No 5 (2018)
PAGES OF HISTORY
11-18 391
Abstract
The article examines the process of improving the mechanism of the fight against terror in the Russian Empire. Particular attention is paid to the analysis of normative legal acts regulating the work of the bodies of political investigation in Russia and abroad. The process of emergence of a new body of the Police Department - Secret Police Departmetn for Goreign Affairs [Zagranichnaya okhranka] - has been subjected to thorough analysis. A great deal of attention has been paid to such operative-search activities as external surveillance: it was at the end of the nineteenth century that the Secret Police Department committed themselves to strengthening and centralizing the external surveillance system with the aim of improving the quality of its functioning and eliminating individual elements of disunity. It was noted that the anti-terrorist potential of the Russian bodies of political investigation at the turn of the 19th and 20th centuries was not implemented to full extent. When organizing the fight against terror, in addition to the successes that had been achieved, attention has been drawn to the facts that were of great concern to the Government: local administrative governing bodies reasonably paid much attention to the quality of the work of law enforcement agencies at all levels of subordination. Then-prevailing revolutionary situation demanded that the Russian Government continued the course of reforms and searched for new organizational and legal solutions in the field of the fight against terror, some of which were finally found at the end of the 19th century.
THEORY OF LAW
19-26 509
Abstract
A comprehensive study of teleological aspects of legal regulation presupposes cognition and better understanding of the goal-setting carried out by various subjects of law at different levels of contractual regulation of public relations. Teleological aspects of contractual-regulatory activity are manifested in determining the ultimate and intermediate goals of legal regulation, goal-setting and harmonizing of the will of the subjects of contractual regulation as well as in the teleological interpretation of contractual norms. The basis for the establishment of the goal of legal regulation is formed by social prerequisites for the emergence of law as a regulator of social relations designed to weaken (resolve) conflict tension between the participants of social interactions intending to gain limited benefits. Consequently, legal regulation is aimed at preventing or resolving social conflicts, and streamlining public relations, which becomes an intermediate goal of legal regulation. It is reasonable that the existence of two alternative strategies of social behavior (rivalry and cooperation) requires the application of various principles, methods and means of legal regulation. To this end, the existence of contractual regulation is preconditioned by the existence of specific social relations in social practice, the regulation of which presupposes a coordinated, joint will of the participants. It is concluded that the study of teleological aspects of contractual legal regulation facilitates determination of systemic characteristics of legal regulation, its "mechanical" side and the effectiveness of legal regulation. As far as the methodology is concerned, the study results in the understanding of the integrity of the object of the state-legal reality.
PHILOSOPHY AND ETHICS OF LAW
27-35 424
Abstract
The article is devoted to the problem of law as an ethical-anthropological concept. The semantic origin of the concept is examined in the philosophical doctrine of E. Husserl in the context of the "field of values of pure consciousness," the evolution of this concept in the semantic field (the semantk nucleus and the semantic periphery) of humanitarian phenomena, a specific instance of which, i.e. the semantic field of law, is also subjected to the examination. It is argued that each concept has its own semantic field consisting of one semantic center (monocentric) or several centers (polycentric), and the author proposes such a model of law that forms a dual ethical-anthropological concept that includes two semantic centers: "the Man" and "ethics." The author dwells on a multidimensional character of human nature (biopsychic, social and cultural), but the meaning of the construct "the Man" within the framework of ethics and law is determined, to a greater extent, by social and cultural prerequisites. The meaning of the construct "ethics" that constitutes the second center of the concept of law is analyzed by the author within the framework of Russian religious philosophy of law. The topical problems of interaction of morals and law in the human dimension are considered: violence and non-violence, communicative orientation, normative regulation and motivation of moral behavior. It is concluded that the search for integral concepts synthesizing the extremes of ethical oppositions and the development of ethical norms as the fundamental semantic foundations of law in society can be combined in the notion of law as an ethical-anthropological concept.
