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Actual Problems of Russian Law

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No 1 (2018)

THEORY OF LAW

11-16 558
Abstract
The paper attempts to summarize the opinions of practicing lawyers concerning the social value of law. Carrying out the research the author has analyzed the results of the survey of judges, prosecutors, investigators, advocates, legal advisers, notaries and bailiffs. The opinion of lawyers concerning the social value of law is summarized in accordance with their working experience, age and gender. In this paper the author makes an initial attempt to clarify the attitude to law as a social value. Meanwhile, in the author's opinion, this problem needs a thorough and comprehensive study with the use of the resources of the sociological science; this article can be considered as an invitation to further scientific discussion.

PHILOSOPHY AND ETHICS OF LAW

17-25 606
Abstract
The article considers the views concerning the State and Law expressed by Aleksey A. Borovoy, one of the theorists of Russian anarchism in the early 21st century. The first part of the paper highlights paradigmatic foundations of anarcho-humanism. When analyzing the content of this specific doctrine, the author emphasizes Borovoy's concern for the category of morality, which defines the constitution of the personality, as well as for the moral component using which Borovoy, with all individualism inherent in him, manages to dissociate himself from absolute "egoism." The second part of the article is devoted to the criticism of the "system of government" and institutional political forms getting rid of which, in the theorist's view, can be predetermined by technological progress. Also, the article analyzes the role, essence and foundations of law in Borovoy's system of views -it underlines the socio-psychological legal understanding of anarcho-humanism that is opposed to the state legalism.
26-34 455
Abstract
The article deals with the issues of interrelation between education and morality. The author analyzes concepts of understanding morality, in particular the views of Kant and Hegel. With the emergence of a world community, we can talk about a new form of objective morality, the key to which is the system of academic recognition. Thus, the latter constitutes a mechanism for the development of the moral foundation of the world community.

STATE POWER AND LOCAL SELF-GOVERNMENT

35-40 2028
Abstract
The subject of the paper covers the issues of the legal regulation of the Government's responsibility to the Russian Parliament. The paper focuses on the issues of responsibility of the executive power to the legislature. The author has carried out an analysis of the legal regulation of the Government's responsibility under Constitutional Law that it owes to the Parliament and determines the main problems of organizational and legal character in the area in question. The relevant literature analysis has revealed the main shortcomings of the legal regulation of parliamentary responsibility in Russian legislation. The paper focuses on the development of legislative approaches that reinforce the control powers of the legislature. The main conclusion of the study is that the legislation regulating parliamentary responsibility of the Government of the Russian Federation needs further improvement. The novelty of the article is as follows: the author makes proposals for the further improvement of the legislation in the aspect of ensuring effective parliamentary control over the activities of the executive branch at the federal level, in particular, the author makes proposals with regard to the introduction of grounds that could give rise to parliamentary responsibility, the introduction of the institution of individual parliamentary responsibility, amandments to some constitutional norms.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

41-46 379
Abstract
The paper in question is devoted to the application of Article 28 of the Federal Law "On Public Associations" that restricts the right of non-commercial organizations to use in the name of a non-governmental association the names of government agencies, bodies of local self-government, Armed Forces of the Russian Federation, other forces and military units unless otherwise established by the legislation of the Russian Federation, or the names similar to the names mentioned above to the degree of confusion. In a similar vein, the research allows to conclude that public organizations often use constituent parts of names of governmental bodies and institutions (Committee, Agency, Service, Inspection, Department, etc.) in their names, use words and expressions consonant with functions and activities of governmental agencies and bodies of local self-government ("control," "supervision," "State Security," "City Council," etc.). As a result, citizens associate the activities of the non-governemental organization with the State and its involvement into the activities of the organization, or with the particular importance of the activities of this organization for the public interest. Thus, an unacceptable perception of the organization in society appears. Thus, the author suggests that designations contradicting public interests, leading to the unacceptable perception of the organization due to the use of words that cause persistent association with the participation of the State in the activities of the non-governmental organization should be prohibited in the names of non-governmental organizations.

FINANCIAL LAW

47-53 1348
Abstract
The article is devoted to "the zero reading" that is applied in the sphere of budget activities. The paper scrutinises the essence of "the zero reading," its importance and expediency of its use in the budget process of the Russian Federation. It is noted, that the zero reading is a procedure not provided for by the Budget Code of the Russian Federation that presupposes preliminary consultations of the Government with the State Duma of the Russian Federation before the official introduction of the draft Federal Law on the Federal Budget for the next fiscal year and the planned period and aimed at preliminary harmonization of stances of the Government and the lower chamber of the Parliament. According to the research results, it is concluded that the procedure of "the zero reading" contradicts the principle of consecutive entry of legislative and executive powers into the budgetary process as one of the basic principles of the budget process; the author justifies the necessity of enshrining "the zero reading" in the Budget Code of the Russian Federation.
54-59 408
Abstract
An increase in the number of tax disputes related to withholding taxes from earnings paid by Russian organizations to theirforeign counterparties has posed a question to the courts concerning engaging representatives of a foreign taxpayer organization in court proceedings as a third party. An ambiguous jurisprudence concerning necessity to attract such representatives results in violating a constitutional right to judicial protection, as otherwise the foreign taxpayer organization cannot protect its property rights in its relations with the Russian Federation.

