No 1 (2016)
THEORY OF LAW
18-25 2412
Abstract
Review. Some regional associations of states formed after the Second World War in order to provide economic, social and political integration of states of a certain region of the world (particularly, in Europe) have acquired the features of an organization that is political in its nature. Such associations have germs or even elements of particular public authority with regard to member-states and sometimes (by means of supranational law), to some extent, with regard to physical and legal entities of member-states. The high degree of centralization characterizes the European Union, the creation of which was declared in 1992 after a long period of integration development. Using the methodology of political science, constitutional law, comparative constitutional law, the author concludes that the EU has become a new particular form of a public-law (governmental) institution, namely, international regional public-law (governmental) institution. The organs of the EU (special type of EU bodies) make supranational law that is binding not only for member-states. It acts directly (without ratification or implementation) in member-states, it applies to their physical and legal entities and has supremacy over its national (domestic) law. However, we need to take into account that the EU law acts in member-states and is binding on physical and legal entities only within the limits of the sovereign rights and state powers that are assigned to the EU in accordance with constitutions of member-states. Such limits are determined in constitutions of the EU member-states when they join the EU in the most general form (acts of the EU must comply with human rights, democratic, legal, social state, etc.) and in an ambiguous way (sometimes the state sovereignty is said to be limited), but the principle of limitation of powers of a regional organization and the scope of applicability of supranational law is always determined in both member-states' constitutions and in constitutional documents of a regional organization.
26-33 761
Abstract
Review. The article analyzes opposing processes that are passing these days in the system of law, namely, convergence and divergence. In particular, the author describes convergence of private and public law, procedural law. The author also states that in architectonics of law, the processes of convergence that lead to creating new branches of law are passing simultaneously with divergence (when existing areas of law are separated). So far, in author's opinion, a new legal institution that is named administrative proceedings has separated from civil procedural and arbitration procedural law. In author's opinion, the system of law is a mobile legal category that unites rules of law into legal establishments by means of amalgamation and integration of existing areas of law.
34-41 1536
Abstract
Review. The article studies monitoring as a legal institution, considers the issues of legal nature of monitoring. The author has researched the institution of legal monitoring, its main features and subject matter. The author combines traditional in the legal scientific environment approaches to legal monitoring. The author researches in detail the subjects of legal monitoring, in particular, such subjects as Human Rights Ombudsmen, scientific research institutes and centers. The author gives a comparative analysis of the Russian experience and the experience of the Republic of Kazakhstan in carrying out the legal monitoring. The author draws the reader's attention to the importance of sharing experience in development of the legal monitoring for law-makers both in Russia and in Kazakhstan. Special attention is paid to the regional monitoring and to the monitoring the acts of governmental departments. The experience of developing and enacting draft model laws on the legal monitoring in the subjects of the Russian Federation is also of great interest. The author concludes that it is important and necessary to enact laws regulating the legal monitoring in Russia and to develop conceptual terminology in this area.
42-49 427
Abstract
Review. The article is devoted to the problem of defining the concept of inter-ethnic peace envisaged in the National Security Strategy of the Russian Federation until 2020 and the Strategy of State National Policy until 2015. However, the concept is not defined precisely. The author analyzes challenges to inter-ethnical peace set forth in the Strategy of State National Policy until 2015. The author formulates the initial thesis progressively disclosing it through the concepts of inter-ethnic conflict and discrepancy and he comes to understanding of the essence of inter-ethnic peace. Taking into account basic human needs for security and reproduction, repeatedly noted by psychologists, the author concludes that it is possible to monitor inter-ethnical peace through the dynamics of the number of mixed marriages. In support of this assumption, the author provides statistics that shows deterioration of ethnic relations in recent years against the data that demonstrates that the total number of mixed marriages decreases. The conclusion contains proposals to clarify the tasks of ensuring inter-ethnical peace and obligations of the authorized executive bodies of the subjects of the Russian Federation that carry out the monitoring of inter-ethnic relations.
CIVIL AND FAMILY LAW
93-99 452
Abstract
Review. The article is devoted to the problems of legal regulation of the termination of the contract on rendering tourist services. The author analyzes legislative provisions concerning tourism activities that envisage special grounds for terminating such a contract, and the procedure and consequences of terminating the contract on rendering tourist services on such grounds. In order to eliminate the revealed contradictions between the norms of a special law and general provisions of the civil law, the author puts forward a proposal to eliminate from the list the grounds describing significant change of circumstances contained in a special law that in their nature do not meet the criteria of such change and to convert this list from a closed list into an open one. The author has revealed the legal gap in regulation of the issues being considered because there are no precise criteria the document must meet in order to confirm the existence of the circumstances threatening the life, health and property of a tourist in the host country (place) and to provide grounds for terminating a contract using a special procedure. Therefore, the author proposed to legalize the status of such documents and to give such status to notifications publicized by authorized agencies.
