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Actual Problems of Russian Law

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No 11 (2017)

ТЕМА НОМЕРА: НРАВСТВЕННОЕ ИЗМЕРЕНИЕ ПРАВА

11-15 454
Abstract
The overview article highlights the progress and some key points in the content of the International Scientific and Practical Conference "A Moral Dimension and Human Potential of Law" held on 21-22, 26 April 2017 at the Kutafin Moscow State Law University (MSAL) and devoted to the 15th anniversary of the philosophical-legal club "A Moral Dimension of Law" that has been operating on the basis of the Department of Philosophical and Socio-Economic Sciences under the supervision of Doctor of Philosophy, Professor Vyacheslav Mikhailovich Artyomov.
16-22 320
Abstract
The paper deals with an expansive interpretation of the law and application of ethical norms existing and applicable to advocates, which is reflected in the stricter requirements for advocates both within the framework of their professional activities and beyond them, i.e., in fact, even in their private life, giving examples from the history of the Bar in ancient Rome and the Russian Empire. The paper analyzes the mechanism for the formation and expression of public opinion with regard to advocates with allowance for the degree of objectivity of public opinion, as well as for the opinion of the advocates' community itself regarding the morals of its individual representatives. The author, using the A.V. Lekhovitskiy case as an example, demonstrates an extremely rigid attitude of Russian advocates involved in jury proceedings to the moral requirements applied to attorneys-at-law and how they and their assistants complied with them and examines the reasons for such attitude.
23-28 1778
Abstract
The paper deals with the issues of justice and law. The justice discourse is one of the oldest for both philosophy and the legal science. Approaches to the category of justice have been indicated throughout the history by both philosophers and legal scholars. The paper examines the basic concepts that existed at different stages of history, analyzes the views of philosophical and legal communities and their mutual influence. In jurisprudence, justice is positioned as a principle of rule-making, State action and law rules application. For example, justice of legal responsibility would mean that the offender would be punished in proportion to the crime committed. The purpose of law is to ensure the triumph of justice, and morality ensures the triumph of conscience. It is concluded that justice and law are not identical, and neither of these categories covers the other in its entirety. At the same time, these are interrelated and interpenetrating phenomena.
29-36 442
Abstract
The paper scrutinizes the emergence and development of a category "wrongdoing" in the doctrine of Vladimir S. Solovyov. The paper analyzes the formation of a pattern of a wrongful behavior in the primitive community in the context of the emergence of a blood feud. By the example of Russkaya Pravda, the author considers the interrelation between private law and public law foundations in the concept of "wrongdoing." Based on the analysis of main works by Vladimir S. Solovyev, the author draws a conclusion concerning the significance of his theoretical and legal beliefs for the legal science. In the author's view, thorough, scientifically grounded conclusions have certainly enriched not only the domestic legal and theoretical thought but also the world's theoretical and legal thought that examines the genesis, the current state and the ways for the further development of the category "wrongdoing."
37-47 615
Abstract
In the paper subsidiarity is considered in two contexts: Moral-philosophical and legal. Both aspects are synergistic, predetermining the dynamic and ambiguous nature of subsidiarity as a principle aimed at better attainment of the objective by mutual assistance and mutual support of the actors of power relations. Do not take away from the others what they can do themselves! This is the moral and ethical quintessence of subsidiarity and the most important value aspect of its practical application. Without denying their Catholic roots and philosophical nature, today subsidiarity predominantly serves as a competency principle in multi-level decision-making systems that always raise the question concerning the best (appropriate) level of exercising jointly shared powers. By including the principle of subsidiarity in its primary law and consistently developing it in the provisions of constituent treaties, the European Union (EU) has shown to the entire world community practical ways to apply this principle in order to qualitatively improve the supranational legislation that regulates the issues jointly implemented by the EU Member States. Without going into an in-depth analysis of the substantive content of the principle of subsidiarity, the author pays particular attention to the procedural aspects of the practical application of the principle of subsidiarity in the EU law as justification for the need to implement regulatory EU prerogatives (to be included in the preamble to EU draft laws) and the subsidiary control mechanism (implemented by national parliaments with regard to the EU draft laws). A judicial aspect of practical application of the principle of subsidiarity is also not overlooked. In the course of the study, the author assesses the effectiveness of the principle of subsidiarity in the EU as a legal category. The author concludes that in EU Law prevails a political approach to resolving disagreements between supranational and national law-makers regarding the correct application of the principle of subsidiarity in the EU legislative process. However, this does not in any way have a leveling effect on the legal relevance of the principle of subsidiarity in order to achieve the goals of better enforcement of the EU regulatory prerogatives.

