No 10 (2018)
ТЕМА НОМЕРА «ПРЕДМЕТ КОНСТИТУЦИОННОГО ПРАВА: ИСТОРИЯ И СОВРЕМЕННОСТЬ, ТЕНДЕНЦИИ И ПЕРСПЕКТИВЫ»
11-23 983
Abstract
In the authors' opinion and in the context of contemporary science of constitutional law, the doctrine, the rule-maker (in a broader sense) and jurisprudence of the Constitutional Court of Russia give dynamism to the subject matter of constitutional law. If regarding the role of the latter in extending and deepening the constitutional law subject matter modern scholars' opinions are generally unanimous, since this happens on the basis of powers constitutionally enshrined by the "will of the State giving these relations a fundamental character" (Oleg E. Kutafin), the influence of the doctrine and regulations on the extension of constitutional law needs more thorough consideration. The author, using regulatory acts and doctrinal provisions as examples, demonstrates an imaginary and actual extension of constitutional law subject matter. Arguing her point of view, the author warns us against further imaginary extension of the subject matter of the leading branch of the Russian legal system and highlights promising areas with regard to further extension of the doctrinal basis and thereby expanding the constitutional law subject matter.
24-35 2572
Abstract
The article, based on the analysis of trends in the development of domestic constitutionalism and the jurisprudence of constitutional justice, provides for the author's understanding of the constitutional law subject matter in relation to its stability and dynamism. The issue of substantive definiteness of constitutional law is eternal in nature due to the fundamental, decisive role that constitutional law plays in the system of legal regulation. In this regard, the author substantiates an approach under which the substantive extension of the scope of constitutional legal norms is a natural consequence of new global threats to law and the need to find responses to them within the framework of systemic, intersectoral decisions that underlie harmonization of basic values of the society, namely, freedom, authority and property. The latter constitute a triune substantive essence of constitutional law and the whole system of modern constitutionalism. The dynamics of subject matter characteristics of constitutional law confirms that this represents a kind of "supra-branch" formation, the core of the entire legal system. Constitutional law possesses regulatory relations with all branches of law, every sector within the branch, which is evidenced by the practice of the Constitutional Court of the Russian Federation. In this regard, special attention is paid to the analysis of the impact of constitutional justice on the development of the subject matter characteristics of constitutional law, whereby constitutionalization of the legal system, as well as the practice of law enforcement, is ensured.
36-43 2106
Abstract
The article is devoted to the problems of identifying the subject matter of constitutional regulation on the basis of author's ideas concerning such categories as legal regulation and legal impact, law-making and law-enforcement regulation, the subject matter and object of regulation. The author highlights the importance of the method and legal structures for determining the subject matter of separate branches of law. It is shown that the originality of the constitutional law subject matter is determined by the place this branch takes in domestic law. First, constitutional law has its own sphere of regulation - relations regarding the formation and exercise of the supreme power. Second, constitutional law is aimed at solving a whole range of general legal tasks, such as those that are solved under the general norms within the framework of individual branches of law. Under the second direction, the subject matter of this branch covers the subject matter of national law as a whole. In addition, it includes all branches of national law (law becomes the subject matter of law).
44-54 1096
Abstract
The article is devoted to the analysis of the features of the Russian Federation Constitution that ensure stability and constructive development of this fundamental act. It is emphasized that these particular characteristics directly affect the state of sociopolitical reality, since modern constitutions are nothing more than a political and legal mechanism, the effective functioning of which determines sustainability of sovereign social systems and their progress in a rapidly changing world. Particular attention is paid to demonstrating the historical conditionality and functional effectiveness of "internal inconsistency" of the Russian Constitution of 1993. The paper explains philosophical, political, legal and practical significance of the constitutional recognition of equal social value of formally competing principles and ideas. It is noted that the model of the Constitution of the Russian Federation should be considered as one of the most effective, since the average "life span" of democratic constitutions adopted during the period 1789-2005 is about 17 years, while in 2018 we are celebrating a quarter century of the Basic Law of our State.