CIVIL AND FAMILY LAW

60-68 763
Abstract
The article reveals the real reasons of low demand for the institute of analogy in the law enforcement activity and limited coverage of instances of application of analogy of the law and analogy of law in judicial acts. The paper highlights the lack of due attention to the institute of analogy in modern study materials on civil law. Also, it draws attention to the insufficiency of scientific research of the phenomenon of analogy in Civil Law. In few dissertations (theses) devoted to civil law issues the author highlights the use of a narrow, predominantly theoretical, approach to analogy as one of specific instances in the system of ways applied to overcome gaps in Civil Law. In view of a noticeable change in the attitude of the law-maker with regard to the analogy and the emergence of the latest law enforcement approaches to the implementation of the analogy of the law and the analogy of law, including the level of the higher courts, the author substantiates the necessity of facilitating the complex study of analogy not as an abstract legal structure, but as an element of modern legal technique, as a means of implementation and protection of civil rights, as a stage of application of law and a factor encouraging the civil law development.
69-76 626
Abstract
The article is devoted to the issue of subsidiary responsibility of the owners of the property of unitary enterprises concerning obligations of the owners of the property of unitary enterprises to the creditors when effective measures are not taken to restore the size of the company's net assets. The relevance of the subject is predetermined, on the one hand, by the lack of clear reference to this ground as the ground for responsibility in the law, and, on the other hand, the acuteness of the problem due to the large number of insolvency procedures (bankruptcies) of unitary enterprises and a significant number of claims from creditors and receivers requiring to hold public entities responsible under subsidiary responsibility. The article analyzes the concept of net assets, the value of this financial indicator inferred by the Constitutional Court of the Russian Federation, the economic and legal essence of Russian unitary enterprises that is taken into account by the European Court of Human Rights in the majority of cases dealt with by the ECHR. A systematic analysis of the legislation regulating the activity of unitary enterprises, as well as bankruptcy legislation, allows to conclude that even now there are the reasons to hold public entities responsible under subsidiary responsibility if they endure unprofitability of enterprises they have created and fail to take measures to maintain the positive value of net assets.
77-87 662
Abstract
This article attempts to consider an alimony relationship in the context of the balance of interests. The paper highlights peculiarities of the balance of interests in family legal relations, primarily in the legal relations related to the principle of ensuring the interests of minors and disabled family members. It is concluded that the balance of interests should be understood as the family legal relation where the rights and obligations of the parties are proportionate and the rights and legitimate interests of minors and disabled family members are properly protected. The balance of interests in alimony legal relations is considered at three levels: Legislative, law enforcement and individual (the level of agreements between the subjects of family Law), - and at three stages of the alimony legal relation: formalization of alimony obligation, fulfillment of alimony obligation, and changes and termination of the obligation. At the stage of the alimony obligation formalization, in order to ensure the balance of interests it is necessary, first, to establish the appropriate subjects of alimony obligations and their scope. However, both parties can be involved in abuses; the weaker side of the legal relation may also abuse its right to alimony. Ensuring the balance of interests at the stage of fulfillment of alimony obligations is primarily aimed at maintaining a decent standard of living for all participants of alimony legal relations. When alimony obligations are modified or terminated, a situational method of the family relations regulation plays an important role, in particular, if the amount of alimony payable is changed. The RF Constitutional Court clarifications play a significant role in ensuring the balance of interests in alimony relations.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

88-94 473
Abstract
The paper is devoted to the study of application of an interim measure in the form of suspension of enforcement of a contested enforcement order or other instrument when its enforcement is carried out in an uncontested manner (without acceptance) in arbitration process. The author reveals controversial issues of its application in accordance with separate categories of cases on the basis of jurisprudence: ambiguity in the understanding of arbitration process on behalf of the parties filing motions, the issue concerning distinction and interconnection of different types of interim measures, misinterpretation of legal norms resulting in the error of merging of two independent interim measures into one, etc. Heterogeneity of jurisprudence indicates the need to develop a uniform approach to resolving controversial issues. The author believes that elaboration of the draft Unified Code of Civil Procedure, as well as clarifications of the Plenum of the Supreme Court of the Russian Federation would clarify the problems in question.