THE THEORY AND PHILOSOPHY OF LAW

48-54 416
Abstract
The article highlights that a transforming society of the early 21st century significantly changes the conditions for the functioning of the social institution of the state creating a number of threats and challenges to social order and stability, particularly in an information and communication subsystem, as well as in a number of other subsystems and structural elements. Due to the prevailing objective circumstances, the social institution of the State, by exercising its social control functions, will inevitably strengthen and modernize the system of rules of law designed to counter emerging threats and challenges effectively.
55-61 425
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 paper examines the interrelation between the content of the function in question and directions in the cultural policy of modern Russia and justifies the conclusion that the cultural and educational function of the State is recognized as one of the priority activities aimed at developing the Russian national identity. The author describes the main approaches to the question of finding a balance between the activities of the State in shaping the Russian national identity, the tasks to preserve national identity and interests of all cultures and ethnic groups represented in State. Conclusions were drawn on the possibility of developing and strengthening domestic cultural and educational links taking into account inter-ethnic and ethnic interests.

STATE POWER AND LOCAL SELF-GOVERNMENT

62-67 638
Abstract
The paper deals with the problems of reforming administration and law enforcement systems in modern Russia. So far, the Russian Westernization project, which has been the object of great hope in previous decades, has not justified itself. At the same time, during this period, the Russian law-maker has been performing a large-scale reception of foreign public law rules into the domestic legal order. An introduction of numerous constitutional law principles that characterize the Western countries has often been carried out mechanically with no regard for both the peculiarities of the countries where they had been formed and the real possibility of integrating these novels into the domestic legal environment. This process has led to a number of negative results. In many respects, an administrative reform failure, slips in the implementation of the principles that form the basis for law enforcement activities, fundamental discrepancies between the theory of local self-government and the practice of its implementation prove the need for reviewing ineffective normative regulations and seeking new approaches to solving existing problems. The study in question attempts to assess the above mentioned process systematically, to acknowledge the errors made and to identify the ways to find appropriate alternatives.

FINANCIAL LAW

68-73 757
Abstract
Special tax treatments envisaged by the tax legislation to regulate how entrepreneurs and small and medium-sized business organizations fulfill their tax obligations play a particular role in the interaction of the State and taxpayers significantly simplifying and increasing tax efficiency for both parties involved. However, case law, including the practice of the Constitutional Court of the Russian Federation, reveals problems of understanding the legal nature of special tax treatments, the resolution of which is necessary to pass justified court decisions in the future. The paper deals with identification of distinctive features of special tax treatments; primarily, the paper determines their consistency and provides for a scientific definition that would distinguish them from the general taxation treatment and ordinary tax benefits.
74-83 628
Abstract
The article deals with the review of the legal regulation of supervision in the national payment system. In the course of the study, the author analyzes the concept of "national payment system," broadens its content, monitors interrelations between supervision in the national payment system and banking supervision, examines the system of supervision in the national payment system that includes the subject, objects, relations between these entities, a regulatory subsystem, purposes and principles of supervision. It concludes that the the Bank of Russia possesses a specific legal status in the national payment system, which predetermines non-application of supervision provisions to the payment system of the Bank of Russia. The article also examines the forms of supervision in the national payment system, and discloses the content of preliminary, ongoing and subsequent supervision. The author identifies and analyses the legal and organizational principles on the basis of which the Bank of Russia exercises supervision in the national payment system.
84-90 561
Abstract
Unfair tax competition implies the involvement of taxpayers in the economy of offshore zones and tax havens, which leads to the erosion of the tax base of other States. At present, most States are taking measures to counteract unfair tax competition: To this end, OECD member countries have developed recommendations to counteract unfair tax competition by means of adopting national legislation, supplementing bilateral and multilateral tax agreements, and enhancing international cooperation. In the course of the study, the author concludes that the most effective implementation of these measures requires cooperation of all the States concerned, since actions taken at the international level will be more effective than adoption of measures to combat unfair tax competition at national levels. A Russian legislative practice has been adopting the main methods of dealing with unfair tax competition, among them: Development of the legislation concerning controlled foreign companies in the sphere of transfer pricing, establishment of the system of automatic exchange of tax information and information received from financial market organizations.
91-95 522
Abstract
The paper deals with the issues related to the RF public debt regulation. The study carried out by the author has revealed that the current debt policy is central to the functioning of Russia public debt, as it lays the main lines for the development of debt relations that imply determination of types of loans, the structure of creditors and the strengthening of the state's credit rating. It is established that the Russian Federation currently has a ratio of public debt to gross domestic product of 17.7 per cent according to the International Monetary Fund, which does not constitute any threat to the national security of the State. Therefore, the RF Ministry of Finance is planning to increase the share of borrowed funds in the Russian budget revenue sources from 20% in 2016 to 91% in 2019. Russia allocated two tranches of mediumterm Eurobonds that have been purchased by investors from Great Britain, France, Switzerland, and, partly, from Asia and the USA. In addition, it is planned to issue federal loan bonds nominated in Chinese Yuan and directed at investors from the PRC.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