55-64 2028
Abstract
The article on the basis of the provisions of the Constitution of Russia, constitutional legal acts and scientific publications highlights the most important features of the subject matter of constitutional law. Particular attention is paid to the consideration of a unique nature of two aspects of the subject matter of this field of law: a unique nature of the content and normative composition of constitutional law. The author argues that in many respects due to the specified aspects of the subject matter the branch in question functions as the key branch in the legal system of the Russian Federation. The most important feature of its subject matter is that it establishes the foundations of legal relations between a person and a State, the federative structure of the State, as well as the form of government and municipal authority. The need to regulate relations in question in compliance with constitutional law is caused by the fact that at the present stage of development of human civilization only the State is an absolutely dominant way of organizing the society; the State is a necessary condition for the optimal existence of human civilization. At the same time, the State, as the dominant factor of modern social existence, is not inherent in human nature. Therefore, the key conceptual significance is attached to such regulation of relations between a person and the State that is able to determine State activity within the boundaries of a certain framework. That is, to limit it so that the State does not prevail over the individual. In other words, modern constitutional law assumes that the state exists for a person rather than a person for the State. It is this legal idea that is the core principle of organizing the State and constitutional law as the leading branch determining the foundations of the status of the State and the framework of its activities for the benefit of the person. Also, the article examines a special role and significant proportion of norms-principles and norms-definitions in the Constitution and constitutional legislation of Russia as a factor influencing the leading role of the branch in question in the RF legal system. Compared with other branches, constitutional law has a much larger proportion of norms that have the constitutive nature of prescriptions. Constitutional law is especially closely connected with the norms of morality.
65-75 1714
Abstract
The article deals with the problematic issues of determining the constitutional law subject matter. Particular attention is paid to the analysis of Oleg E. Kutafin views, who devoted one of his monographic works to the issue in question. The article defines the features of the constitutional law subject matter that distinguish it from other branches of law. The author shares Oleg E. Kutafin opinion that constitutional law "has as its subject matter a two-fold object of regulation," and extends this statement. The author summarizes different scientific approaches to the definition of the subject matter of constitutional law, its scope, current status, place it takes in the system of branches of Russian law, and relationships between them. The author addresses the question of whether the Constitution is exclusively a source of constitutional law or of all branches of law, since it affects all spheres of public life, examines Oleg E. Kutafin views and the views of other scholars who hold different positions on this issue. The author concludes that the constitutional law subject matter is diverse, multi-level, multidimensional, dynamically developing, responding to changes in realities, which confirms conclusions made by Oleg E. Kutafin.
76-83 950
Abstract
The constitutional law system needs to be improved due to the most recent changes. It is necessary to reconsider the concept of the constitutional law system and structure. It is proved that the system of constitutional law forms the internal structure of this branch of law with regard to the current state of social relations that are governed by the norms of constitutional law. The author presents the system of constitutional law in the form of a pyramid: at the top there are the values followed by the principles, then the sub-branches, the institutions and, finally, the bottom of the pyramid is formed by the norms of constitutional law. The author offers her own understanding of classification of constitutional law norms. Particular attention is paid to the development of integrated institutions of constitutional law, including the norms of other branches of law. The author substantiates the necessity of including its principles into the system of constitutional law. The author suggests her own classification of the principles of constitutional law: according to the degree of implementation, according to the sources of consolidation, according to the spheres of regulated constitutional legal relations. The author justifies the need to include values that play an important ideological role penetrating the public legal conscience into the system of constitutional law. Obtaining such values becomes an ultimate purpose of activities performed by citizens and public authorities.
