No 7 (2016)
PAGES OF HISTORY
11-19 1118
Abstract
The Commission on Codifying Laws presided over by Peter V. Zavadovsky continued its work from 1801 till 1826. The work of the Commission resulted in developing two projects. The first project was launched in 1805, and it aimed to reform judicial institutions that assumed the existence of three judicial authorities, namely: a district (uyezd) court was supposed to exist in every county (uyezd) town, chambers of criminal and civil cases in every province (guberniya), and the Senate as the third judicial authority. The second project was completed in 1818 and resulted in developing a draft criminal procedure that in the opinion of many researchers was "extremely unsatisfactory" because it did not provide for the publicity of court proceedings, and in the sphere of the court system in the majority of cases it just duplicated the approaches of the Commission that had been in operation 12 years before and provided for a three-layer court system. Particular attention is paid to the activities of Mikhail M. Speransky, who at different times developed projects with regard to the Judicial Senate and Executive Senate, as well as county, provincial and district courts. The author demonstrates interrelations between Speransky's ideas and the work of the Commission.
20-30 404
Abstract
In connection with the growing public interest in legislative initiatives under consideration of deputies of the VI convocation of the RF State Duma, both the legal science and practice and ordinary citizens are interested in the procedures of a bill passing the Parliament including the procedure of initial development and preparation of documents of a bill package. For now, in Russia the legislative procedure has been regulatory consolidated and is often subjected to scientific research; at the same time its formal execution and document support have been formed as the result of consistent evolutionary development of administrative relationships between the bodies of supreme governance of the Russian Empire in the XIX century that shaped the practice of interrelation and formal execution of initiatives and decisions in the sphere of law-making. The paper provides a thorough analysis of the procedure of regulatory execution of legislative and managerial initiatives in collective bodies of state power at the supreme level of government of the Russian Empire. The author also examines procedural acts employed to register initial proposals to improve the legislature, to perform certain administrative tasks and to formalize documents containing decisions made by a state agency and providing the basis for passing a regulatory act. The author defines the place of a procedural act in the legal practice of absolute monarchy.
STATE POWER AND LOCAL SELF-GOVERNMENT
31-41 665
Abstract
The Federal Law «On State Civil Service of the Russian Federation», along with the general rules on the disciplinary responsibility of civil servants for committing disciplinary offenses, contains special rules governing penalties that can be imposed for committing corruption offenses. In this context there are different approaches to the nature of responsibility for such offences. It is well-known that the nature of legal responsibility for certain offences is determined by the nature of the acts underlining such responsibility. When comparing the elements of a disciplinary offence and a corruption offence we can come to a conclusion that shows their considerable similarity, though, at the same time, a corruption offence contains certain specific elements. Thus, a corruption offence is a special kind of a disciplinary offence when a civil servant does not comply with civil service restrictions and prohibitions, requirements to prevent or resolve conflict of interest issues or issues concerning the failure to carry out obligations established under the law in order to prevent corruption. The authors claim that there are no sufficient grounds to declare civil servants responsibility for committing corruption offences as a separate type of legal responsibility. Such responsibility can be dealt with as disciplinary responsibility for corruption offences prescribed under the law as one of legal tools used to prevent and overcome corruption in the sphere of civil service.
42-49 351
Abstract
In 2015 the draft law "On Special Aspects of Allocating Land Plots in the Far Eastern Federal District” became the most talked about draft law that was posted on "The Federal Portal of Projects of Legal Regulations" for public debate on July 24, 2015. The authors of the paper analyze the wording of this draft law and draw special attention to its areas of concern; they also forecast the effects of this draft law adoption. The authors consistently consider tax law issues connected with allocating land plots. The authors conclude that the law making procedure aimed at regulating the process of allocating land plots in the Far East is an important step for the region development and improvement of social and demographic situation in the territory of the Far East and Baikal Region.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
50-56 425
Abstract
The problem of providing evidence and proving in prejudicial (extra-judicial appeal against acts (omissions to act) and decisions of state agencies and state agents is currently being insufficiently covered in the doctrine of administrative law both in terms of defining general concepts and in terms of the mechanism of implementing rights and obligations of the participants of the process of proving. The analysis of regulatory provisions and scientific works leads to the conclusion that this problem is complex and controversial, and to resolve this problem we need to take into account, on the one hand, interests of citizens and collective entities and, on the other hand, to avoid excessive "over-regulation" of certain administrative decisions that will prevent state agencies and state agents from exercising powers conferred on them.
