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Actual Problems of Russian Law

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No 6 (2018)

PAGES OF HISTORY

11-19 624
Abstract
The article considers the key historical and legal aspects of prosecution bodies fight against crime in the state administration of Russia. The author analyzes the main directions of anti-corruption work of the domestic prosecution bodies since the reign of Peter the Great and until 1917. The article consistently outlines the most important stages in the formation and development of the powers of the prosecution bodies aimed at preventing and suppressing corruption in state authorities of pre-revolutionary Russia. The author quotes excerpts from various legal acts and historical documents concerning the implementation of anti-corruption measures taken by Russian state prosecution bodies. The author substantiates an important historical role of the prosecution bodies inextricably linked with their fight against corruption in the state apparatus of the Russian Empire.
20-24 639
Abstract
The article considers the history of the development of analysis of draft laws in the Russian Federation. It has been revealed that the legal expertise appeared before any other type of examination of draft laws. The Legal Department under the Secretariat of the Presidium of the Supreme Council of the RSFSR combined two functions: elaboration of draft laws and their legal expertise. Until 1991, examination of draft laws was not legally regulated. Then, the provision for legal expertise was envisaged in the Statute of the Supreme Soviet of the RSFSR and it defined the expertise of draft laws as one of the functions of the legal department; and the editorial and publishing department was obliged to carry out lexical expertise. The most recent type of expertise includes anti-corruption expertise that has been carried out by the committees of the Federation Council since 2009. The history of the development of draft laws expertise confirms the fact that organization of the legislative process is an indicator of the political and legal situation in the state.

THEORY OF LAW

25-31 1372
Abstract
The current state of affairs in private law as a megasphere of law is undergoing continuous development. The purpose of the article is to consider current trends in the development of private law with regard to the Russian legal system. The study identifies historical prerequisites of the current state of affairs in private law in Russia, demonstrates the significance of the doctrine of dividing law into private and public that is conceptualized in the legal science, and, within its framework, the problem of a modern measure of private law is defined. The article explores the agreement-based legal regulation as a means of defining the law, examines the efficiency of the regulation that contributes to the stabilization of economic relations in Russia. The paper studies the need for state regulation of private-law relations, draws conclusions that such regulation has a positive impact, examines the role of public-law categories in private law in Russia. Discussion in the article is based on the principles of methodological pluralism and complexity, which allows us to examine the system of private law from different sides.
32-39 1149
Abstract
The article considers the main approaches to understanding an "e-state" concept. The relevance of the study is determined by modern trends in the use of information technologies in the processes of interaction between the state and society. It is noted that the terms "e-state" and "e-government" are often used with the same meaning. Based on the experience of scholars, it was established that these terms have different semantic content: the term e-state is referred to a system that includes e-democracy, e-government and e-litigation. The main tasks of the e-state are formulated in accordance with the author's view. Conclusions are drawn on the need to develop the idea of an e-state in the Russian Federation taking into account the current trends in the world practice. It was determined that the bureaucratic process, being an indispensable condition for the work of state authorities, also has a negative impact on the interaction between government bodies, the population and business and their interaction with each other. Due to the use of e-state services, the terms for providing information are reduced and the workload of the authorities increases, which can have a positive effect on the efficiency of the activities of many structures. Accordingly, the e-state in the future can solve the existing problems, as well as ensure the economic productivity of electronic governance, which is especially important in modern conditions.
40-48 1300
Abstract
The article explores different aspects of impact of judicial practice on legislation. In view of the fact that the role of jurisprudence for the improvement of legislation is currently steadily increasing, the author comes to the conclusion that it is quite possible to talk about the formation of the mechanism of impact of judicial practice on legislation. When the appropriate mechanism is formed, the author proposes to determine three consecutive stages, each of which consists of interrelated structural-functional elements. At the initial stage of the mechanism of the impact of judicial practice on legislation, it is proposed to identify a gap in law or the sphere of public relations that are not normatively regulated in the legislation. In the process of forming judicial practice, such imperfections of legislation are overcome, and the legal provisions that in the future can be used in various ways to improve legislation are formulated. The totality of various ways of systematization of legal provisions constitutes the second stage of the mechanism. The final stage of the mechanism of the impact of judicial practice on legislation involves court practice into the legislative process.