84-91 1010
Abstract
The article is devoted to current theoretical issues related to the system-structural formation of constitutional law. The author considers the main approaches to the subject matter of constitutional law and its constituent institutions. Particular attention is paid to the characteristics of the main institutions of constitutional law, to which the author relates the foundations of the constitutional system, the foundations of the legal status of the individual, the federative structure, the right to vote, the foundations of the formation and functioning of the system of public authorities. An important place in the article is assigned to the definition and analysis of factors influencing the development of system-forming institutions, as well as their inherent tendencies. In the author's opinion, the essence of the constitutional law core institutions contains not only legal, but also moral principles.
92-102 978
Abstract
The article focusses on the problem of determining and expressing the subject matter of Russian constitutional law. In author's opinion, the discussion is still not finished not only due to inconsistency of scientific approaches and conceptual constructions, but also Russian constitutional practice. The author highlights the variety of approaches in course books. There is a tendency to include in the area of constitutional regulation an extremely wide range of social relations functioning in all fields (political, economic, social, spiritual). According to the author, despite the value judgements concerning approaches to the definition of the subject matter of constitutional law, the positivist legal method prevails. The author considers methodological approaches established in the domestic doctrine of constitutional law. The author highlights the importance of the concept of constitutionalization and its role in localization of the subject matter. The author substantiates the constitutional law subject matter on the basis of the functional purpose of the branch in question, the spheres of constitutional regulation with due regard to the characteristics of constitutional law development.
103-113 3853
Abstract
The article analyzes general laws of the evolution of the content of the regulation of legal relations on the example of constitutional law from the standpoint of the general theory of law, emphasizes the fundamental nature of the constitutional law subject matter as the leading branch of Russian law. Special attention is paid to the analysis of various approaches to the definition of the constitutional law subject matter. The authors come to the reasonable conclusion that the constitutional law subject matter is characterized by dynamism, is distinguished due to the basic nature of fundamental legal institutions, the logical transition of content from the general to the specific, and then to the individual, and, ultimately, to the unique. This determines the value of the constitutional law subject matter in the Russian legal system in general and the system of law in particular.
114-119 1277
Abstract
The content of the subject matter of the branch of law not only forms the basis for a modern theoretical discourse, but it is also consolidated in legal instruments. The passport of scientific specialty that demonstrates the content of the relations to be studied and analyzed within the framework of the thesis is the basis for expert evaluation of scientific work. It is an instrument to which the same requirements must be applied as to any other regulatory act affecting the rights and obligations of a person. In particular, this instrument must meet the criteria of legal certainty, consistency, clarity. Theoretical approaches to the formation of the limits of the constitutional law subject matter do not make it possible to separate it from other related branches. There are no clear criteria for such separation. At the same time, the need to restrict constitutional law subject matter from other branches still exists, since the content of the subject matter that is expressed in the scope of relevant legal relations functions as a criterion for the assessment of the thesis that incurs certain legal consequences for the author. It is hardly possible to develop legal criteria for a clearer definition of the boundaries of the subject matter of the branch of law (and, therefore, scientific specialty). Therefore, we need in doctrinal approaches to the assessment of relations that form the subject of the branch of law.
120-125 534
Abstract
The purpose of the article is to identify foundations of the constitutional law subject matter. The author resorts to the dialectic method of cognition of the constitutional law subject matter, which results in establishing the continuity and variability of the content of the constitutional law subject matter, the method of analysis that establishes the relationship between the notions "a form of the State", "content of the State", "attributes of the State" and their significance for determining the constitutional law subject matter. The author highlights the necessity to distinguish the State as a form that inevitably emerges during the evolution of the man and society, as well as the State as a concept with certain historical content embodied in principles, rules, and procedures. The paper provides for the author's understanding of the constitutional law subject matter ontology expressed through the essence and the main elements: The State (elements of the State); human rights and freedoms; public relations arising as the result of implementation of the attributes of the State. The constitutional law subject matter, though historically variable, reflects the totality of common relations associated with organization and functioning of the State, its interaction with an individual and a citizen. The article is scientifically valuable due to the fact that it substantiates the need for researchers to take into account essential foundations of the constitutional law subject matter.