FINANCIAL LAW
57-67 435
Abstract
The article is devoted to such an important feature of law as systematicity. Systematicity of law increases while social relationships are becoming more complicated and differentiated, and the sphere of their legal regulation is becoming wider. Systematicity becomes especially noticeable and significant after mature legislation has been developed by a civil society. The author analyses the system of taxes and fees and compares it with the tax system of the Russian Federation considering these categories as the general and the specific. An important place is given to the interrelation between the budget system of the Russian Federation and the system of taxes and fees. The budget system and the system of taxes and fees should develop on the basis of internal unity of financial legislation in order to secure financial activities of the State and municipalities.
LEGAL REGULATION IN THE INFORMATION SPHERE
68-74 453
Abstract
The Internet due to its accessibility, involves a large number of users, among them minors. Almost every child has a mobile device that allows her to surf the Web at any time. On the one hand, this is a positive experience in terms of knowledge, fast access to essential scientific sources, and on-line communication with parents. On the other hand, this poses a constant risk of being influenced by harmful information from other Internet users. The impact of harmful information on the fragile minds of underage users can be extremely negative. Therefore, the problem of regulation of harmful information dissemination on the Internet is of great concern. There are several ways to combat harmful information and its impact on children. All possible types of harmful information for dissemination of which administrative or criminal responsibility can be imposed are enshrined in federal legislation. The fight against Internet-based resources that host harmful information can provide for perpetual blocking of the site. Preparing children for virtual communication with parents and educational institutions.
CIVIL AND FAMILY LAW
75-82 490
Abstract
Adoptive relationships act as alternative (optional) parental relationships. To acquire them a special procedure equated with the birth is established. This statement is substantiated not only in family law but in other branches of law as well. The concept of family needs to be enshrined in family law legislation and cover both biological parents and alternative social parents (adoptive parents and adoptees). At the state level, the development of responsible parenthood (adoption), the presumption of good faith exercise of parental authority that to full extent spreads over parental relationships should be entrenched as priority areas of the state family policy.
THE JUDICIARY AND COURT SYSTEM
83-92 3360
Abstract
The article reveals the meaningful essence of the concept of the unity of the status of judges set forth in the RF Law "On the Status of Judges in the Russian Federation” and the Federal Constitutional Law "On the Judicial System of the Russian Federation" provided six statuses of judges of different tribunals in the Russian Federation are substantiated by means of different laws of the Russian Federation. The author poses the question of whether it is necessary to develop and adopt a new uniform law on the status of judges in the RF at the constitutional level that ought to remove inconsistency in the effective legislative regulation of the status of judges in the RF.
LABOR RELATIONS AND SOCIAL SECURITY
93-102 750
Abstract
The article is devoted to the problem of developing a list of principles for resolving labor disputes between individuals that need to be consolidated in the Labor Code of the RF, as well as to the justification of the necessity for their consolidation. The article gives a detailed analysis of different classifications of principles of resolving and dealing with labor disputes between individuals that can be found in both the doctrine of Russian Labor Law and doctrines of certain foreign states, and acknowledges a significant variety of opinions on the issue between scholars. Special attention is paid to consolidating the principles of resolving labor disputes between individuals in labor law legislations in foreign states and international instruments such as ILO Recommendations. On the basis of the research of doctrinal approaches and regulations, the author identifies the same direction of principles aimed at resolving labor disputes between individuals in the Russian Federation, foreign countries and the ILO instruments. On the basis of the undertaken cumulative analysis the author concludes that it is necessary to consolidate the principles of resolving labor disputes between individuals in the Labor Code of the RF and justifies such necessity by means of referring to the law enforcement practice of the courts of the Russian Federation at different levels; also the author proposes to amend the legislation concerning the limitation period for filing a complaint in labor disputes. Finally, the author offers to supplement the Labor Code of the RF with Article 382.1 "Principles of Resolving Labor Disputes between Individuals” and give further interpretation of the content of this article.
103-109 384
Abstract
The article carries out the analysis of the issues connected with preserving previous average monthly wages when transferred to another less paid job with the emphasis made on the fact that the effective legislation does not define the concept of an employment injury that is referred to in Article 182 of the Labor Code of the RF. The paper also examines controversial issues arising in law enforcement practice in connection with the procedure of recognition of an accident that has occurred to an employee at work.
CRIMINAL LAW
110-117 429
Abstract
The article examines recent amendments made to Article 178 of the Criminal Code regarding the definition and interpretation of the elements of the act aimed at restricting competition and set forth in this Article. The author offers the ways of resolving disputable issues of qualification, makes proposals for further improvement of criminal law in this sphere.
118-126 900
Abstract
Emotional state, though not a legal concept, becomes crucial in qualification of offenses under Article 107 and Article 113 of the Criminal Code of the Russian Federation. The article defines affect as both psychological and criminal law categories making emphasis on differences in their interpretations. The author proves that from psychological point of view when a crime of passion is committed it involves direct intent only, because an offender intended to eliminate a stimulus that causes strong feelings. The author examines peculiarities of the state of a person subjected to the long psycho-injuring situation. The paper demonstrates differences between the state of affect and partial sanity. The author concludes that a person in the state of affect, at the same time, may be recognized to be partially sane. With this regard, the author highlights the necessity to take into account partial sanity of such a person as a circumstance mitigating the punishment when it is qualified under Article 107 or Article 113 of the Criminal Code of the Russian Federation.