36-43 537
Abstract
The article considers one of the fundamental questions of professional ethics of subjects of the forensic-expert activity in the Russian Federation, namely: directions of improvement for the basic ethical foundations (principles) of expert activity. In the course of the analysis of the legislation regulating forensic activity, principles are identified that in the author's opinion are of moral and ethical nature, namely: the principles of objectivity and independence. This article was prepared within the framework of the International Scientific and Practical Conference "The Moral Dimension and the Human Potential of Law" held on 21-22, April 26, 2017 at the Kutafin Moscow State Law University (MSAL) in connection with the 15th anniversary of the Philosophical and Law Club "The Moral Dimension of Law". Moreover, it is additionally proposed to dwell on such ethical foundations and principles as confidentiality, impartiality, integrity, organization, competence, integrity, honesty that are not cons olidated in regulatory legal acts, but are no less significant for the subjects of forensic expert activity. The conclusion concerning the importance of such principles is made on the basis of the study of already existing codes of ethics, in particular, the Code of Judicial Ethics, the Code of Professional Ethics of Advocates, and on the basis of the provisions of forensic expertology and the needs of expert practice. As a form of consolidation of these principles, a draft code of professional expert ethics is proposed. The idea of creating an ethical code is supported by many researchers, but the mechanism for developing its draft is practically absent, since this process is very laborious, requiring special care and consistency.
STATE POWER AND LOCAL SELF-GOVERNMENT
44-56 488
Abstract
The main directions of implementation of constitutionalization of law and order in the context of identifying, minimizing and eliminating constitutional risks and potential threats are considered. Based on the analysis of normative and doctrinal sources and jurisprudence, the author highlights the primary importance and the role of the Constitution of the Russian Federation and the realization of its provisions in the structure of the constitutional and legal mechanism applied to secure the rule of law. The concept is defined and the main constitutional risks, their types and categories are determined; the basic directions of realization of constitutionalization of law and order are developed. The problems of ensuring the supremacy and direct action of the Russian Constitution during constitutional reforms are highlighted. Attention is drawn to the need for thoughtful and consistent implementation, while such transformations are reasonably considered in the legal doctrine as a constitutional risk. It is summarized that the constitutionalization of the law and order should be carried out in the context of timely detection and effective elimination (minimization) of constitutional risks. Minimizing constitutional risks and neutralizing potential threats predetermine the real opportunities for a qualitative embodiment of the idea of the constitutionalization of the rule of law in general.
57-64 1006
Abstract
The article focuses on the specifics of the content and guarantees of the principle of accessibility of constitutional justice, which is one of the main principles of the activities of the Constitutional Court of the Russian Federation and constitutional (statutory) courts of constituent entities of the Federation. In general terms, this principle presupposes the creation of organizational, institutional and regulatory legal conditions that provide a real opportunity not only to refer authorized entities to the body of constitutional justice, but also to consider and resolve the case in order to effectively restore violated rights. The following main guarantees of the principle of accessibility of constitutional justice are analyzed: establishment of clear and transparent rules for the jurisdiction of relevant cases; absence of unnecessary organizational and fiscal encumbrances related to appealing to the bodies of constitutional justice; ensuring the possibility to use such a method of considering the case that is convenient for the applicant, including those that are based of modern information technologies; free access to information concerning the activities of the bodies of constitutional justice, etc. The main problems concerning a legislative framework of these guarantees are shown.
65-80 637
Abstract
The article analyzes the existing legal regulation of parliamentary inquiries of the chambers of the Federal Assembly of the Russian Federation based on the goals of parliamentary review reflected in federal legislation. The author proposes a typology of parliamentary inquiries of the State Duma and the Federation Council of the Federal Assembly of the Russian Federation for the period from 2000 to 2017, reveals the basic types of parliamentary inquiries and identifies their distinctive features. According to the results of the research, it was proposed to introduce the institute of interpellation into the federal legal regulation.
