No 12 (2017)
LEGAL EDUCATION AND SCIENCE
11-16 529
Abstract
The reform of the modern system of education and scientific certification is based, to greater extent, on economic conditions, as well as on global trends that cumulatively represent challenges to which Russia cannot but react. However, normative consolidation of new legal structures within the educational system is very much similar to what has already existed in our country. An introduction of the three-level higher education showed its weaknesses in several aspects, which, in turn, needs further reflection and further improvement in the organization of education at different levels. It is precisely the emergence of a relatively new intermediate, i.e. Master's Degree Program, that seems to be the most controversial issue and in order to resolve it we have turned to our domestic historical experience in this paper.
17-26 375
Abstract
The article proposes an authorised approach to understanding the institutional system of professional and public accreditation of educational programmes, including the level of accreditation organizations, expert and organizational-methodological levels. The system in question has been analyzed in terms of its relevance to the intent of the law-maker set forth in legislative provisions; the author describes the cases of possible abuse of the rights granted. The author stresses the need to maintain the requirements of the labor market among the criteria of the professional and public accreditation procedure, which will result in filling in the gaps in legal regulation and reflect the specific demand for the skilled personnel in individual sectors of economy. The article notes the relevance of regulatory changes facilitating the implementation of tools applied by the Ministry of Education and Science of the Russian Federation to maintain the list of organizations conducting professional and public accreditation using modern information technology. Relevant monitoring mechanisms provide for the recognition of the potential and usefulness of the results of professional and public accreditation, inter alia, in the context of an administrative reform of the State control (supervision) over compliance with mandatory educational requirements.
27-35 428
Abstract
The article states the need to improve educational programs for forensic experts training in forensic speech expertise within the framework of legal education. The paper considers professional and qualifying requirements applied to a forensic expert and authorizing him to be engaged in forensic work in the exercise of his or her duties. The paper proposes a development strategy for the "Forensic Speech Expertise" Specialty (Specialty 40.05.03 "Forensic Expertise") based on a competence approach to experts practical training and their specialization. As a result of implementation of the proposed strategy for the development of training within the framework of specialization 40.05.03 "Forensic Speech Expertise" teaching of forensic and related disciplines will achieve a higher standard consistent with international standards. The strategy implementation will enable students to obtain not only theoretical knowledge, but also practical skills of dealing with the tools and equipment available to the state forensic expertise agencies, which will enable the students to join the work of these agencies immediately, thereby enhancing the effectiveness of law enforcement. This will result in strengthening the methodological support of the process of training that can further be used by both state and non-state forensic agencies and, of course, result in the economic effect. The expansion of international relations will help strengthen the position of domestic forensic experts at the international level and enhance the status and the role a domestic forensic science plays in the world.
PAGES OF HISTORY
36-43 797
Abstract
The authors prove that the establishment of the Peasants' Land Bank was the result of abolition of serfdom in Russia and the ensuing reform of an agricultural sector aimed at assisting liberated serfs in the purchase of land offered for sale. Liberated serfs had to be given land and, for this purpose, to be provided with the possibility of obtaining a land loan on preferential terms. The authors scrutinize the activities of the Peasants' Bank on the example of the Tambov Province and the regulatory acts lying at the heart of that activity. The final results of the land mortgage are subjected to thorough analysis. It turns out that the Peasants' Bank failed to achieve the goals of the reform of land relations, as the land use regime has not resulted in high yields and, consequently, limited the ability of peasants to pay mortgages back. The growth of debts prevented the development of agriculture and bankrupted the bank itself.
THE THEORY AND PHILOSOPHY OF LAW
44-53 596
Abstract
The article analyses social relations regulated by law in the context of identifying the patterns of law that have developed in the course of historical development. So far, the author has determined 10 patterns. They are all being examined and illustrated in detail, including: Increasing the specific weight (density) of legal regulation, broadening the scope of legal regulation, strengthening the specialization of legal regulation, increasing specification of law, accelerating dynamism of law, increasing degree of abstractiveness of law, increasing share of the general interest in law, proliferation of regulatory norms, increasing legal-technical capacity of law, and the unification of law. It is concluded that evolutionary patterns show that the importance and regulatory power of law are steadily growing.