FINANCIAL LAW

49-56 16299
Abstract
The article analyzes the main provisions of the RF legislation in the field of regulation of financial markets as well as non-credit financial organizations and their role in the financial markets of the Russian Federation. In 2013, Federal Law No. 86-FZ of 10 February 2002 "On the Central Bank of the Russian Federation (Bank of Russia)" introduced Art. 76.1 that provided for the list of activities carried out by non-credit financial organizations. However, this list is not consistent with the lists set forth in other laws. Thus, a legal conflict is created. As a result of the research, the author comes to the conclusion that up to now in Russian legislation there is no single concept of a non-credit financial organization as well as a list of organizations that, when carrying out their professional activities, fall under this concept.

CIVIL AND FAMILY LAW

57-63 1122
Abstract
Legal practice often encounters the desire of the owner to split his right to a thing to form shares and to alienate them or to split the share in the right to joint property for the same purpose. The possibility of splitting the right to sole property to form joint property is often questioned, since its emergence is associated only with the transfer of an indivisible item into the ownership of two or more persons. Other grounds, including such as the split-up of the right, are denied. In fact, the split-up of the right to sole property by the unilateral expression of the will of its holder is possible if it involves simultaneous transfer of the newly formed share to the third party. Such a disposal arrangement should be seen as the alienation of a thing to the ownership of the collective, to which the former owner is a party. The split-up of the share is also possible. Such an act should be regarded as an extension of the number of participants. To extend the number of participants, the consent of all co-owners is needed.
64-74 493
Abstract
The civil law reform provides for modification of the system of proprietary rights, including the establishment of a number of rights to things belonging to other people, the vivid example of which is the right to build. In the opinion of the the RF Civil Code drafters, the lease for construction purposes is not able to meet the current needs of participants of relations regulated under civil law. Therefore, it is proposed to replace this legal concept. A limited proprietary right - the right to build - is proposed as an alternative to the contractual agreement. The article analyzes the problems that prevent the construction market from development, namely: the inadequacy of the terms of lease agreements to construct a facility, considerable administrative discretion concerning contract prolongation, the ease of termination of tenant rights and their extremely low "collateralability." It is concluded that the existing legal model for establishing the rights to a land plot for construction purposes needs substantial revision. At the same time, the author draws attention to the need to take into accounts the national peculiarities and inadmissibility of blind copying of the foreign legal concept of superficies. The author sees possible solution to the problems existing within the framework of the existing model of relations in the field of construction in the assignment to the tenant such a right to a land plot that meets the requirements of longtermness, durability and "collateralability." Providing the tenant with a sound and comprehensible content, that, in comparison with the existing lease right, will be economically more efficient and stable, is possibe within the framework of the construction lease concept, and within the framework of the right of development. In the first case, it is suggested that the property law nature of the lease be strengthened, in the second case, it is suggested that such a limited proprietary right be created that will take into account peculiarities of the national legal system.
75-81 1180
Abstract
The analysis of the means of individualization of citizens leads the author to the conclusion that the further systematization of the effective Russian legislation is needed. The paper focuses on the history of the development of the domestic doctrine of civil law with regard to the evolution of the views of civil scientists concerning legal essence, meaning and types of means of individualization. The use of social means of individualization of citizens in relations regulated by civil law is in general almost completely regulated; however, the use of biometric personal data requires more detailed regulation. The significant complication of social relations that has occurred in recent years and the emergence of new means for individualizing individuals require the legislator to develop a fundamentally new approach to the legal regulation thereof. The author also highlights the possibilities of using within the civil law framework the achievements of gabitoscopy (the doctrine of the external appearance of the man). It is concluded that the further development of means of individualization of citizens is associated with the integration of certain provisions of legal, scientific and technical knowledge.
82-90 733
Abstract
The article identifies and analyzes the problems of legal regulation of issues related to the departure of minors outside the Russian Federation. The authors believe that the right of a parent to resort to unlimited, groundless and virtually peremptory limitation of the child's departure outside the country on the basis of his or her own will without notification and without taking into account the opinion of the second parent contradicts Part 2 of Art. 27 of the Constitution of the Russian Federation, Para. 1, 2 of Art. 65 of the Family Code of the Russian Federation and amounts to the abuse of parental rights and an act detrimental to the interests of the child who is legally deprived of the opportunity to defend his or her rights in court. To this end, the authors put forward proposals to modify the current legislation in the field in question in order to increase guarantees for ensuring the rights and legitimate interests of children and in order to minimize opportunities for the abuse of parental rights.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

91-100 753
Abstract
The article is devoted to procedural aspects of consideration of administrative offenses in arbitrazh courts. Such cases are considered by arbitrazh courts and courts of general jurisdiction. At different stages of the procedural legislation development, the attitude to administrative disputes that were subject to consideration by the courts of general jurisdiction and arbitrazh courts was mixed. The author highlights the evolution of this issue, analyzes the changing procedural legislation on it, and provides for court practice.

