Code of the Russian Federation as at present in force has a number of shortcomings regarding the definition of the role and status of the public prosecutor in the process of reviewing and revising the administrative cases, which often creates difficulties for enforcer. The chapters of the Arbitration Procedure Code of the Russian Federation, directly related to the review and revision of the cases on administrative offences, do not mention the participation of the Prosecutor in the case. The gaps and imperfections have been partially eliminated by acts of the Supreme Court of the Russian Federation and by the abolished Supreme Commercial Court of the Russian Federation. On many contentious issues, there is a need to improve the legislation The author formulates specific proposals for changing the law, which would overcome the problems of legal regulation of the studied spheres of relations.
197-203 989
Abstract
The article is devoted to the issues of the content of the prosecutor's supervision over the implementation of laws in the sphere of turnover of medicines The prosecutor's inspection acts as one of the main elements in the system of supervisory resources, as it is a legal instrument of prosecutor's and supervisory activities that provides detection of both violations of the law and their causes and conditions First of all, when conducting inspections, the prosecutor's office must be guided by the constitutional principle of legality. To this end, the author analyzes the concepts and content of objects, subject matter, the balance and interrelation between the concepts of control and supervision.
CONFERENCES
204-213 391
Abstract
The article considers the basic reports of the participants of the round table "Bank Guarantee: Current Problems of the Banking and Judicial Practice", held on May 26, 2017 at Kutafin Moscow State Law University (MSAL). The reports highlighted the topical problems of the banking practices that occur when working with bank guarantees, in particular with the electronic form of guarantee; the uncertainty of the concept of "submission requirements" to the guarantor; the liability of the bank in case of suspension of payment under guarantee; cessation of independent guarantee.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)