54-62 1041
Abstract
The article takes a look at the approaches to a new category in domestic jurisprudence - 'pharmaceutical law'. The author defines the domain area of pharmaceutical law in Russia, and proposes to consider the body of norms governing relations in the sphere of circulation of medicines as a separate group, claiming the relative autonomy. On the one hand, the rules governing legal relations at separate phases of the lifecycle of medicines (clinical trials, medical use), have a genetic affinity with medicine, therefore, with medical law, intended to comprehensively and consistently regulate the given group of relations. On the other hand, they are adherent to economic activity (industrial - relationship to drug manufacture, and trade - movement of medicines from a producer to the end (citizen) or intermediate (represented by a medical institution, medical worker) consumer). Finally, they are a form of economic activity, therefore, have a relationship with business (economic) law. The article also draws attention to the unresolved question of the referral of the rules, governing the relative by their characteristics and purpose of medical products (medical devices, dietary supplements, etc.), to one or the other branch of law. By virtue of unity or substantial proximity of approaches to the legal regulation of the circulation of such goods, it is proposed to refer respective rules to substantive field of the nascent pharmaceutical law.
BANKING SYSTEM AND BANKING ACTIVITY
63-67 518
Abstract
The article provides a comparative analysis of the letter of credit execution under Russian law and Uniform Customs and Practice for Documentary Credits. All things considered, the author concludes that, despite amendments to Paragraph 3 Chapter 46 of the Civil Code of the RF concerning the letters of credit execution, after the adoption of the Federal Law of 26 July 2017 № 212-FZ, serious discrepancies in the legal regulation remain, inter alia, in the area of the order and principles of the letter of credit execution. Russian law does not provide for the deferred execution of the letter of credit, under UCP-600 the letter of credit cannot be executed through "other actions.” In turn, Russian law does not contain provisions concerning the concept of "negotiation" of the letter of credit. A legal peculiarity of the letter of credit under the UCP-600 as compared with the Civil Code of the RF is the opportunity set forth in the ICC to submit documents in accordance with the terms of the letter of credit not only to the issuing bank or performing bank but also to the confirming bank. The Civil Code of the Russian Federation does not contain any principles of bank verification of documents submitted to banks adopted in international banking practice: 1) due diligence, and 2) strict conformity of the documents submitted with the terms of the letter of credit.
LEGAL REGULATION IN THE INFORMATION SPHERE
68-77 1303
Abstract
The article systematically addresses basic approaches to the legal regulation of information systems in modern Russian legislation. The author identifies two sets of legal rules that form the legal regime of information systems the subject of which amounts to the information systems themselves and the rules governing legal rela tions concerning individual elements within the information systems, namely: computer programs, databases, information, technical tools and devices. The paper demonstrates how the legal regime of information systems is connected with the legal regime of its elements. An information and regulatory approach applied to the regulation of information systems focuses on the protection of personal data and counteraction to cyber crime. From a civil law perspective, information systems can be regarded as a complex object of a proprietary right and as a result of a works contract. Providing an analysis of the structure of proprietary rights to information systems and their law enforcement, the author proposes and justifies the extension of application of rules of law governing relations concerning a unified technology to the state and municipal information systems.
CIVIL AND FAMILY LAW
78-84 496
Abstract
In the paper, the author analyzes the cases where a right is contested and comes to the conclusion that contesting the right by a bona fide person of law is not a violation. Delimitation of the right contesting and its infringement should be carried out depending on whether the person contesting the right acted in good or bad faith. A good faith contesting of the right takes place when the person did not know and could not know that the other person did have a subjective right. Therefore, good faith contesting does not amount to the infringement of the right. Bad faith contesting that takes place when the contesting party knew or could have known about unreasonableness of her claims to the subjective right of another person, should, in the author's opinion, be qualified as an infringement of the right in the form of abuse (Article 10 of the Civil Code of the Russian Federation).
85-92 679
Abstract
In the process of legislation development, the rules of law governing relations associated with the implementation and protection of preferential rights are becoming increasingly significant. Implementation and protection of preferential rights highlight the trend towards expanding the range of preferential rights in civil law. Thus, for the first time, preferential rights for the participants of corporate legal relations have been envisaged at the legislative level. In contract relations, we can mention a preferential right to conclude a new contract for a new term. This rule is enshrined in chapters of the Civil Code devoted to employment and lease agreements. Hereditary legal relationships are based on a fairly large number of preferential rights. However, despite the fact that these rights are enshrined in the law, the problem resides in the lack of legal regulation. In the article, the author attempts to disclose the content of preferential rights and their positive and negative effects for the subjects of civil relations. The article analyses a number of cases considered by the court. The author's reasoning is underpinned by conclusions and proposals for the improvement of legislation.
