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Actual Problems of Russian Law

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No 4 (2018)

PAGES OF HISTORY

11-20 466
Abstract
The article focuses on nafaka, i.e. a financial obligation of men in Muslim Family Law of the VIII-X centuries, and its formation in the Arab Caliphate. The article discloses the legal nature of the institution that protects the rights of women in Muslim Family Law, scrutinizes legal safeguards for the woman to be vested with this right and compares it with the mahr - a premarital gift given by a man to a woman before marriage. Nafaka was divided into several types, and one of the main and key ones was nafaka aimed at maintaining the wife and a certain group of people. Also, the article illustrates different types of nafaka and their legal nature, studies approaches of various madhhabs (theological-legal schools) with regard to a range of people entitled to nafaka. In addition, the article shows the procedure for nafak assignment and the legal mechanism for the nafak forfeiture if the payer fails to pay.

THEORY OF LAW

21-30 642
Abstract
The article considers the common features of good faith as a multifaceted notion of law in the Russian Federation and substantiates the necessity of their generalization at the level of legal categorization for the purposes of enhancement and development of the legal system structural elements that include the concept of "good faith" as an evaluative criterion. For the sake of the research objectives, good faith is regarded as a moral concept in the context of interrelation between morality and law. Special attention is paid to the study of good faith as an evaluative concept that needs to be considered from objective and subjective sides as a qualitative concept that cannot be subjected to definition. Also, good faith is scrutinized as one of the foundations of law in the RF, a legal principle, legal axiom, universal concept and the basic idea of Russian Law. Summing up the results of the analysis of theoretical and empirical grounds of the research, the author proposes an approach according to which good faith is considered to be a legal category.
31-40 708
Abstract
Invalidation (cancellation, termination, loss of validity, inconsistency with the higher legal act, inconsistency with the Constitution of the Russian Federation, annulment) of a legal act, including a regulatory legal act, is one of the most significant measures to restore law and order in the country, to protect the rights and freedoms of citizens, to ensure compliance of authorities' activities with the laws. The article is devoted to the analysis of the legal nature of measures employed to invalidate legal and normative legal acts in the context of their potential use as measures of responsibility.

STATE POWER AND LOCAL SELF-GOVERNMENT

41-47 487
Abstract
The article analyzes the issues of responsibility of deputies participating in representative bodies of municipal entities whose fault caused the dissolution of representative bodies. The author notes the difficulties that may arise with the implementation of such responsibility. However, in the author's opinion, it is efficient to employ such measures and in the future we can raise the issue of extension of this mechanism. The author raises the problem of possibility of legislative deprivation of deputies, in respect of whom the fact of omission to act is established, of the right to run for the next election.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

48-53 425
Abstract
The article is devoted to scrutinizing the concept of responsibility as the means of protecting the right to remuneration for the work made for hire. The article analyzes the legal basis of administrative responsibility for copyright offenses and infringements of the right to remuneration as one of the categories of copyright offense. Based on the results of the research, the author comes to the conclusion that infringement of the right to remuneration for the work made for hire should be separated and should form an independent legislative rule regulating administrative responsibility. In addition, the Federal Labor Inspectorate should be authorized and assigned powers to consider copyright offenses. It is also advisable to vest the Inspectorate with the power to secure respect for the right to remuneration as one of the directions of control and supervision activities.

FINANCIAL LAW

54-63 479
Abstract
The article is devoted to the analysis of legal regulation tendencies in the sphere of fight against tax abuse. Changes in the Russian tax legislation in recent years have been largely caused by integrating the experience of international organizations, particularly the Organization for Economic Cooperation and Development, and by implementing the BEPS Action Plan. The article considers and analyzes amendments to the Tax Code of the Russian Federation that enshrine and provide for legal categorization of cases involving unjustified tax benefits received by the tax-payer and makes a brief analysis of the idea of developing a comprehensive approach to the fight against abusive tax practices.