BUSINESS AND CORPORATE LAW

101-108 929
Abstract
The article describes fault as a precondition for imposing civil liability on entrepreneurs. The study investigates the issue concerning the expediency of determining fault as a mandatory condition for imposing contractual liability. The article defines the peculiarities of fault as a precondition for imposing civil liability on legal entities that carry out entrepreneurial activities, if they include the terms concerning fault as a basis for imposing contractual liability. The psychological (subjectivist) and behavioral (objectivist) concepts of fault are analyzed, and a conclusion is drawn that when defining fault as an element of a civil wrong, the behavioral approach should be applied as more efficient. The author examined the irresistible force as the basis that exempts entrepreneurs from civil liability, and identified signs of force majeure circumstances. Within the framework of the article, a comparative analysis of the concepts of "irresistible force" and "case" is carried out. The question of whether it is possible to consider the decisions of state authorities as force majeure circumstances is investigated.

SPORTS LAW

109-117 761
Abstract
The article is devoted to the analysis of modifications of the Russian Federation legislation concerning regulation of high-performance sports (elite sports) and professional sports. The authors consider in detail the legal status of professional sports leagues as one of the main participants of professional sports, including professional sports leagues that unite both Russian and foreign professional clubs, as well as the order of their interaction with all-Russian sports federations also in terms of concluding agreements to delegate rights to host championships and cups of Russia. Particular attention is paid to the problems of concluding agreements to use symbols and names of sporting events by the organizers of gambling in a bookmaker's office with subjects of professional sports, namely, with all-Russian sports federations, professional sports leagues organizing sporting events.

CRIMINAL LAW

118-125 1109
Abstract
The difficulty in distinguishing the mental retardation and the limited sanity of minors is preconditioned by the matching of their intellectual and volitional elements. However, the differentiation of such states is of great legal significance. The author considers the disputable issue of contradictions between the provisions of Part 3 of Art. 20 of the Criminal Code of the Russian Federation that excludes criminal liability of a minor due to mental retardation and Art. 22 of the Criminal Code according to which a minor with a mental disorder that does not exclude responsibility is subject to criminal liability and may be subject to compulsory measures of a medical nature. The article analyzes the possible ways to eliminate contradictions between Part 3 of Art. 20 and Art. 22 of the Criminal Code. The differences are explained between mental retardation, on the one hand, and limited sanity, on the other hand. The conclusion is drawn that the term "age immaturity" corresponds more accurately to the concept of "mental retardation not associated with mental disorder."
126-133 724
Abstract
The article explores the problems of determining the object of obstruction of the lawful professional activity of journalists in the context of the current criminal law provision providing for criminal responsibility for the crime (art. 144 of the Criminal Code of the Russian Federation). Various points of view are identified, characterizing the object of the crime provided for in Art. 144 of the Criminal Code of the Russian Federation, namely the consideration of the freedom of mass information, the professional rights of journalists, etc., as an object of the crime. An attempt to investigate this act from the point of view of a multi-objective crime is made. The criminal legal significance of this object for law enforcers is analyzed. The characteristic of the object of obstruction of the lawful professional activities of journalists is given. The concept of the victim of a crime, enshrined in Art. 144 of the Criminal Code is studied. Based on the analysis of Art. 144 of the Criminal Code of the Russian Federation the author offers her definition of the main direct object, as well as the victim of the crime envisaged in the article of the Criminal Code of the Russian Federation. A new formulation of the disposition of Art. 144 of the Criminal Code is given.