81-88 692
Abstract
The relevance of the article is connected with the formation and development of the concept of "broad" interpretation of the right to private life, which finds expression both in foreign and domestic law, the influence of this concept on peculiarities of modern legal regulation of private life. Analyzing the processes of formation and development of the right to privacy in Russia and foreign countries, based on the decisions of the European Court of Human Rights, the Constitutional Court of the Russian Federation, the author comes to the conclusion that there are processes that tend to constitutionalization of the domestic right to privacy (as a negative right), the evolution of the said right into a comprehensive right (a system of rights and powers) which includes both negative and positive elements. That ultimately leads to a significant expansion of the impact on the area of the right to privacy. Meanwhile, a special role of the Constitutional Court of the Russian Federation in these processes is highlighted. In this case it plays the role of a generator of new, positive beginnings in the field of legal regulation of private life, expanding the scope of the impact of the right to privacy.
FINANCIAL LAW
89-94 401
Abstract
The article is devoted to the study of peculiarities of the legal regulation of public audit carried out by the Audit Chamber of the Russian Federation and auditing bodies of constituent entities of the Russian Federation and municipalities. Public audit forms the bacis for state and municipal financial control. The article reflects key approaches to improving the effectiveness of the public administration system, main forms of public audit and their specific objectives in the context of the development of the state, economy, society and the individual. Differences in the types (forms) of public audit depend on at what entity the audit is aimed. Public bodies (authorities, budget organizations, etc.) and public-private entities (public-law companies) can be subjects to state audit. The article discusses contradictions of certain normative legal acts of the RF Budget Code, which indicates the absence of a unified system of financial and legal regulation of this area. The article provides for the classification of types of public audit that makes it possible to distinguish between separate types (forms) of public audit and to see their particular implementation and tasks.
CIVIL AND FAMILY LAW
95-104 4441
Abstract
A subjective right acting as a measure of possible behavior of an authorized entity is filled in objective reality with concrete content as a known part of a system of a different order - legal relations. In this aspect, any subjective civil regulatory right can have two qualitative states: the first exists from the moment of the emergence of the right, the second - from the moment of violation or challenging of the right. Accordingly, the subjective civil regulatory right includes a mandatory (regulatory) and a facultative (protective) powers. At the same time, a subjective civil protective right designed to protect another right that has already been violated initially includes only protective powers. The subjective civil right corresponds to the subjective civil obligation. Both these phenomena, by virtue of the dialectical law of unity and struggle of opposites, constitute an inseparable unity, forming, at the same time, the content of a legal relation. To this end, the essence of the civil-law obligation is determined on the basis of the essence of subjective civil law right which is opposed by the obligation in question.
105-111 1097
Abstract
The article deals with topical issues of protection of civil rights and responsibilities in the implementation of the protective function of civil law in contractual and extra-contractual relations. The author analyzes the grounds for exemption from contractual liability. The article proposes to distinguish the categories of exemption and exclusion from liability. The main reason for exemption from liability is an irresistible force (force majeure circumstances). The article highlights the signs of irresistible force - extreme and unavoidance. Circumstances that exempt from liability also include: the fault of the victim (intent or gross negligence), actions of third parties, an authority assigned to the offender (for example, a person does not reimburse harm caused in the state of necessary defense). According to the author, the creditor is not deprived of the opportunity to cancel the contract, if, due to the delay caused by the force majeure circumstances, he lost interest in the performance. At the same time, the debtor is not liable to the creditor for losses caused by delay in the fulfillment of obligations due to force majeure circumstances. Peculiarities of exemption from liability are shown on the example of transport and contractual relations.