SPORTS LAW

95-102 572
Abstract
The relevance of the subject in question is predetermined by the necessity to introduce extra-judicial methods of dispute resolution in civil cases and labor disputes that allow to resolve the dispute in compliance with the principles of voluntariness and good faith without the threat of court enforcement. The purpose of the research is to analyze the problems and prospects of the institute of sports mediation in resolving sports disputes. To achieve this goal, the author sets objectives aimed at examination of "sports disputes," the study of the activities of the committees for dispute resolution within the framework of sports federations, the possibility of applying the notion of "mediation" in interpretation of the Law on Mediation. A methodological basis of the study is formed by a dialectical method, i.e. the scientific method of cognition of reality, and special and particular legal methods of studying legal phenomena: Systematic-structured method, comparative and legal method, formal and legal method, etc. The study scrutinizes the works of such experts in the field of sports law as: Alekseev S.V., Brilliantova A.M., Veger F. de., Zaitsev Yu.V., Ishchenko S.A., Cusin V.V., Kuznetsov I.S., Kutepov M.E., Lebedev M.A., Orlov E.V., Poghosyan E.V., Prokopets M.A., Rogachev D.I., Chubarov V.V. As a result of examination of modern works in the field of sports law it is concluded that the institute of sports mediation at present is considered mainly on examples of activities of committees for dispute resolution in sports federations. In the author's opinion, this approach is incorrect, as the committees are subordinate to sports federations which, in turn, act as employers for many participants of sports disputes. Therefore, such committees can not be called independent from the parties to the dispute, which is contrary to the requirements applied to mediators under the Law on Mediation. To resolve the problem, the author proposes the creation of an independent chamber for the resolution of sports disputes. The jurisdiction of the Chamber would cover mediation only, rather than issuing binding and mandatory decisions.

CRIMINAL LAW

103-110 577
Abstract
Transport security, as part of national security, is designed to provide comprehensive protection for the transport industry. However, the legislator does not fully take into account the new current transportation security threats, which are due to the contemporary development of science engineering and technology. Self-driving vehicles are starting to be implemented intensively, meanwhile, legal regulation of their operation is clearly lagging behind moving forward progress. At the same time, the multiplicity of actors involved in building and maintaining these types of transport, as well as the software, accounts for the difficulty in identifying the culprit in creating threats to transport security and causing harm as a result of their misuse. The question on the forms and degrees of responsibility still lacks amswers. In the light of the foregoing, the article explores topical issues of legal regulation of the exploitation of self-driving vehicles. Their definition, classification, difference from other aircrafts are analyzed. The issues of establishing criminal responsibility for wrongful use of drones are studied.
111-119 3044
Abstract
The article deals with the problem of establishing the content of the term "business" as the constitutive sign of fraud, which is set forth in Art. 159 Part 5-7 of the Criminal Code of the Russian Federation. The author examines the perspective of researchers, the provisions of the law and judicial practice. The author justifies the conclusion that when interpreting the term "business" law enforcers should refer to the definition of the term "entrepreneurship", which is given in p. 1 of art. 2 of the Civil Code of the Russian Federation. The article notes that in order to improve the quality of law enforcement forensic investigative authorities need additional guidance, making it possible to differentiate between an overall elements of fraud and fraud committed in the sphere of entrepreneurial activity. On the basis of court practice on applying the rules on liability for business fraud and criminal law doctrine the author formulates criteria influencing the settlement of the question of the existence or absence of a feature of "entrepreneurial activity" in classification of fraudulent attacks.
120-125 2694
Abstract
The article discusses selected issues of practice in applying articles 2054,2055 enshrined into the Criminal Code of the Russian Federation (CC RF) in November 2013. The author analyzes the recommendations thereon contained in the decision of the Plenum of the Supreme Court of the Russian Federation of 03.11.2016 No.41. This document, above all, clarify the moments of the crimes end such as the creation of a terrorist organization, leading them and participating in this community (art. 2054 CC RF), as well as the organization of activities of a terrorist organization and participation in its activities (article 2055 of the CC RF). In doing so, the Plenum of the Supreme Court of the Russian Federation not only defines the end points of the crimes, but also sets an indicative range of actions they cover. This article discusses the case materials with respect to the explanations of the Plenum of the Supreme Court of the Russian Federation. The author also comments on the concept of "creating a terrorist community".