93-100 455
Abstract
The legal regulation of foreign currency mortgages is one of the most pressing issues of contemporary civil and banking law. The relevance of the problem is determined by the fact that foreign currency mortgage is one of risky banking transactions that can cause considerable damage to all participants of banking transaction. The research is aimed at determining characteristics and patterns of legal regulation of property relations in the area of foreign currency mortgages as a type of banking transaction. To carry out the research, the author applies formal-legal and comparative-legal methods, methods analyzing the effectiveness of legal regulation. In the course of the research the author proves that the current state of regulation in the sphere of foreign currency mortgages is insufficient, as the law does not provide for necessary restrictions to execute the banking transaction in question. Also, the paper suggests a number of other conditions under which foreign currency mortgages are acceptable and that should be enshrined in law, including State assistance and aid to people affected by the foreign currency mortgage.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
101-106 432
Abstract
Compliance with the pre-trial procedure envisaged for the settlement of the dispute has traditionally been considered in the procedural literature as one of specific preconditions for the right to sue. However, after the Civil Procedural Code of the RF was adopted in 2002, it is considered by many scholars specialising in procedural issues as one of the conditions that constitute the procedure of bringing an action. The prerequisite of this was the distinction in the aforementioned Code drawn between the refusal to accept a claim and return of a claim as two types of judge's refusal to accept a claim. As the first ground to return the claim includes failure to comply with the pretrial procedure applied for the settlement of the dispute, the compliance with the procedure was associated with the right to sue. However, the paper focuses on the fact that the definition of the judge's refusal to accept the case for consideration in the CPC of the RF 2002 is associated not with the law-maker's views concerning the legal nature of the circumstances that served as grounds for refusing to accept the case and returning it, but with an intent to improve the legislation aimed at facilitating the procedure of determining the cases where, after a judge's refusal to accept an action, it is either impossible or possible to bring the same claim before the court.
LABOR RELATIONS AND SOCIAL SECURITY
107-112 1587
Abstract
The international community recognizes and enshrines in law the right of every person, as a member of society, to social security, which is determined by the onset of certain life circumstances (legal facts) recognized as social risks. The article analyzes the concept of social risk as a basis for social security and discusses factors that affect them. The author dwells upon the main types of social risks contained in international sources, as well as focuses on the phenomenon of atypical social risks. Recognition by the world community of new situations, which are not related to "classic" social risks from the point of view of the increasing level of social protection, is a very positive trend reflecting person's reaction to new challenges and risks, which arise at every next stage of civilization development. International social security standards guarantee everyone a decent standard of living upon the occurrence of relevant social risks.
113-116 811
Abstract
The article analyzes the essence of mediation and its applicability to the Labour Court, reveals the advantages of this way of resolving conflicts in the workplace, as well as identifies some of the problems of its implementation. In the work the authors highlight the main positive features of mediation, namely its confidentiality, voluntary, short time frame for a decision on the dispute, as well as the opportunity to come to a decision, to a common decision, satisfying both sides. The question about the difference between the solution to the dispute in labour disputes and mediation procedure is raised. According to the results of the study the authors conclude that the inclusion of mediation in labour disputes settlement system meets the objective of enhancing the stability of labour relations and stimulates the employees and employers to seek a balance of interests.
CRIMINAL LAW
117-124 909
Abstract
The article examines materials of the special UN International Independent Investigation Commission recognizing the crimes of the Islamic State terrorist organization (ISIS) against Iraq's Yazidis as genocide. There is a need for a positive response by the United Nations Security Council to the call of the Commission on referral of the Yazidis case to the International Criminal Court (ICC) or the creation of a Special Tribunal for these purposes. The necessity of the early recognition and condemnation of the genocide of the Yazidis by the State Duma of the Federal Assembly of the Russian Federation is highlighted. To suppress continuing to the present day genocide of the Yazidis and redrawing the ethno-religious maps of the region it is proposed to provide military and diplomatic aid to the Yazidi armed groups fighting against ISIS. Such a step is justified by the need to intensify the struggle against terrorists and terrorist organizations in Iraq itself, since the Yazidis are the most motivated to fight against Islamic radicals ethnic and religious minority.