100-107 768
Abstract
Review. Agreement on the establishment of usufruct is an independent civil contract. Based on the provisions of the Draft Law on Amendments to the Civil Code of the Russian Federation (hereinafter the Draft Law), the author reveals the legal nature of the agreement on the establishment of usufruct, considering its constitutive features, essential terms and conditions, rights and obligations of the parties.
108-116 631
Abstract
Review. The article considers the concept of the right of the developer to the building and how it differs from related concepts. The author briefly describes the history and reasons of appearing of the building lease in France and in Russia and analyzes the situations when the right to building appears on a built-up site and an undeveloped site within the framework of building lease; the article also reveals the legal nature of the right to the building under Russian and French legislation.
CRIMINAL PROCEDURE
141-149 1135
Abstract
The article defines the dependence of the procedural form of criminal proceedings and its differentiation on the needs of the society at different stages of its development. Overly simplified dissemination of criminal proceedings leads to the abandonment of a full proof in the majority of criminal cases. The author defines the limits of possible simplification of forms of criminal proceedings. The fact-track criminal procedures - a special criminal procedure on plea of guilty and plea agreement - do not comply with the objectives of criminal proceedings and do not fully protect the interests of any person, the interests of the society and the state. The article outlines the main directions for reforming the fast-track criminal procedure and proposes to limit the possibility of a special procedure for rendering a decision to the categories of criminal cases such as lesser gravity and medium gravity crimes, and to clearly define the elements of crime which allow plea agreement.
150-154 803
Abstract
The article analyzes the provisions of Article 389.13 of the RF Code of Criminal Procedure governing the questioning in court of appeal previously questioned and new witnesses. Moreover, it considers its compliance with the norm of Part 4 of Article 271 of the RF Code of Criminal Procedure on the mandatory examination of witnesses who appeared in court on the initiative of the parties. Taking into account the balance between the rights and interests of the participants in the proceedings the author proposes to settle the cases of compulsory questioning of witnesses legislatively, taking into account the proper implementation of the parties' procedural functions earlier in the trial court.
THE BAR AND NOTARY PUBLIC SERVICE
155-165 774
Abstract
The article features two kinds of constitutional proceedings - proceedings on complaints of citizens and requests from courts - that determine the uniqueness of representation of the interests of the client by the lawyer. The author analyzes the quality of uncertainty as the basis for proceedings in a case on the constitutional complaint in the Constitutional Court. Theoretical position on the inaccuracies of the language and other aspects of uncertainty are illustrated with the examples from the practice of the Constitutional Court of the Russian Federation. The author also determines which rights are to be protected by the Constitutional Court and how their violations can be expressed. The use of particular examples of judicial practice demonstrates the content of one of the constitutional rights - the right for qualified legal assistance, as well as the presence or absence of violation of this right. The subject of a constitutional complaint is determined. Consideration of the characteristics of the proceedings at the request of the court allows the author to conclude that in exercising representation on a civil or criminal case not only a judge but also a lawyer has the right to initiate a judicial inquiry in the Constitutional Court. The article analyzes the issues of representation in the constitutional (charter) courts of the subjects of the Russian Federation in the proceedings on citizens' complaints.
КОНСТИТУЦИОННОЕ И МУНИЦИПАЛЬНОЕ ПРАВО
50-57 2044
Abstract
Review. The article considers the variability of the constitutional right to private property. The author determines perspectives and tendencies of development of the constitutional right to private property in the modern world, for instance, convergence of legal systems in the regulation of private property rights; weakening of individual private property of citizens; strengthening and growth of corporate property; expansion of the objects of constitutional right to property.
58-62 2371
Abstract
Review. The problem of acquiring citizenship by compatriots living abroad remains pending as legal regulation of this sphere of legal relations is still being reformed. The Russian Federation is interested in "returning" to its territory those who in their views, culture, mentality and language are similar to the residents of the State. However, different categories of aliens, including illegal ones, tend to come to Russia and they will not bring any benefit to the country and its citizens. Therefore, the state constantly sets "filters" to prevent aliens from coming to Russia. Such legislative amendments, unfortunately, are detrimental to compatriots living abroad. The article considers this problem in detail and suggests a number of measures that can help overcome this problem. Legislative innovations have facilitated the procedure of acquiring citizenship only at first sight; in practice the situation has changed for the worse. Therefore, in some cases it is reasonable to return to previous versions of laws, in other cases new methods of legal regulation of relevant public relations should be proposed.