126-142 663
Abstract
The fascinating acceleration of social dynamics leads to a critical perception of the traditional methodology of law, which predominantly goes back to the dogma of legal positivism. Modern science of law is intended to assess current trends leading to a qualitative transformation of social systems in the near and distant future, and to propose leading models of their regulatory framework. The concept of constitutional futurology, which takes into account the need to maintain adherence to the principle of the rule of law, even in a situation of growing critical threats and challenges posed by technological and social innovations, is associated with the solution of such tasks. Constitutional futurology can be understood as the current edition of the academic policy of law. At the same time, unlike the latter, it avoids competing dogma and consistently adheres to constitutional legal thinking. On this basis, it becomes possible to consolidate and synchronize sectoral legal studies of the "sleeping factors" of the postmodern era and the digital economy. The phenomenon of cryptocurrency and blockchain technology is taken into focus.
143-150 570
Abstract
Laws are adopted by the state for all members of society and their needs; the application of laws by the courts in resolving disputes is carried out in order to protect the rights of citizens. Therefore, citizens are "recipients" of the results of constitutional relations regarding the adoption of laws. In this sense, the right of a citizen to initiate constitutional court procedures is one of the main ways of directly influencing the state, passing such a law that changed the boundaries or the content of constitutional rights, freedoms of a person and citizen.
151-161 973
Abstract
The article contains an analysis of the doctrine, a comparative assessment of the constitutional and international law regulation, the practice of international and national courts. The understanding of the subject matter of constitutional law as a two-level system of general and specific social relations has been established and developed in the light of globalization and diversification of modern law. On the one hand, the influence of general constitutional and legal relations has increased in the context of expanding a regulatory role of the principles of law. On the other hand, there are additional types of specific relations arising due to the constitutionalization of new areas of legal regulation. The article provides for the classification of generally recognized principles and norms of international law in their Constitutions. One group defines generally recognized principles and rules of international law as part of the national legal system (e.g. Austria, Greece, Portugal). Another group also establishes the scope of their legal force (Belarus, Germany, Georgia, Russia, etc.). The third group determines only the scope of the norms of the International Treaty and the law (Armenia, Bulgaria, Poland, Kazakhstan, etc.). A dynamically developing trend represents simultaneous involvement of international and national courts in the interpretation of constitutional and legal matters. Binary interaction of national and international law is expressed in both the practice of mutual recognition of legal standings of different courts and rendering adverse decisions. Common approaches and differences are demonstrated, in particular, by comparing the practice of the EU Court of Justice and the courts of European States, the ECHR and the courts of the Russian Federation. The concept of global constitutionalism causes internationalization of constitutional law. It is noted that all proponents of global constitutionalism offering to recognize the idea of international constitutional law and International Constitution thereby bring the discussion concerning constitutional law and its subject matter to a higher level.
162-169 679
Abstract
The peculiarity of constitutional law as a branch of law lies in the ongoing transformation of its subject. The sphere of relations governed by constitutional law may expand and contract. In the Russian constitutional doctrine, there are two main traditions of explaining this feature. The classical approach to the definition of the subject of constitutional law considers it as unified and unchanged, while the content of the industry is diverse and dynamic. The postclassical approach is based on the multiplicity of relations that make up the subject of the industry, not opposing the subject of the industry to its content. Common to both traditions is the inclusion in the content of the subject of the branch of public authority relations, and the construction of the legal theory of public authority as a subjective right allows including relations of public representation in the subject sphere of constitutional law. Public representation acts as a mandatory legal condition for the publicity of government, the distinction between public and corporate interests in the process of its implementation. In the modern state, public representation is systemic; it covers the types, forms, levels of public representation, which explains the systematic nature and diversity of the relevant norms of constitutional law.