CIVIL AND FAMILY LAW

64-70 992
Abstract
The paper considers topical problems of protection of civil rights and duties when a protective function of civil law in contractual and non-contractual relations is being implemented. The author analyzes the grounds for exemption from contractual liability. The article proposes to distinguish between categories of exemption from and exclusion of liability. Force Majeure is considered to be the main defense to contractual responsibility. The article describes the distinctive features of force majeure, namely: its extreme and unavoidable nature. Defenses to contractual responsibility, inter alia, include: fault of the respondent (intent or recklessness), actions of third parties, authority vested with the wrongdoer (for example, a person does not reimburse the harm caused as the result of necessary self-defense). The author argues that the creditor is not deprived of the opportunity to withdraw from the contract, if, as a consequence of delay arising in connection with force majeure, he is not any more interested in performance. However, the debtor is not liable to the creditor for losses caused by delay in performance of obligations due to force majeure. Peculiarities of exemption from liability are shown on the example of transport and contracting arrangements.
71-76 732
Abstract
The article considers the problematic aspects of interpreting the definition of "family privacy." The article makes analysis of provisions of current Russian legislation and law enforcement practice concerning implementation of the rights of citizens to privacy, personal and family privacy. It is stated that in the domestic legislation a legal definition of family privacy is missing, and we have only the most general guidance with regard to determining the place of family privacy in the system of protected benefits. The author delineates the concepts of "privacy", "family privacy" and "secrecy of adoption." The author gives reasoned arguments proving that the constitutional provisions concerning the right of citizens to family privacy are currently of a declarative character due to the uncertainty of legislation on issues of foundations, ways and limits of legal protection of family privacy. The author scrutinizes relations between spouses associated with the regime of their property, the details of which can amount to family privacy as an example of the existence of certain gaps in the legal regulation of relations in question. The author draws a conclusion that it is necessary to improve effective family law in the examined area.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

77-94 720
Abstract
The article is devoted to the comparative analysis of pre-trial procedure of challenging acts and actions of administrative bodies in Russia and France. The purpose of this analysis is to determine peculiarities of this institution in both countries and to elaborate recommendations aimed at improving the Russian legal reality in the area in question with dew account of experience of France. Despite the fact that in France there are more than 150 compulsory procedures of pre-trial challenge of administrative acts, the French law-maker does not provide for the mandatory pre-trial challenge for any event. The effectiveness of voluntary pre-trial challenge is demonstrated by the example of administrative law mechanisms that are able to provide comprehensive and complete consideration of individual complaints of individuals brought to the administrative court. Such efficiency is largely predetermined by the requirements for the complaint (its subject matter and object), conditions of implementation of the right to a pre-trial challenge (deadlines for filing a complaint, the right to claim within the prescribed period), and the rules of joining pre-trial and trial stages of the complaint. Moreover, the issue of interim measures employed to suspend enforcement of an administrative act being challenged is still very important.

BUSINESS AND CORPORATE LAW

95-99 941
Abstract
The article identifies and analyzes peculiarities of the legal regulation of bankruptcy of construction companies. In particular, attention is drawn to the equal scope of protection of interests of participants of construction, regardless of the type of the contract under which the developer has attracted funds, peculiarities of interim measures of protection in cases of bankruptcy of developers, a special rule for meeting the requirements of creditors participating in the construction as compared with other creditors in bankruptcy, as well as a special mechanism of repaying claims of participants of shared construction in case the developer has not completed construction of the facility. The author defines the shortcomings of the legislative regulation of the procedure of replacing the developer and conveyancing his rights and obligations to a new developer, i.e. a buyer, associated with obtaining new construction permits, lack of the rule concerning the structure of corresponding and, accordingly, transferable responsibilities of the developer, as well as the norms defining the legal nature and the unified name of the contract with regard to conveyancing of incomplete construction, the land parcel and the obligations of the developer, its essential and other terms. The article presents possible solutions to the problems mentioned above.

LEGAL PROTECTION OF INTELLECTUAL PROPERTY

100-111 664
Abstract
The article, on the basis of the theory of imperatives and the legal relation doctrine, attempts to show an exclusive right not per se, but as the part of an absolute regulatory relationship, where the passive duty of everyone to refrain from using the protected object represents a means of securing that right. With due regard to the commonly accepted regulatory principle that "everything which is not forbidden is allowed," the author argues that the main function to enforce the interests of the copyright-holder is imposed on the passive duty. For this purpose, the interests of the copyright-holder mean prevention of any other person from using the protected piece of intellectual property. Such an approach allows to overcome shortcomings of the negative nature of an exclusive right that was considered by many scholars as the right to prohibit. According to the author, the exclusive right in its standard uninfringed state does not possess such a power. This right implies only the duty of omission to act enshrined by the law by means of general prohibition to use the object of intellectual property and imposed on all other persons except the copyright holder.