96-102 444
Abstract
This article researches topical issue related to the establishment of appropriate parties to an out-ofcourt settlement. It identifies gaps that could be eliminated through the preservation of the most effective provisions of the civil procedure law, given the legal positions formulated in arbitration court practice, which would be reflected in the prospective uniform code of civil procedure. The author suggests that the following parties be vested with the right for an out-of-court settlement: individuals involved in the disputed legal relationships, namely, the plaintiff, the defendant and a third party who raises independent claims. In exceptional circumstances it is necessary that the possibility of the involvement of a third party without independent claims when the settlement affects their rights and duties be provided by law.

BUSINESS AND CORPORATE LAW

103-114 465
Abstract
The article is devoted to the legal framework of naming biologically active additives. The authors suggest distinguishing a specific legal framework for names of biologically active additives, settling it on par with the legal framework of pharmaceuticals. It is proved that the name of biologically active additives, and the right to this name as marking or designation of a product arises from the moment of registration of the relevant BAD in the Federal Register of Permitted Biologically Active Additives. The authors propose to legislate the restrictions on names of biologically active additives taken from among the trade names of drugs and international generic names, as well as derive from them, or have significant similarities with them. Inadmissibility of registering close similar names for such products as dietary supplements and medicines will be one of the legal ways to protect the rights of both consumers and entrepreneurs. The necessity of introduction of additional requirements for the registration of the design of packaging, labeling, instructions on the use of dietary supplements, other than drugs for medical use is reasoned.
115-120 454
Abstract
The article gives the legal characteristic of an innovation, research and technology center and considers organizations, included in its structure. The rules of the project are treated as a special law, which the management company has. It is a joint-stock company and has the functions of the territorial managing authority of an innovation, research and technology center and carries out authority to regulate relations in the implementation of the project. The author provides his understanding of the innovation, research and technology center as a network of organizations, a kind of conglomeration, the purpose of which is the implementation of scientific and technological activities in the centre following the uniform rules for all project participants.

LABOR RELATIONS AND SOCIAL SECURITY

121-129 1182
Abstract
The object of the research is the employer's liability incurred in connection with the illegal deprivation of the employee the opportunity to work. The subject of research are the questions related to the concept of employer's liability for the delay in returning the employee his employment records book, current status and further development of the Labour Code norms, aimed at regulating the variety of the liability. The author analyses the term 'delay' used in par. 4 art. 234 of the Labour Code of the Russian Federation, which lakcs the definition of the term. This showed its ability to cover such categories as 'employment records book' and 'duplicate of the employment records book'. Particular attention is given to reviewing the existing opinion that the employer's liability for delay in returning the book occurs only in case of interference with the employee's application for another job. The methodological basis of the study is as follows: general scientific dialectic method, universal scientific methods (system and structural, functional, methods of analysis and synthesis, induction and deduction), as well as special scientific methods (comparative law, formal-logical). The novelty of the research lies in the consideration of the insufficiently studied labour law question of the employer's liability for the delay in returning the employment record book. Special contribution to the study of the liability of the employer is the scientific development of the 'delay' definition, which, according to the author, should be enshrined in par. 4 art. 234 of the Labour Code of the Russian Federation, as well as putting proposals on perfection of the labour law.