112-118 589
Abstract
The article focuses on the issue of possible reintroduction of provisions that concern family property into the current civil legislation. It has been established that the term "family property" was previously known to Russian legislation. It is determined that the revival of the institution of family property is most consistent with the legal nature of the new concept for the current legislation, namely: "family estate." The author analyzes the possibility of applying provisions on family property to a family estate as an object of civil rights and a variety of a single real estate complex. With regard to the family estate and as a derivative of the property right, family property is considered both in the objective and subjective sense. As a result of the analysis, the author comes to the conclusion that the right of family property to a family estate can be described as the right of family members to own, use and dispose of the things that make up the family estate as a single unit, as an indivisible commodity without determining shares in the right to the family estate, exclusively in the interests of the family and only as a common unit.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
119-125 550
Abstract
The article analyzes the draft law on making changes into chapter 31 of the Civil Procedural Code of the Russian Federation regarding the procedure of considering cases on limitation of legal capacity of citizens who, due to a mental disorder, can understand the meaning of their actions or control them only with the help of others. In March 2015, the Civil Code of the Russian Federation introduced the possibility of limiting legal capacity of persons suffering from a mental disorder. Before then, under the Russian law such persons could only be recognized as legally incapable. Despite the already existing possibility to limit legal capacity of a citizen who, due to a mental disorder, can understand the significance of his actions or control them only with the help of others, the procedure for considering this category of cases has yet to be approved. The article analyzes the provisions of the draft law and suggests the author's opinion on such issues as the circle of subjects, the type of judicial expertise appointed, and the possibility of clarifying the claims in this category of cases.
BUSINESS AND CORPORATE LAW
126-135 508
Abstract
The article analyzes the specifics of requesting quotation and requesting proposal as a form of bidding. The author considers the current amendments to the Federal Law No. 223-FZ of July 18, 2011"On Procurement of Goods, Works, Services by Certain Legal Entities" and proves that the basis for the commented changes is the legislation of the Russian Federation on the contract system in the procurement sphere. The author studies the questions about the legitimacy of the refusal of the customers to conclude the contract with the winner of the request for quotation, the request for proposal. The necessity of a legislative solution of the problem of changing the material terms of the transaction concluded following the auction results at the stage of its execution is proved. Special attention is given to the new rules for concluding contracts, concluded on the basis of competitive procurement methods. Critical analysis is conducted on the classification of procurement for competitive and noncompetitive ways of determining the supplier provided for in the Federal Law No. 223-FZ. It is proposed to consider the changes into the Federal Law No. 223-FZ as a result of lobbying the interests of the largest corporate customers.
CRIMINAL LAW
136-142 746
Abstract
In Russian legal studies, there are two approaches to the question: 1) the amnesty is unlimited; 2) the amnesty is valid for a certain period. The purpose of this article is to check which of the two positions corresponds to the features of modern Russian amnesty. The case study on declaring amnesty and the practice of its application in the Russian Federation makes it possible to draw the following conclusions. The duration of amnesty is not the period of its validity. The application of amnesty beyond this period is carried out without any additional restrictions. The possible duration of the break between the declaration of amnesty and its application should not lead to the conclusion that amnesty is indefinite. The amnesty will apply only to acts committed before a certain point (within a certain period). Therefore, the range of cases in which the amnesty should be applied will certainly be limited. The full execution of the amnesty is also the moment when the amnesty expires in time.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
143-154 451
Abstract
A number of articles of the Special Part of the Criminal Code of the Russian Federation contain the terms "potentially dangerous psychoactive substances", "environmentally hazardous substances", "other dangerous chemical and biological substances"; etc., which are often included into special lists conditioning the dangerousness of a given substance. It is well known that when investigating crimes related to these substances (all the above mentioned substances are grouped together by the author as "dangerous substances"), the latter usually require forensic research. So far, in forensics there is no clear understanding of the concept of hazardous substances. Its forensic rationale should be focused on the actual criminalistic realities. The solution to forensic tasks is not the final, but an interim goal in investigating crimes. The paper proposes a version of the author's definition of the concept of hazardous substances, considers their basic typologies and classifications.