LABOR RELATIONS AND SOCIAL SECURITY

112-120 789
Abstract
The article analyzes actual problems of the legal regulation of the activities of hostels in the Russian Federation that are generated by debates with regard to the prospects of their further functioning in the science of civil law, administrative law, constitutional law and labor law and enforcement practices. There are two dramatically opposite approaches to resolving these problems: 1) legalization of the legal status of hostels in apartment buildings, or 2) a total ban on their activities in apartment buildings. The prohibition of functioning of hostels in apartment buildings will lead to a number of negative consequences, namely: potential "criminalization" of the activities of hostels; deterioration of the economic situation in a number of constituent entities of the Russian Federation; undermining of the basis of tourism and hotel activities; violation of employees ' rights. Hostels are popular among the population. The authors suggest that a certain procedure of hostels' functioning in apartment buildings be established and limitations to their functioning be introduced. Also, the article examines the positive experience of regulating accommodation facilities in the constituent entities of the Russian Federation.

CRIMINAL PROCEDURE

121-129 791
Abstract
The article discusses the issues concerned with the creation of a new model of summary proceedings that will not be unduly burdensome, will be consistent with the needs of law enforcement and allow to secure protection of the rights and lawful interests of persons involved in criminal proceedings to the full extent. The author analyzes the draft law that introduces the concept of a criminal wrong-doing. The article supports the idea that the prerogative to terminate criminal proceedings against a perpetrator who has committed a criminal wrong-doing belongs exclusively to the court. The court should resolve the matter during the court hearings with the participation of the suspect (accused), counsel for the defense, victim, his representative, prosecutor. Dealing with the file in a case with regard to the termination of criminal prosecution and application of measures of criminal character the court during the court hearings decides the issues of fact concerning the crime committed and only then it can resort to the measures having effect within the scope of criminal law. The author comes to the conclusion that the provisions of the draft law provide a significant reserve for optimization of pre-trial proceedings. The author analyses the recorded form of proceedings in criminal wrongdoing cases in the legislation of Kazakhstan, as well as the model of writ proceedings applied in criminal procedure of Kazakhstan. It is concluded that the imposition of a sentence without court hearing in the absence of the defendant and other participants of the trial does not meet the requirements of contemporary justice. The author comes to the conclusion that it is highly promising to establish a shortened period of pre-trial proceedings (10 days) for criminal cases against persons who have committed a criminal wrong-doing or any other crime of minor or medium gravity, a criminal prosecution for which can be dismissed with the application of measures of criminal nature. It is also possible, that requirements concerning providing evidence in a number of criminal cases will be reduced.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

130-139 737
Abstract
The article deals with the issues of professional training and special competence of the forensic expert carrying out linguistic studies of extremist and terrorist materials, delineating analytical scientific activities in the field of philology and practical forensic work based on the methodology of forensic science (forensic theory). The realities of legal proceedings show that the conclusion of a linguistic expert is assessed today fairly meticulously both from the point of view of its content and from the point of view of the expert's competence, the correspondence of the field, level and scope of his education to qualifications and professional requirements for a forensic expert. In modern forensic speech studies, the most dynamically developing field of applied research is forensic linguistic examination, which is a type of forensic speech examination. The need for law enforcement in the use of special knowledge in linguistics is due to numerous information and documents disputes, conflicts involving texts, documents and other products of speech activity that arise in the process of communication in all spheres of social relations. However, the problems of correlation between specializations of philologists and speech experts, the delineation of their competences in the scientific study of the problems of employing the regularities established in the philological science, and the variety of linguistic methods used in forensic expert activities remain undeveloped to this day.
140-149 761
Abstract
The article reveals the problem of uniformity of understanding basic concepts of forensic art examination. The concept of "activity" in the art, psychological and legal context is explored. It is noted that the uniformity of understanding of this term is determined by the research of L. S. Vygotsky, A. R. Luriya, S. L. Rubinstein, A. A. Leontiev and others. Following these, the concept of creativity, which is relevant in the expert activity, is proposed. In order to determine the features of artistic creativity, the author analyzes the performances of the representative of contemporary Russian (boundary) art - Pavel Pavlensky. On the philosophical, psychological, art criticism, and legal grounds the author outlines some features that distinguish various types of activities relevant in forensic art examination. It is proved that there is an objective level of understanding of creativity, which is revealed through the comparison of various activities. Proceeding from the general scheme of behavior of subjects (mechanism of action): motive, motivation, action, result of activity, evaluation, it is proved that, in spite of the subjective level of understanding of creativity, it is possible to establish the features of creativity, games, offenses, and crimes. It is asserted that this is relevant in establishing the fact in proof; choosing the type of forensic art examination; appropriate definition of the subject of forensic examination.
150-158 670
Abstract
This article discusses the specifics of the formation of a new course of the Russian criminal policy - the policy of combating illegal migration. Being an integral part of the state policy, it defines in the criminal law and migration legislation socially dangerous violations in the sphere of illegal migration, limits of punishment of the relevant acts, as well as the result of such activities, which is prerequisite for improvement of the legislation and practice in the area of migration. The author defines the main trends in the criminal policy of combating illegal migration. The revealed features of the process of forming a criminal policy to counteract illegal migration have also made it possible to identify the main stages of its formation and development.