К 85-ЛЕТИЮ ВЮЗИ-МЮИ-МГЮА
10-17 445
Abstract
Review. The Article is devoted to the development of the doctrine of complicity in the works of representatives of the scientific school of criminal law of All- Union Correspondence Institute of Law (AUCIL). The author identified and studied the theoretical foundation used by the representatives of the AUCIL scientific school including scientific works written by pre-revolutionary Russian criminologists and scientists of the Soviet period. In chronological order, the article analyzes the most important researches of the norms of complicity undertaken by the members of the AUCIL Department of Criminal Law and highlights research results that remain relevant to this day. In particular, the author has analyzed scientific approaches to such issues as the concept and elements of complicity, categories of accomplices, types of complicity, phenomena related to crime complicity (a collective method of committing a crime, implication or involvement in a crime), the legal nature of complicity. The author considers discussions devoted to specific scientific problems, in which the members of the AUCIL Department of Criminal Law participated. In particular the author dwells on the element of conspiracy to commit a crime as a compulsory element of complicity within the framework of the AUCIL-MSAL-Kutafin University scientific school. The author revealed a promising direction of the further study of complicity, namely, foreign law rules regarding complicity in a crime.
АДМИНИСТРАТИВНОЕ ПРАВО И ПРОЦЕСС
63-75 569
Abstract
Review. The Article analyzes the most controversial provisions of the concept of the draft law "On the Basis of State and Municipal Control (Supervision)" and the draft federal law "On the Basis of State and Municipal control and Supervision in the Russian Federation". The Authors propose the ways to improve legislation in the sphere of state (municipal) control.
76-84 813
Abstract
Review. The article defines the element of admissibility as the primary characteristic of the evidence in administrative offences and provides criteria and functions of admissibility. On the basis of the provisions of the General Part of the Administrative Code, clarifications of the Supreme judicial bodies, judicial practice concerning administrative offences in the sphere of environmental protection, the author justifies the conclusion that it is necessary to categorize violations committed during administrative proceedings and determines the grounds for recognizing their materiality that entail the loss of effect for the evidence. The methodological basis of the research is formed by general scientific (dialectical materialistic analysis and synthesis) and specific scientific (systematic structural, comparative legal, statistical, formal and legal) methods of scientific cognition. The research brings about the conclusion that declaration of inadmissibility of evidence is connected with determination of gravity of law violations with regard to their materiality that casts doubt on the information acquired, determination of a grave violation of the Administrative Code provisions aimed at the protection of rights of an individual against whom administrative proceedings have been initiated or against other participants of administrative proceedings. The author provides proposals for supplementing the Administrative Code with legal norms governing the procedure of recognizing the evidence inadmissible.
ЗЕМЕЛЬНОЕ И ЭКОЛОГИЧЕСКОЕ ПРАВО
85-92 626
Abstract
Review. The article analyzes effective legislation in the sphere of compensating for the past (accumulated) environmental harm caused by subsoil management. In conclusion the authors reveal the gaps in legal regulation of this sphere, namely, the lack of a fundamental legal act governing the procedure of compensating for the past (accumulated) environmental harm, techniques of identification, assessment, and evaluation of the past environmental harm connected with economic activities of subsoil users, the absence of unified systematic data base on objects/ sources of environmental harm, and on the territories contaminated as a result of economic activities of subsoil users.
ГРАЖДАНСКИЙ И АРБИТРАЖНЫЙ ПРОЦЕСС
117-125 764
Abstract
Review. The author researches the legal concept of self-recusal of the judge in civil proceedings and opportunities for its improvement. The author considers that the existing procedure of dealing with applications for self-recusal needs to be improved. As a result of research the author concludes that the application for self- recusal has priority over disqualification and believes that this should be reflected in the title of the relevant chapter of the Civil Procedure Code of the Russian Federation. In addition, the procedures of applying for self-recusal and considering applications need to be changed. The author suggests that the judge should be relieved of the necessity to disclose the reasons of self-recusal and such a procedure should be secured when the self-recusal application means an approved self-recusal. Thus, it seems appropriate to provide for prohibition to apply for self-recusal if there is an application for judge's disqualification.