170-176 633
Abstract
The article is devoted to the regulation and study of the socio-economic provisions of the Constitution of Russia. The author points to the absence of a chapter on the fundamentals of the social structure. Replacing such a chapter with a more general chapter on the fundamentals of the entire constitutional system has its advantages and disadvantages, gives rise to different methodological approaches to the study of the constitutional foundations of the social structure, and in particular its socio-economic principles. The combination of such principles, basic socio-economic provisions, constitutional institutions governing the main socio-economic relations, creates a specific socio-economic paradigm (model) for an individual constitution or a group of similar constitutions. The article proposes a scheme for the study of such principles and provisions, and names some socio-economic principles that are not fixed but necessary for a modern constitution. The article analyzes the approaches to the legal definition of the concept of the constitution. The author points to a new vector of constitutional development. On this basis, the structure of constitutional law may be somewhat changed. Having analyzed the experience of the constitutional development of some foreign countries, the existing constitutions, conclusions and proposals of constitutional scholars, the author determines that the paradigm of the modern constitution includes five components.
177-183 956
Abstract
Citizens' participation in the management of state affairs, being the most important constitutional law, is exercised through various direct or representative mechanisms. Public control - a modern democratic institution - should also be attributed to one of the new tools that allow for civilian participation in governance processes. It is of the greatest interest at the municipal level, where the activity of the authorities is as close as possible to the population, and its results directly affect citizens' quality of life. The subjects of public control, enshrined in the Federal Law "On the Fundamentals of Social Control in the Russian Federation" in the form of public chambers and public councils of municipalities, are public-state entities. Citizens and their associations are not included in the direct subjects of public control, and their involvement in public control is connected with the will of the organizers of these events. In order to increase the activity of the population of municipalities in assessing the activities of local authorities, legislative proposals on the inclusion of citizens and public associations in the list of direct subjects of public control are justified. In addition, the author proposes additional subjects of public control for the municipal level, which at the same time ensures the expansion of the constitutional right to participate in management by means of public control tools.
184-195 2199
Abstract
The article is devoted to the study of the subject of constitutional law from the position of inclusion of the institution of constitutional and legal responsibility in the structure of relations regulated by constitutional law. The author, analyzing the various approaches to the classification of legal relations covered by constitutional regulation established in the doctrine of constitutional (state) law, suggests two reasons for the classification of such legal relations. From the point of view of the nature of power relations regulated by constitutional law, one can speak of three groups of legal relations - political, economic, moral and cultural relations that form the basis of the legal regulation of the sphere. Taking the type of constitutional relations subjects as a basis for division, we should talk about relations connected with the organization of public authority (status of the head of state, government, parliament, etc.), relations between society and the state (status of political parties public organizations, principles of economic and social relations, etc.), between the individual and the state (general provisions on the legal status of individuals, rights and freedoms, the status of foreigners and stateless persons, etc.). The paper concludes that the norms of the institute of constitutional and legal responsibility permeate several key groups of legal relations regulated by constitutional law at once, and this institute is a complex institute of the branch of constitutional law. The article also provides a brief review of the main trends and problems of the development of the institute of constitutional legal responsibility in Russian constitutional law at the present stage of development.
THEORY OF LAW
196-203 2924
Abstract
The article is devoted to the definition of the principles of law concept as one of the fundamental categories. The article presents different points of view on this issue; an attempt is made to define the principles of law in a lexical-semantic way. The main provisions of the general theory of systems are analyzed and on their basis the concepts of "legal system", "legal structure", "legal environment", "legal system", and "legal metasystem" are considered. The author makes some conclusions about the advantages of the system approach in the definition of law and its principles, since it allows defining the most important features of law, giving a qualitative description of its content and properties as a regulator of social relations.