INTERNATIONAL LAW

159-169 656
Abstract
The article considers the concept and determines the place of the principles of legal regulation of crossborder copyright in the legal regulation of special legal norms. A general classification of the principles of legal regulation of cross-border copyright is proposed, which includes three separate groups: cornerstone principles, special material legal, and special conflict legal principles. A group of cornerstone principles of copyright and the guiding rules operating in all copyright protection systems is considered in detail. These systems include international, cross-border and national systems, and those forming the specifics of copyright as an object of protection. Special material legal and conflict legal principles operate precisely in the system of legal regulation of cross-border copyright. The author refers the principle of exclusive rights in copyrighted works, the principle of urgent protection, the principle of the implementation of protection in favor of the author and his successors to the cornerstone principles of regulation in copyright law. The cornerstone principles predominantly originated in the national copyright law of different states, which initially extended only to the citizens of these states, were subsequently reproduced in basic international agreements and extended to international legal protection, and, accordingly, to regulation of cross-border copyrights.

COMPARATIVE LAW

170-177 447
Abstract
The article provides the results of the analysis of separate spheres of criminal activities carried out by transnational organized criminal groups conducted through the materials of the Kyrgyz Republic, the Russian Federation and the Republic of Kazakhstan at the present stage. The study formulates and outlines the current trends and specific circumstances affecting the commission of the most dangerous crimes such as: international terrorism, illegal international circulation of arms, etc. The article examines the relationship between the emergences of modern terrorism outside the national borders of the CIS countries. The tendencies of expansion of terrorism and illegal circulation of weapons with the activities of organized criminal groups in the CIS countries are outlined. The article reflects a specific set of factors that influenced the merging of terrorism with transnational and internal organized crime in the CIS countries in general and in Kyrgyzstan in particular. Special emphasis is placed upon the features of modern political terrorism being interconnected with political extremism, as well as upon aggravating ethno-clan and religious movements that have become most widespread in the Central Asian region, including the Kyrgyz Republic. The main reasons for the spread of illicit arms trafficking in some CIS where the political component played a key role are highlighted.
178-184 487
Abstract
The article attempts to compare the decision-making process of institutional international commercial arbitration in Russia and Japan. In the consistent and comprehensive manner, the author compares the norms of the State law, the internal provisions of institutional arbitration organizations represented in the form of the International Commercial Arbitration Court at the CCI and the Japanese Commercial Arbitration Association, as well as unified norms of international law and bilateral agreements. The issues of the arbitrator's special opinion, distribution of arbitration costs of the parties involved in the case, out-of-court settlement, identification and correction of errors, interpretation of decisions are considered. Attention is given to such an important issue as recognition and enforcement of a foreign arbitral award. At the end of the article, conclusions are drawn about the advantages and disadvantages of the arbitration organizations under consideration.