CRIMINAL PROCEDURE

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

133-141 478
Abstract
The article deals with the problem of an objective assessment of the reliability of results of forensic art expertise in psychological legal context. The author identifies formal and informal criteria for an objective assessment of the reliability of the expert information. Special attention is given to: "objective", "objectively," "objectivity," "objectify", "objectification" correlated with academic terms. Based on the characteristics of expert activity, the author explores: the structure of objective information; organization of scientific expertise; the objectivity of the ideological positions of the subjects of expertise, defining a plurality of values and criteria of objectivity, evidence of their confidence. The importance of the objectivity is revealed through the study of: conditions of objectivity and stages of objectification of evaluation. It is determined that an objective assessment of the outcome of the examination is based on the optimal (in proceedings) interaction of actors of examination that possess native (dual) axiological notions: professional (legal) knowledge and moral senses of subjects of expertise. It is shown that: objective assessment of information depends on finding adequate to the situation proportionate "solution multipliers" needed for comparison; the final condition for the objective evaluation is to identify the evaluation criteria derived from objective (procedural; emanating from a particular case and scientific) reasons that form the indicators, relative to the specified criterion, and are the result of the objectivity of the evaluation of the reliability of the information.
142-150 567
Abstract
The article gives criminalistic characteristic of an individual violator of privacy. It is noted that most of the criminals in this area can be attributed to situational persons, public danger of personality of which is slightly expressed in their behaviour, but it is also evident in appropriate situations. Intent to commit crimes is often formed when a hostile personal relationship between the occurrence of previously close people and is aimed at causing moral suffering to the victim by disseminating slanderous information, possession of which became possible in the previous period of trust relationships. Selfish intent aims at obtaining material reward for providing information to stakeholders of privacy of the victim, or to receive "backhanders" from the victim for refusing to commit acts aimed at the dissemination of confidential information. The important quality of violators is the lack of a criminal record and sustainable relationships with criminals that prejudice the position of the culprit, calling for cooperation with law enforcement agencies, assistance in investigation and full confession as the circumstances taken into account in sentencing.
151-157 375
Abstract
The formation of anti-drug policies of the State (hereinafter referred to as the ADP) is largely influenced by the phenomenon of "moral panic" of the early 1990s that led to the existing format of current ADP with a strong law enforcement. However, the contemporary drug situation has undergone considerable changes, whereas the fixed measures of the State and public interaction with representatives of the drug culture remained the same. This situation leads to increased latency of drug use, the nature of the inertial formation of the ADP and the homogenization of the results expected from the implementation of anti-drug programmes at various levels. To exit from the current situation, it is necessary to analyze in detail the current state of drug culture and draw attention to the characteristics of its subjects. On the basis of the information received it is important that output algorithm from the inside of public life be built as part of a deliberate program to reintegrate them into society. A significant contribution in this direction can make a person overcome their own drug addiction, an experience which you should pay close attention to and create proper conditions for their self-realization as valued professionals in the formation and implementation of ADP.

ENFORCEMENT OF PENALTIES

158-165 2176
Abstract
The article is devoted to consideration of issues of legislative regulation and the practice of parole release from imprisonment. Based on the study of statistics and the practice of reducing both the total number of applications for the granting of parole and the percentage of decisions rendered in favor of the convicts. According to the authors, these trends are due not only and not so much to stricter legislation on parole, but more on the change in the "qualitative" composition of convicts. The study allows the authors to distinguish three main groups of problems involving parole from sentences. The first group includes problems between collisions of various branches of the Russian legislation arising from attempts to simultaneously address problems of parole immediately in all legal fields. The second group of problems connected with the use of the legal institute inquestion to convicts who during the consideration and determination of the case have been detained for a long time. And, finally, the third group of problems stems from the need to increase the objectivity of decision-making on the provision or denial of parole. The article proposes changes to improve the effectiveness of the legal institution of parole.

INTERNATIONAL LAW

166-179 457
Abstract
The author examines modern European civilistic idea about conditions of acquisitive prescription, comparing the scientific provisions of the Model Rules of European private law (DCFR) with prototype usucapion offered by domestic reformers in the draft changes into the Civil Code of the Russian Federation. For the unification and harmonization of the understanding of uzukapii in civil law countries of Europe the next complex legal structure is suggested: 1) term of acquisitive prescription is not dependent on the good faith of the prescriptive owner, because the substance of the relationship make it impossible to become confused about title acquisition, since the need for ongoing and public ownership of real estate or registered movable things must be realized; 2) under mutual awareness of the owner and the possessor of the identity of each other usucaptor should possess a thing within the limitation period, which starts from the day when the victim knew or should have known of the violation and the defendant, and the dispute shall be resolved in videotape production; 3) in the absence of mutual awareness usucaptor must possess a thing for objective limitation period, which is calculated from the date of taking possession of the thing and lasts for 10-50 years, depending on the type of things; besides this title is registered in a special Court production, except when determining criminal acquisition or retention of property. Compared to the legal provisions in national laws of European countries, which generally cover only reasons to break and the suspension of usucapion, the Model Regulations of European private law in dynamics of the continuous term it is possible to determine the five states: break (recognition of the owner of the title of the owner or the loss of ownership); suspension (incapacity of the owner, an objective obstacle to vindication, the beginning of judicial or other proceedings); extension (extension of period after falling away obstacles); recovery (satisfaction vindiatory claims) and deposition (the emergence of obstacles prior to commencement of usucapion).


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