УГОЛОВНОЕ ПРАВО И КРИМИНОЛОГИЯ
126-134 439
Abstract
Review. The article is devoted to the issues of criminal liability regulation for malicious evasion of paying allowances and alimony (art. 157 of the Criminal Code of the Russian Federation). Given the cross-sectoral connections, the author proves the imperfection of existing regulation. The researcher considers the element of malicious intent, treating funds necessary to cover additional expenses as alimony, a limited range of subjects and victims of the crime in question, issues of differentiation of responsibility and punishability. On the basis of the conducted analyses the author proposes a new version of this legal norm.
135-140 574
Abstract
The article provides a detailed analysis of offences committed by the officers of the penitentiary system depending on the department of a correctional institution. The researcher determined the most vulnerable services in a correctional institution (a CI) that may constitute a risk group. The author analyzed more than 400 convictions for the offences committed by officers of the penitentiary system and the statistic data gave grounds to identify certain patterns in their legal characterization and make forecast for the future. The biggest number of offences committed by offices of a CI are offences of corruption. However, considering the main elements of the offences we came to the conclusions that the most widespread offences committed by the officers of the penitentiary system are crimes against public health and crimes against public morality. A greatest number of such crimes according to the data provided by the researcher are committed by the personnel of security and regime departments in correctional institutions and detention centers.
СРАВНИТЕЛЬНОЕ ПРАВО
166-171 487
Abstract
The article notes that one of the forms of direct participation of citizens in local government are meetings and conferences. The author analyzes the relation of the Russian law which regulates meetings and conferences, and the right of assembly and association in France. The article provides a domestic and foreign practice of organizing meetings and conferences devoted to the problems and prospects of development of this form of municipal democracy, formulated proposals for improving the mechanism for organizing meetings and conferences of citizens.
172-179 517
Abstract
The article analyses the legal norms of the Criminal Procedure Codes of the Republic of Belarus and Ukraine. The Codes govern the concept and application of measures for ensuring criminal proceedings, namely detention. The article presents the polls of judges, prosecutors, investigators, lawyers of the Republic of Belarus, Ukraine and the United Kingdom, and proposes some changes in the norms of the Criminal Procedure Codes of Belarus and Ukraine.
МЕЖДУНАРОДНОЕ ПУБЛИЧНОЕ ПРАВО
180-186 474
Abstract
Europe took the first steps in building railways and this led to its leadership in the harmonization of international railway law. The process of harmonization proceeded first to the regional level, but its way beyond that level has been filled with obstacles. The differences in the development and the interests of the states and the imprint of colonial European powers did not allow the conventions to become a universal regulator of interstate rail relations. All these drawbacks have accompanied us up to the present.
187-194 489
Abstract
Based on the provisions of the Eurasian Economic Union law, the article analyzes the legal framework for the mechanisms of preparation for clarification of the provisions of acts of the Eurasian Economic Union in order to determine the order initiating their preparation. The author outlines the acts of the Eurasian Economic Union, the provisions of which shall be subject to clarification. The article identifies the authorized body of the Eurasian Economic Union, endowed with the right for preparation of clarifications of the provisions of these acts, establishes the range of persons who have the right to address the competent authority of the Eurasian Economic Union with a request for the clarification, and touches upon the order of their selection. Following the polls of a number of persons who have the right to address the competent authority of the Eurasian Economic Union with a request for the clarification, the author establishes some valid options (ways) for interpretation of the acts of the Eurasian Economic Union by persons vested with the right to appeal to the competent authority of the Eurasian Economic Union with the appropriate application for clarification. The author defines the procedure for submitting requests for clarification of provisions of the acts by the persons who have the right to appeal to the competent authority of the Eurasian Economic Union. At the same time, the author analyses the possibility of creating indirect acts of interpretation by the Eurasian Economic Commission based on the requests of interested persons in relation to decisions made by the Eurasian Economic Commission itself. The article considers the approaches to the establishment of interpretive process in the Eurasian Economic Union before and after the start of its work, and identifies their distinctive features.
ПРАВО ЕВРОПЕЙСКОГО СОЮЗА
195-204 524
Abstract
Identification of the position of the European Court of Human Rights concerning the basic legal principles is now of paramount importance, especially due to the need to define approaches to legal proceedings which are in conflict with the national model. The analysis of the ECHR decisions, describing its understanding of the autonomy of an individual, not only reveals the importance of the principle of self-determination of an individual in consideration of specific complaints, but also identifies the prevailing trends in the socio-cultural and legal development of the European community. In the context of transformation of socio-cultural space of the world community, which entails a corresponding change in the position of the representatives of the judicial community on basic legal values and principles, the author recommends researching the available views and approaches to their understanding, as well as studies of the dynamics of the general interpretation of basic legal principles.