LAW ENFORCEMENT

185-194 4024
Abstract
This article is devoted to the study of public prosecutor's supervision over the procedural activity of the bodies of inquiry. The article analyzes the concept of public prosecutor's supervision, its subject, and the elements that make up the subject, the limits of public prosecutor's supervision over the procedural activity of the bodies of inquiry. Based on the study, the author provides her definition of public prosecutor's supervision of the procedural activity of the inquiry bodies as a type of activity of the prosecutor that is predetermined by the social purpose of the prosecutor's office. When examining reports on crimes and investigation of crimes, the prosecutor aims at identifying, eliminating and preventing violations of laws committed by inquiry bodies, bringing the perpetrators to the responsibility established by law, which he carries out using the powers established by law and legal means for their implementation. Based on the comparison of doctrinal definitions, it is determined that the subject of supervision can be understood as the legality of the procedural activity of the inquiry bodies that meet the purpose of criminal proceedings when examining reports of crimes and investigating criminal cases. With a view to an accurate and uniform approach to determining the subject of public prosecutor's supervision, the author proposes to edit paragraph 2 of Art. 1 and the title of Chapter 3 of the Law "On Office of Public Prosecutor" as follows: "Public Prosecutor's Supervision of the Investigative and Procedural Activities of the Bodies of Internal Affairs and Justice". The article also mentions the expansion of the procedural independence of the head of the inquiry body (unit) due to the delegation of a number of the prosecutor's powers in pre-trial proceedings. These powers are: to permit the challenges made to the investigator, as well as his own withdrawal; to suspend the investigator from further investigation proceedings if he has failed to comply with the requirements of the Criminal Procedural Code of the Russian Federation; to issue orders on combining criminal cases; to exclude the right to give written instructions on the direction of investigation and the procedure from the powers of the prosecutor. At the same time, the author proposes to amend the Criminal Procedural Code of the Russian Federation, expanding, inter alia, the procedural independence of the prosecutor, authorizing him to issue a reasoned decision to initiate a criminal case and then transfer the materials of the criminal case to the investigating body or inquiry body for further investigation and rendering of the final law-based decision.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

195-200 642
Abstract
The article analyzes the main points of view and approaches to the mechanism of legal regulation of the order of seizure of land for state or municipal needs, in terms of compensation for losses to owners of the seized land. The author concludes that there is no optimal and balanced criterion of a "fair compensation" for losses due to seizure of land for state needs within the framework of land legal relations, which has direct practical application. With this in mind, it is proposed to supplement the provisions of the current legislation, regarding the evaluation of the legal category of "fair compensation" for losses resulting from the withdrawal of land for state or municipal needs.

CONFERENCES

201-216 507
Abstract
The article is devoted to the 9th session of the international forum "Crime and Criminal Law in the Era of Globalization", which was held on 9-12 December 2017 in India. The session was held on the theme "Prospects of Refugees and Global Migration" and brought together more than 60 delegates from 13 countries (Argentina, Bulgaria, Bosnia and Herzegovina, Brazil, India, Spain, Italy, Kenya, Macedonia, Poland, Russia, Serbia, Philippines). The forum participants discussed global and local patterns of migration, human trafficking, crime and criminal behavior among migrants. The article contains the main provisions of the reports of the participants of all the delegations of the forum. The reports of the Russian delegates are the most detailed. Yu.V. Golik suggested using the term "criminological futurology" to characterize the prognostic course of the crime science, revealing the main futurological problems. V.P. Konyakhin spoke about the international experience of criminalization of illegal migration and the problems of implementing international norms in the Criminal Code of the Russian Federation. A.I. Korobeev and Ya.O. Kuchina presented a report on the problems of determining the jurisdiction of criminal law with respect to "cloud data" as well as the access of law enforcement agencies to such data. I.Ya. Kozachenko spoke about the content of national and international counter-terrorism measures and the models used in the design of these measures. N.A. Lopashenko presented the developed scale of four degrees of criminality risk of migration processes. D.N. Sergeev made a report on the study of the spread of radical views among the convicted in the Russian correctional institutions. A.I. Chuchaev and Yu.V. Gracheva presented a report on the concept and public danger of illegal migration. A number of delegations (Argentina, Spain, Brazil) focused on the problems of protecting the rights of migrants in criminal proceedings, creating social institutions for migrants. The reports of the representatives of Bosnia and Herzegovina, Italy, Serbia, and Macedonia dealt mainly with the criminal legal problems of illegal migration. Speeches of the Indian delegation touched upon the economic, social, environmental and political prerequisites for outgoing migration.
217-222 402
Abstract
The article presents the main aspects of speeches within the framework of the scientific expert site "Legal Problems of Housing Renovation" held on 28 November 2017 at the Kutafin Moscow State Law University (MSAL). The summaries of the participants' reports are also presented. The scientific expert site was based on the main results of the reform of the housing law of the Russian Federation in the light of a new course for the development of the housing stock of Russia based on renovation measures, current tendencies in legislation, lawmaking, civil science and law enforcement practice. The court practice, which contains new approaches to the interpretation of the norms of modern Russian housing law, was also taken into account. During the work of the scientific expert site, the participants and moderators presented and analyzed the main trends of modern legal practice and science in the field of theoretical and practical problems of renovation in the light of the reform of the housing law of the Russian Federation.


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