INTERNATIONAL LAW
155-166 1638
Abstract
By concluding a treaty, the parties take into account various circumstances existing at a given time. There is no dispute that a fundamental change of circumstances existing at the time of concluding the treaty and constituting an essential basis of the consent of the parties to be bound by the treaty may entail termination or suspension of its operation. Such an approach, adopted by theory and practice, was set forth in the Vienna Convention on the Law of Treaties of 1969. However, it is very rare that the State, referring to a fundamental change of circumstances as the grounds for termination (suspension) of the treaty, does not meet the objections of the other party (parties) to stop or suspend the operation of such a treaty on these grounds. This is explained primarily by the fact that Art. 62 of the said Convention, which contains the rule on the effect of a fundamental change of circumstances on the operation of treaties, does not provide for clear criteria to determine whether the circumstances to which the party to the treaty refers to are indeed "a substantial ground for the consent of the parties". Therefore, it is necessary to develop such criteria in order to avoid disputes related to unreasonable references to a fundamental change of circumstances.
167-175 1092
Abstract
The article makes an attempt to conduct a comparative analysis of the two institutions of international maritime law - the exclusive economic and fishing zones. It is believed that the proclamation of fishing zones by States is contrary to the United Nations Convention on the Law of the Sea of 1982, which provides for the creation of only exclusive economic zones. The author refutes this thesis by referring to the modern practice of States. The article analyzes the concepts of exclusive economic and fishing zones, their historical development, legal nature and distinctive features, gives examples of treaties, national legislation, decisions of national courts, actual behavior of States justifying the existence of fishing zones along with the institutions of the UN Convention on the Law of the Sea of 1982. Based on the comparative legal analysis, the author formulates conclusions and proposals. In particular, it is proposed to recognize the existence of fishing zones in international law as a particular international legal custom.
INTEGRATION LAW
176-184 578
Abstract
Russian-European cooperation in the field of research and use of outer space is built on the basis of long-term and multi-level relationships. The changes in the EU competences brought by the Lisbon Treaty of 2009 have not affected the structure of these relations as a whole. The main practical aspect of the relations between Russia and the structures of the European integration is still the relations between Russia and the European Space Agency. The legal regulation of relations between Russia and the European Union in the field of exploration and use of outer space is being built within a specific international legal framework centered on the agreements between Russia and the European Space Agency. This article is devoted to the consideration of the legal basis for the bilateral relations between Russia and European structures in the field of peaceful exploration and use of outer space, in particular the legal analysis of the relevant provisions of the basic agreements on cooperation between Russia and the European Union and between Russia and the European Space Agency competence of the EU and the development of European space policy in the context of a "frozen" partnership with Russia.
FOREIGN EXPERIENCE
185-192 447
Abstract
Within the framework of the constitutional reform held in Kazakhstan in 2017, there was a redistribution of power between the President, Parliament and Government. However, in the future it is necessary to continue the work to ensure the balance of powers of the highest authorities, and to increase the role of the legislative branch of power. There is a need to improve the norms of the constitutional legislation governing the status and powers of the President (on the requirements for the length of service for the presidential candidate, on the grounds and procedure for early termination of the powers of the President, on consulting the Constitutional Council when introducing the state of emergency and martial law, on securing the mechanism for appeals to the President by other subjects, on shortening the deadline for issuing a final decision of the Constitutional Council and the criteria for urgency consideration of the questions). In order to ensure a real multi-party system and, on this basis, full implementation of the parliamentary control over the activities of the Government, it is necessary to reduce the barrage in the distribution of mandates for the parties participating in the Majilis elections from 7 to 2-3%, to entitle the representative body directly without the participation of the President of the Republic to apply measures of constitutional and legal responsibility to the members of the Government, to improve the procedures for vote of confidence and no confidence to the Government, to exclude the responsibility of chairmen of chambers for the legality of acts adopted by Parliament.