FINANCIAL LAW
204-210 423
Abstract
The article gives a legal description of the existing world practice approaches to determining the tax base of a foreign organization operating in any jurisdiction through its permanent establishment. The position of the Organization for Economic Cooperation and Development (OECD) is analyzed in relation to each of the considered approaches to the definition of taxable income of the permanent establishment, namely approaches related to the degree of "gravity", fractional and actual approaches to the classification of profit to the permanent representative of a foreign organization. The author considers in detail the use of the "separate and independent enterprise" approach as the "official approach of the Organization for Economic Cooperation and Development" to determine the profit of an organization attributable to its permanent establishment. Special attention is given to conducting a functional analysis of the activities of the permanent establishment as one of the main stages in determining the size of the profit of a foreign organization related to the permanent establishment.
211-215 505
Abstract
The legal regulation of bankruptcy of Russian organizations attracts the attention of authors of numerous publications, while research is more focused on theoretical and practical issues that arise during the application of bankruptcy law and less often affect the legal regime of taxation in bankruptcy. The problems of correlation of legislation on taxes and fees with the competition legislation have so far not become the subject of an independent comprehensive study, some issues are considered occasionally when analyzing certain problems. The author dwells on the problem of the correlation of legislation on taxes and fees and bankruptcy legislation in relation to the accrual of penalties and moratorium interest on the amount of arrears. In order to harmonize the current rules for calculating penalties and observing the principles of tax law, the author proposes to fix the clause "unless otherwise provided by the legislation on bankruptcy" in Art. 75 of the Tax Code of the Russian Federation. Besides, the author offers to additionally name penalties in the Bankruptcy Law, even if in a different amount than established by the Tax Law, as a form of security for claims on mandatory payments. The implementation of this proposal will not change the order of interest accrual (penalty interest) and the procedure for settlements with creditors in a bankruptcy case, but will increase the legal technique of the law and mitigate the conflicts of interpretation of the relevant terms.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
216-224 1048
Abstract
Based on the analysis of the existing practice of general jurisdiction courts the article critically examines the institution of civil procedural capacity, which is one of the foundations of civil procedural law that mediates the citizens' exercise of the constitutional right to judicial protection of rights, freedoms and legal interests. Civil procedural capacity, regulated by the rules of the Civil Procedure Code of the Russian Federation, has a significant difference, which consists in isolating the right to entrust a case to a representative from other procedural rights of a person participating in the case. This feature largely determines the specifics of the application of this legal institution. The author proposed a classification of civil procedural capacity, based on the criteria of the age, the volume of procedural rights and obligations of persons involved in the case, as well as the presence of special conditions. The study makes it possible to identify significant problems of legal regulation of the institution of civil procedural capacity, its ambiguous interpretation, as well as multi-directional development of the relevant practice of courts of general jurisdiction.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
225-235 576
Abstract
The article is devoted to the theoretical justification of the need to introduce criminal law prohibitions on criminal encroachments in the sphere of cryptocurrency turnover in Russia. The author analyzes the principles and grounds for the criminalization of such acts in connection with their increased public danger. The article examines the prerequisites, grounds and justification for criminalizing criminal offenses in the field of cryptocurrency turnover, problems of applying current criminal law provisions to acts committed using cryptocurrency, examines the opinions of law enforcement officials, prosecutors and the court, relating to the category of cases considered. The author's position on problematic issues is presented.
236-244 538
Abstract
This article considers the first attempt to scientifically comprehend the problem of shaping the social demand of society in the field of criminal environmental policy. It is concluded that from the point of view of the criminal ecological component, a social request should consist in the need to achieve the most acceptable level of environmental protection, environmental safety and rational use of natural resources, as well as prevention of environmental crimes by the state and its competent authorities. The attention of the author is focused on the use of this method by citizens as one of the types of control over the activities of public authorities in the criminal law environment. Arguments are made about the need for a more detailed study of the institution under consideration, since such an approach seems to be a real mechanism of direct democracy in relation to the activities of public bodies of state power.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)