205-212 462
Abstract
The article briefly analyses the major provisions of the draft directive on a common consolidated corporate tax base and the results of the working group on preparation of the Directive. The taxation of a corporate group, namely the parent and its subsidiaries, faces the tension between a legal separation, on the one hand, and economic integration on the other hand. It is noted that the tensions between the tax sovereignty of individual states and actions for development of the common market can only be improved by taking into account the views of opposing interests of each party. Apparently, the common market cannot receive automatic prevalence as its mechanisms are far from being perfect. The study concludes that there is a need to adapt the tax legislation of the Member States to the requirements of the internal market laid down in the European treaties.
МЕЖДУНАРОДНОЕ ЧАСТНОЕ ПРАВО
213-220 678
Abstract
Despite the fact that the procedure of transnational adoption can be successfully completed in accordance with the laws of the State of origin as well as with the laws of the receiving State, the recognition of this decision is still an urgent issue. The competent authorities or even the court of the receiving State should state that the adoption order made in the State of origin is legal. Still, sometimes it is necessary to pass a new procedure of re-adoption. Only after this procedure, a child is entitled a right to inherit and a right to apply for the citizenship of the receiving State. Another problem highlighted in this article is legal consequences of the adoption and the equivalent of this form of childcare in Islamic States called 'kafala'. The analysis of judicial practice demonstrates that there are still a lot of collisions of interests between both the foreign adoptive parents and the legal system of the State of origin of the child, and between the adopter and the laws of the receiving state.
LEGAL EDUCATION
221-225 424
Abstract
The article analyzes a number of draft documents, the adoption of which is aimed at changes in the state system of scientific appraisal, awarding of academic degrees. It is concluded that the proposed changes are actually aimed at turning the existing system into a state and public one. Particular attention is paid to possible criteria for granting research and educational organizations with the rights of independent adoption of the provision on dissertation councils and the formation of dissertation councils, exercising control over their operations, suspension, resumption and termination of the Councils.
226-232 398
Abstract
Following domestic and foreign experience, the author identifies and analyzes the basic models of the legal status of academic staff which differ in nature and degree of state control over their teaching and research activities: statist (Russia and the former USSR), liberal (USA being a typical representative), and liberal-statist (France). The author believes that Russia should move in the direction of the liberal-statist model and extend the autonomy of universities, including the awarding of academic degrees and titles. However, it is important to be wary of university rankings and citation indices, which, as the studies of the European University Association show, do not always give objective results.
233-235 426
Abstract
Under comparative law method, the author considers the legal status of professors, associate professors and other academic staff of higher educational institutions of the USA, Canada and the Member States of the European Union. Specifically, the author identifies common and special features that characterize the system of academic degrees and titles of scientific and pedagogical workers in these countries, the legal regulation of employment, wages and other working conditions, evaluation and quality control of the research activities.
236-245 735
Abstract
From 23 to 29 of June 2015 Kutafin Moscow State Law University held the Summer School for Young Scientists - 2015 for postgraduates and young teachers of leading law schools of the country. The major area for discussion was "Legal knowledge: the theory, methodology, practice". This article describes the contents of the main activities that were carried out within the framework of the school and shows the research methods that caused the most heated debates (systematic approach, method of legal modeling, mathematical methods, etc.). The article provides an overview of the meetings with well-known people in the field of legal science.
REVIEWS
246-249 722
Abstract
The article presents the author's view on the monograph by S.V. Kabysheva and A.D. Ermakova titled "Constitutional objectives of political parties of modern Russia" and notes the continuing importance of the study of the issues related to the formation and development of a multiparty system in Russia. The monograph considers the issues of constitutional objectives of political parties as the basis of program-ideological activities of the parties in modern Russia and states that it is not only linked with multiple increase in the number of registered political parties, but also with the need for clear legal consolidation of the constitutional objectives of political parties. The authors of the monograph provide an all-round description of the term "constitutional objectives of political parties", reveal some gaps and imperfections of legal regulation, and offer their vision of the conceptual and categorical range of the subject in question. The review shows both shortcomings of the study and the importance for the development of the theoretical foundations of the multiparty system in the Russian Federation.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)