193-201 682
Abstract
The article attempts to reflect the problematic aspects of the current trends in the development of juvenile justice in the Kyrgyz Republic in the context of the adoption of the Children's Code and the Criminal Procedure Code. The authors set the task to conduct a content analysis of the positions of scientists of the CIS countries on issues of differentiation of the criminal process; to reflect the basic principles of juvenile justice in the CIS countries, including Kyrgyzstan; to conduct an analysis of the adopted Children's Code related to juvenile justice issues. In general, the article conducts a comprehensive study of theoretical and applied problems in the differentiation of the criminal procedure for juvenile delinquency in the context of reforming the Criminal Procedure Code in the CIS countries in general and in Kyrgyzstan in particular. The problems connected with the development of the criminal procedural form of the juvenile proceedings are raised. Based on the comparative legal analysis of the development of the institute of juvenile justice in the CIS countries, theoretical positions on the improvement of this institution in Kyrgyzstan are developed. The study reflects the existing shortcomings of the current legislation that hinder the development of juvenile justice in the Kyrgyz Republic, and formulates recommendations for the improvement of the Children's Code in order to achieve the goal set by its developers.
COMPARATIVE LAW
202-208 605
Abstract
This article is prepared in view of the urgency of the issue of improving the functions and control powers of the Accounts Chamber of the Russian Federation. The study of the legal status of the French Court of Auditors by means of comparative legal studies method makes it possible to more fully assess the processes taking place in the field of state control in this country. This experience can be used to update the financial control system in Russia. The article examines the organizational structure and main powers of the Accounting Chambers in the Russian Federation and the French Republic, as well as modern legislation in the field of state financial control. This article may be of interest to students of the courses in financial law, tax law, budget law, and the system of state control (supervision). In addition, the article may be of interest to researchers, and other persons directly involved in the development of procedures and government instruments, through which the regulation of public finances is carried out.
209-213 442
Abstract
The article is devoted to the comparison of legal elements of the taxes in the Republic of Korea and the Russian Federation. The author analyzes four main elements of taxation, which are highlighted in the science of tax law of the Republic of Korea - taxpayers, object of taxation, tax rate and tax base. Based on the study, the author comes to the conclusion that at present there are no generalizing rules in the Republic of Korea that fix the list and definition of elements of taxes - these elements are fixed in laws that establish separate taxes. It seems that this entails a decrease in the level of legal guarantees for observing the rights of Korean taxpayers. In this connection, the author believes that the case study of the Russian Federation in this sphere can be used to improve tax legislation of the Republic of Korea.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
214-220 391
Abstract
The conceptual and categorical framework for legal regulation of the migration (relocation) of the population from affected areas in emergency of natural and man-made nature is considered, i.e. the concept of "temporary resettlement" provided by the Federal Constitutional Law "On the State of Emergency" and the concept of "evacuation measures" stipulated in the law "On Protection of the Population and Territories from Natural and Man-Made Emergencies". Despite the similarity of the legal mechanisms for regulating the processes that define these concepts, the author's conclusion outlines their differences. Among the main differences are the following: decision on carrying out of temporary resettlement and evacuation measures is taken in accordance with the legal norms of various legislative acts of different significance; the level of threat to life and health of people in areas where a state of emergency has been introduced is usually much higher than in the zones of emergency of natural and man-made nature, and for this reason the temporarily evacuated to safe areas stay in the zone of temporary resettlement for a longer period of time. Therefore, there is a need to create conditions more adapted to temporary living. The article also introduces the author's definition of the term "temporary resettlement".
221-238 732
Abstract
The article deals with the features of the conceptual framework of environmental protection and ensuring environmental safety in the use of subsoil in the legislation of the Russian Federation and foreign countries. According to the results of the study, differences in approaches to the definition of key concepts in the specified sphere of social relations in the legislation of Russia and foreign countries are highlighted; the need for proper legislative definition of the content of such concepts as "environmental protection", "ensuring environmental safety", "environmentally hazardous activities" is outlined. It is proved that a clear understanding of the content and limits of the use of these concepts is a necessary condition for the most effective legal regulation of environmental protection and ensuring environmental safety when using subsoil.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)