CRIMINAL PROCEDURE

134-145 599
Abstract
This article continues the scientific polemic of the author with the well-known Russian scientists-processivists - Professor S.A. Sheyfer (1924-2017) and Professor A.A. Tarasov on the essence and legal nature of the detention of a suspect in a criminal case. One of the reasons for this discussion is the heterogeneity of doctrinal and legislative approaches to the categories of "investigative activities" and "detention of a suspect". In this connection, the article proposes a way out of the current situation, which makes it possible to reconcile different points of view and gives impetus for the further consolidated development of the theory and practice of detaining a suspect. The author believes that these points of view are not contradictory, but only characterize different stages or manifestations of the same complex legal phenomenon. Therefore, the detention of a suspect should be viewed as a multifaceted, multilevel doctrinal and legal category, which is the subject of various legal cycle sciences and an element of various spheres of legal regulation.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

146-152 1638
Abstract
The article analyzes the features of the examination in the investigation of crimes committed using crypto currency. Objects of examination are identified, criminalistic recommendations are offered to improve the effectiveness of its results and measures to ensure the safety of the data obtained. It is noted that in cases of crimes committed using crypto currencies, the address of the individual or organization and the location of the used hardware and software can be considered the scene of the crime. Specificity of examination of objects and documents on crimes committed with the use of crypto currencies is that, as a rule, service logs of system and application programs, wallets used to carry out transactions, as well as wallet.dat or other files containing information about e-wallets are subject to examination. During the inspection, it is necessary to pay attention to the fact that the personal computer will be the most important source of forensic information due to the specific nature of the crimes committed.

INTERNATIONAL LAW

153-161 3208
Abstract
The principle of autonomy of the will of the parties is the fundamental principle of private international law, as well as the basic, preferable, conflict-related linkage, which provides the parties to the legal relationship with complete and foreseeable legal regulation and relieves the court of the need to resolve the conflict issue directly alongside the legal problems that accompany it. Non-recognition of lex voluntatis by states is fraught with inhibition of the development of both the domestic and global economy, but at the same time the absence of restrictions on the private law principle will inevitably lead to dishonest behavior of economic operators, abuse of rights and violation of the balance of private and public interests in society. Sufficient limitations on the autonomy of the will of the parties in the choice of applicable law are necessary, which makes it possible to achieve the "golden mean" in the legal regulation of relations complicated by a foreign element. These limitations are a complex of time, spatial and content limits of the principle under consideration.

FOREIGN EXPERIENCE

162-168 554
Abstract
The article examines China's experience in the context of legal regulation of the institution of special economic zones, analyzes measures taken by China to attract foreign investment by creating "enclaves" of a market economy in the territory of socialist China, using public management strategies and spatial development of the economy. The author examines the withdrawals of stimulating (a different set of benefits and preferences) and restrictive (closed list) character, which are part of a special mode of carrying out business activities in the territory of special economic zones. According to the author of the article, China's focus on the development of innovations has manifested itself in the implementation of the cluster approach, including the example of experimental free trade zones. In this regard, the question is raised regarding the possibility of adapting the "Chinese economic miracle" to the Russian realities.

LAW ENFORCEMENT

169-177 636
Abstract
The article is devoted to one of the basic problems of the theory of prosecutorial supervision, connected with the definition of the circle of objects supervised by the prosecutor. Based on a comparative analysis, it was concluded that, with outward similarity, the current range of prosecutor's supervision facilities differs significantly from the objects of prosecutor's supervision in the Soviet era. The necessity of the development of a scientific classifier of objects of prosecutor's supervision is substantiated. One of the variants of classification of objects of prosecutor's supervision in terms of the degree of state involvement in the regulation of public life was developed. Within the framework of such classification, the objects of prosecutor's supervision are proposed to be grouped into the following groups: bodies of state power at the federal and regional levels; bodies of public-private partnership; institutions of civil society in the performance of functions delegated by the state; bodies of management of business communities. This classification successfully combines the features of the current state management and features of modern methods of state regulation (imperative and dispositive).