THE BAR AND NOTARY PUBLIC SERVICE

130-140 481
Abstract
In frames of realization of the State programme "Justice" the Ministry of Justice of Russia has developed the concept of market regulation of professional legal assistance. The concept was supported by the Federal Chamber of Lawyers of Russia. At the same time the paper is actively criticized by the legal community. The Concept has received many negative reviews from stakeholders, resulting in the refusal of the Government to adopt it. The concept involved such ideas as attorney monopoly on legal representation in all types of proceedings, legal monopoly on providing paid legal aid, commercialization of advocacy through the implementation of market mechanisms in the organization of the legal profession.

INTERNATIONAL LAW

141-150 351
Abstract
Classical conflict regulation of international contracts in practice is often confronted with the special institutions of private international law, such as public policy and overriding rules. International contract law chosen by the parties or set by the Court in accordance with conflict bindings does not affect those overriding rules, which, owing to their importance, among other thing ensure the rights and legally protected interests of parties to civil law, govern the relationship. The concept of overriding rules in private international law does not have a universally accepted definition. Given that the vast majority of such rules is not directly indicate their overriding status, their identification in practice becomes complicated. The author concludes that the study of the special status of the rule of law must take into account not only the regulations and enforcement practice, but also the doctrine. From these positions, in an integrated manner, the author analyses the rules on reduction/adjustment of penalties of various legal families. The study identified a heterogeneous approach of the continental system of law to the issue of overriding rules on reduction/adjustment of penalty. There are three main approaches to the problem. Also, taking into account the study of the various countries, legal sources revealed the Muslim legal family approach to the issue in question. It is regarded as more homogeneous.
151-159 604
Abstract
The author examines theoretical and practical aspects of cases of trans-boarder bankruptcy. In particular, it is proposed to distinguish criteria of bankruptcy, complicated by the foreign element, and its procedural models. The study is based on the analysis of domestic and foreign legislation, jurisprudence and legal doctrine. The article provides an overview of the prevailing approaches in defining the content of the principle of reciprocity to be applied within the framework for the certification of foreign judgments, as well as some peculiarities of its application by Russian courts. The author believes that the implementation of the Russian legal system and procedural models, which are actively applied in Europe and the United States, could be an incentive for greater interaction and economic co-operation with foreign partners.

COMPARATIVE LAW

160-166 761
Abstract
The study of legal regulation of financial relations of foreign countries using the comparative method makes it possible to better assess the processes taking place in the sphere of public finances. The French experience in the reform of the State financial control can be used when updating the system of financial control in Russia. The author tries to trace the origins of the State financial control procedures in Russia and France. The article briefly describes the stages of formation and development of State financial control in Russia and France for over eight centuries. The legal bases of public institutions that exercised control and supervisory functions in finance during this period are considered. This article may be of interest to the participants of the course in finance law, tax law, fiscal law, in particular the system of State control (supervision). Furthermore, it may be of interest to researchers and other persons directly involved in the development of procedures and tools through which the sphere of public finances is regulated.
167-171 509
Abstract
The article is devoted to the comparison of the concept of tax in the Republic of Korea and the Russian Federation. It establishes that the tax is a basic category and plays an important role in the theory of finance in general, and tax law in particular. In the scientific doctrine, there are many definitions of a tax. Based on the existing definitions, the author concludes that in the legal, economic, social and political science, tax definitions differ. For the first time in the science of finance law there is a comparative analysis of the considered definitions in two countries. It reveals that in the Russian Federation (hereinafter RF) there is a legal definition of tax, which is enshrined in the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code). At the same time, in the Republic of Korea (hereinafter RC) this term is not reflected in any law: it exists only in the scientific doctrine.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

172-179 738
Abstract
The article deals with the concept of enforcement of the right of citizens to healthy environment. Based on the analysis of the Federal Law "On Environmental Protection”, the Federal Law "On Protection of Atmospheric Air" and the Forestry Code of the Russian Federation it is concluded that the mechanism does not fully justify its purpose. The study shows that common social and legal guarantees for the realization of the right of citizens to healthy environment claimed at the scientific doctrine, in practice, cannot be fully applied for all the citizens of Russia. In other words, the mechanism of enforcement of the right of citizens to healthy environment, in fact, is not capable to fulfill the role for which it was intended. It can be stated that the mechanism aims at achieving the opposite goal instead of enforcement of the right to healthy environment, as it provides loosely controlled possibility to use the resources of the environment.


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