125-134 756
Abstract
This article is devoted to the comparative legal analysis of a court fine (Criminal Code of the Russian Federation) and criminal compensation (Criminal Code of the Republic of Belarus). Enshrinement of this measure in the Criminal Code of the Russian Federation requires theoretical reflection and determination of possible problems of its application in practice. The authors study some aspects related to the definition of the legal nature of a court fine, its size, as well as the order and terms of payment. The article substantiates the inadvisability of enshrinement of provisions on court fine into Section VI of the Criminal Code of the Russian Federation. Some practical problems associated with the lack of legislative regulation of the size of the minimum court fine, the maximum court fine for minors are elicited. The lack of opportunities to use installments and flexible terms of payment are also considered as practical problems. All these issues are considered in comparison with similar provisions of the criminal law of Belarus governing the application of the criminal law of compensation and having some positive features. In particular, the Belarusian lawmaker did not create a separate chapter devoted to criminal compensation, but included the provisions thereof into articles devoted to the exemption from criminal responsibility in connection with the effective remorse and conditional sentence. In addition, declaring the objectives of criminal compensation, the minimum and maximum sizes of the measure and regulation of payment terms make it possible to propose a more detailed elaboration of the rules on criminal compensation in Belarusian legislation compared to the norms for a court fine in the Criminal Code of the Russian Federation. Based on the results obtained, the authors propose some ways to resolve the identified problems associated with the application of a court fine.
CRIMINAL PROCEDURE
135-140 1100
Abstract
The article discusses the features of court holdings in criminal proceedings as acts of the judiciary reflecting its basic features. It is concluded that such properties possess separate and independent nature, situation orientation, focus, integrity, commitment, regulatory nature, enforcement nature. Court decisions rendered in criminal proceedings, all together, shall meet the requirements of the completeness of the judiciary. In other words, they shall be made in such a way that the court during the hearing of a criminal case or consideration of a case is not limited in its procedural activity and possibility to study the matter in full. Besides, it shall not be bound by the position of the parties in a criminal case, has an appropriate procedure for the judicial control at all stages of criminal proceedings. Court holdings in criminal procedure act as the means of realization of its functions at different stages of the trial. In the concentrated form, they reflect the entire criminal proceedings and reveal the logical operations of the court on establishment of the facts of the case and their legal assessment. Court holdings provide the achievement of the objectives of the criminal proceedings in each individual case, organizing the legal relationship arising between actors contributing to the protection of the rights and lawful interests of individuals and public interests in criminal proceedings.
ENFORCEMENT OF PENALTIES
141-147 647
Abstract
The article analyzes the material criteria for assessing the degree of correction of the sentenced to imprisonment according to a range of socially significant requirements necessary for a positive solution to the issue of release on parole. The authors provide statistics on the number of exempted from serving the sentence of imprisonment following the application for parole. Conclusions about the causes of the reduction of the total number of petitions to the Court made by the sentenced to imprisonment are drawn. The authors consider the problems of application of release on parole to the convicted having committed offences of low-to-medium severity and having spent long time in custody in a remand prison. They make suggestions on improvement of legal regulation on the use of release on parole for this category of convicts.
INTERNATIONAL LAW
148-159 525
Abstract
The article provides system analysis of the modern Mexico's views on the most difficult and controversial reform of the UN Security Council, which was formed during several prior administrations. These views have been preserved under the current President Enrique Pena Nieto. The author considers historical aspect of Mexico's membership in the UN that takes the second place in Latin America for the economic development (with Brazil taking the lead) and is a founding member of this organization, and a higher speaker for contemporary international law. The author names a number of international legal instruments initiated and signed with the active participation of the Latin American countries on such issues as disarmament and denuclearization, the ban on the use of force and weapons in space activities, moratorium on the nuclear tests, arms trafficking, upholding human rights and freedoms. The article discusses particular views of Mexico on observance of the principle of non-interference in the internal affairs of States and enhancement of the transparency of the activities of the Security Council. A number of cases supports this principled position: the Kosovo crisis, the adoption of the American version of the UN Security Council resolution on Iraq, search for a solution to the conflict in Syria.
INTEGRATION LAW
160-163 430
Abstract
The article discusses some issues and legal aspects of building relationships between the European Union and large international organizations. The situation today is not an easy one. Moreover, it is complicated by the existing financial crisis. Still, it is this state of affairs that determines the importance of the view held by the countries on the redistribution of wealth. Given the existing circumstances, to achieve the objectives even developed countries have to unite with various international organizations. The European Union today is one of the largest suppliers of goods and services at the global level. Many financial, economic, political, and many other tasks cannot be solved without taking into account its views. This does not exclude the fact that by interacting with various international organizations, the European Union did not intend to achieve their own goals and objectives.