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

178-190 663
Abstract
The article is devoted to the issue of creating legal basis for the protection of the environment of the Russian Arctic. The article provides characteristic of the state of legal regulation, which is considered fragmentary, does not reflect the natural features of the unique and unified ecosystem of the Arctic, and is not able to ensure the ecological development of the region. The authors critically analyze the official concepts of draft laws on the Arctic zone, the current environmental legislation. A proposal has been formulated to adopt a separate law on the protection of the Arctic zone environment, taking into account the effective foreign approaches and needs of Russia, its content is determined.
191-198 600
Abstract
The article examines the current state and prospects for improving legislation in the sphere of granting the right to use subsoil plots and protecting the environment of the Arctic zone of the Russian Federation. The conclusion is drawn showing that the special legal regime of these territories determines the specifics of granting the right to use subsoil and their special protection. It is proved that sustainable development of this region in the long term is impossible without wide application of methods of economic and tax stimulation, use of public-private partnership mechanisms that envisage the implementation of perspective infrastructural, social, innovative, environmental and other projects in the use of subsoil.
199-207 739
Abstract
In modern socio-economic conditions, the main vector of state agrarian policy is ensuring food security. Production, processing, transportation, storage and sale of agricultural products are possible through economic cooperation of various types of agricultural producers. The mechanism of integration is agricultural cooperatives. Their development is impossible without the creation of legal, economic, organizational and other conditions of activity. The implementation of state support is carried out at the federal, regional and municipal levels. Normative provision of development of agricultural cooperation at the regional level is the most important direction of the implementation of the state agrarian policy. As the norm-setting practice shows, only a quarter of RF constituent entities adopted strategic planning documents aimed at developing agricultural cooperation as an independent subject of state support. In other parts of the Russian Federation, one can observe the fragmented and contradictory nature of legal acts regulating state support for agricultural cooperatives. The purpose of this article is to formulate a conceptual approach to regional norm-setting in the field of agricultural cooperation through the prism of a comparative legal analysis of regional models of regulatory support for the development of agricultural cooperation.

CONFERENCES

208-218 417
Abstract
The article highlights scientific discussions held within the framework of the Moscow legal forum on international initiatives on the future development of labor law and social security law. In preparation for the 100th anniversary of the ILO, the scientific community discusses the issues of promoting decent inclusive employment, regulating labor relations in the public service, preventing violence and harassment in the workplace, and prioritizing the implementation of international labor standards in Russian law.
219-225 390
Abstract
He article provides an overview of the contents and outcomes of the event - Young Scientists School "Transformation of the Institute of Legal Responsibility in Changing Social Practice", held at the Kutafin Moscow State Law University (MSAL) from 29 January to 2 February 2018. The relevance of the chosen scientific and practical direction, goals, objectives of the Winter Young Scientists School 2018 is presented. The article presents the main aspects of speeches of school leaders, as well as lectures and practical classes of leading Russian jurists, who participated as teachers and moderators of the Winter Young Scientists School 2018. During the Winter Young Scientists School 2018, particular attention was given to the individual and collective studies of the participants. The presentations and organization of the discussions of the School participants dedicated to the goals, objectives, and implementation of individual and collective scientific research took place on the first and final days of the Winter Young Scientists School 2018.

REVIEWS

226-230 443
Abstract
He review of the monograph by I. A. Isaev "Imaginary Statehood. Space without Territory" published in 2018 in the publishing house "RG-Press" (224 p.) highlights a rare phenomenon. The point is that some specialists, who have a legal education, sometimes manage to create works that have a serious philosophical depth and wide worldview scale. Presented text can be referred to the latter. The author convincingly, on numerous historical, theoretical and literary examples, shows that it is the phenomenon of an imaginary state that acts as a kind of "red line" of the history of socio-political thought, and therefore, of a present reality that grows from the myth no less than from truth. There are a lot of philosophical searches and conclusions. This, for example, is an original view, according to which there is a political and legal dimension in the metaphysical reflections of the ancient. I.A. Isaev demonstrates his negative attitude towards the one-sidedness of legal positivism, understanding of the importance of the moral factor for a man, society and the state. This is a holistic and fascinating study, characterized by the depth of content, variety and brightness of the form.
231-236 399
Abstract
This article is devoted to the review of the monograph by A.L. Sergeev "Russian Statehood in the 21st Century: Main Problems". The given book provides the concept of a multi-aspect political and legal phenomenon of statehood and analyzes its structural elements. A strong feature of the research is the interdisciplinary nature of the monograph and the study of the problems of the Russian statehood at the junction of law, politics, ideology and philosophy. The book is also not devoid of some shortcomings. The relevant remarks are given in the article, but in general, the work is of a high-quality scientific nature. This monograph will be of use for students, graduate students, university professors and all those interested in political and legal issues.


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