164-170 523
Abstract
The paper is written with the purpose to analyze international law norms determining the status of sailors and workers of offshore oil and gas platforms, as well as European Union instruments regulating systems of professional recognition for specific vocations. To achieve the goal the author applies the methods of analysis, synthesis, comparison and description of rules of law. The problem of determining an international law status of workers of oil and gas platforms results in weakening safety requirements at sea, complicating labor mobility of citizens of these professions, as well as complicating their professional recognition in the European Union. The research highlights an interdisciplinary problem that involves international and regional regulatory levels and suggests the ways to resolve it.
COMPARATIVE LAW
171-178 697
Abstract
The article analyzes the institute of a constitutional complaint as a means of protecting human rights and freedoms. The author considers essential features of this institution taking into account the standpoint of domestic and foreign researchers on the nature of a constitutional complaint, its types and key features. The author analyses the enshrinement of a constitutional complaint into the Russian legislation, as well as compares the foreign experience, including French, of the application of the institute. The development trends and upgradeability of the competence of the Constitutional Court of the Russian Federation at the present stage of development are noted. The author proposes changes to the current legislation of the Russian Federation in order to strengthen and enhance the effectiveness of the activities of the Constitutional Court of the Russian Federation and, in particular, in order to increase the level of protection of the human rights and freedoms.
LAW ENFORCEMENT
179-186 540
Abstract
This article covers the organization and implementation of the information and analytical work by the prosecuting authorities within public prosecutor's supervision over the compliance with the law on disposal of land. The concept of public prosecutor's supervision is developed in general, but also in relation to the sphere of legal relations relating to land. For the first time in public prosecutor's supervision knowledge the article highlights five main groups of sources for the Prosecutor General to obtain information on violations of the law in the disposal of land, the use of which will increase the efficiency of supervisory activities. The author proposes to understand 'proper information and analytical work' as the collection, accounting, accumulation and analysis of the information on the state of the law in this sphere of relations in order to define the priorities of supervision, measures to improve its effectiveness, formation plans, prepare and conduct inspections by the prosecutors and the application of appropriate measures in response to violations.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
187-193 820
Abstract
The article analyzes some theoretical problems related to the conceptual apparatus in the field of fishing industry development, fisheries, conservation and protection of aquatic biological resources crucial for improvement and realization of the public policy and legislation in this area. The authors provide characteristics of the fishing industry, contributing to an integrated cross-sectoral nature of regulation of relations in the field of business standards, environmental, natural resources, etc. branches of law. The relationship between the concepts of 'fishing industry' and 'fishery' is shown, their features are considered. The authors prove the necessity to eliminate inconsistencies between the content of the legal concepts 'protection', 'reproduction', 'rational use' of aquatic bioresources and conceptual approaches used when defining a conceptual apparatus in environmental and natural resources legislation. The problems of ensuring consistency of legal documents that define the goals, objectives and main directions of the public policy in this sphere, legislation and strategic planning are highlighted. The proposals for their improvement are substantiated.
CONFERENCES
194-200 406
Abstract
25 years ago, a new era of modern Russian history began. The political system changed, the country changed, and so did the philosophy itself. In these circumstances, the philosophers, the majority of whom were professors of philosophy, began to feel the urgent need for regular professional communication, backlog in the discussion of theoretical and practical problems. New national philosophy required new forms of organization. Such a form of organization of professionals in the field of philosophy became the Russian Philosophical Society (RPS). RPS became the initiator of the Russian philosophical congresses. The first Congress was held in 1997 in St. Petersburg. Since then, Congresses have become the favourite place for communication between Russian philosophers, as new philosophical relationships appear there, lining up new networks. The future of national philosophy is grounded on such congresses.
201-205 418
Abstract
Based on the analysis of the materials presented at the All-Russian Scientific Conference with International Participation "Evolution of Russian and Foreign State and Law dedicated to the 80 anniversary of the Department of History of State of the Urals State Law University (1936-2016)", the article shows major historical problems and their main stages and the direction of their evolution, as well as ways to resolve them. Particular attention is given to the consideration of works of the scientists of the Department-anniversary celebrant - the Department of History of State and Law of the Urals State Law University.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)