127-133 411
Abstract
The article is devoted to the examination of sexual exploitation of an individual as a sector of the criminal economy. On the basis of statistical data the author analyses the prevalence of main forms of sexual exploitation (prostitution, pornography, "traffic", etc.) in the modern world. The author also evaluates "return" on sexual exploitation of an individual and the growth of such returns. On the basis of the analysis of statistical and other data undertaken by the author, he concludes that sexual exploitation as a sector of the criminal economy covers at least the situations of using, supplying or offering any person for prostitution (any other way of using sexuality of a person) or production of pornography by use of force or coercion in order to derive financial or other benefit. The author also makes assumptions about the factors conducive to the spread of sexual exploitation of a person. To sum up, the author concludes that the need of the society to counteract sexual exploitation as the sector of the criminal economy is obvious.
CRIMINAL PROCEDURE
134-143 783
Abstract
The article substantiates that supervisory work of a public prosecutor is the most important instrument for ensuring legality, although his procedural powers are not adapted to the contracted form of inquiry that is characterized by limiting the time of proceedings, the impossibility of implementing certain rights of the participants, an inchoate subject of proof. In view of substantial changes in the order of the procedure aimed at checking information concerning offenses the authors share the views expressed in the literature regarding the necessity to return to a prosecutor the power to initiate criminal proceedings and to verify reports of offenses on the ground of the facts revealed by a prosecutor. In exercising supervision the author offers a prosecutor to take into account that when an inquiry in a contracted form is being held, it is necessary to establish not only the circumstances of a crime, the nature and extent of the harm caused by a crime, the guilt of the person committing a crime (in accordance with Part 1 Article 226.5 of the Code of Criminal Procedure of the RF), but also all information concerning a crime in accordance with Article 73 of the Code of Criminal Procedure. When it is necessary to carry out a large amount of investigative and other proceedings, an inquiry shall be held in full form. The author concludes that the transformation of an inquiry in a contracted form into a specific order of prejudicial proceedings is perspective provided procedural powers of a prosecutor are brought into accordance with the peculiarities of an inquiry.
144-151 499
Abstract
According to the decisions of the ECHR, the definition of the legal status of persons contributing to investigative activities, is based on criminal procedure and affects the process of considering the issue of fairness of a trial. To prevent manifestations of provocation when conducting investigative activities it is necessary to impose different requirements for information to be received from individuals acting as complainants and persons are cooperating with authorities conducting investigative activities.
152-159 835
Abstract
The paper considers existing problems of fixing the course of investigative activities in the circumstances of predominance of digital technologies. The author thoroughly explores the structure and content of an investigation report and analyzes existing problems. Special attention is paid to the process of how an investigation report acquires the features of inalterability and inadmissability of making changes. On the ground of the opportunities provided for by modern technology, the author offers to change the interrelation between the evidential value of the record of an investigative act and its report. An investigative act recording carried out by means of technology should become the main form of fixing its progress and results, rather than an investigation report that should be drafted only when recording is impossible. The author justifies the absence of necessity to store a digital medium containing the recording of an investigative act during the entire period of criminal proceedings.
INTERNATIONAL LAW
160-165 690
Abstract
The paper presents a brief review of key tests and criteria applied by the European Court of Human Rights when considering and evaluating applicant's complains regarding Member States of the European Convection for the Protection of Human Rights and Fundamental Freedoms violations of the right to independent and impartial courts that also enshrines the concept of "fair trial”. First, the author examines the concept of "independent court” and then the concept of an "impartial court". Despite the fact that these two concepts are often dealt with by the European Court as closely interrelated, the Court practice has developed different tests to evaluate each of them.
166-171 967
Abstract
The paper gives the analysis of the national law guarantees of the rights of foreign investors. National law guarantees can be classified in accordance with the scope of rights provided by them as general and special guaranties. The author considers that implementation of economic, political, moral, cultural and other guaranties is performed by means of legal guaranties. In this context, legal guarantees can be attributed to general guarantees through which all other guarantees are implemented. In turn, foreign investors' rights guarantees set forth in the national legislation of states are special national law investment guarantees, since they govern legal relationships in the sphere of mutual rights and obligations of foreign investors and recipient states. However, it should be assumed that the most important for foreign investors are guarantees for the protection of property rights and guarantees of removing the property to foreign investors that are special guarantees. National law guarantees for the rights of foreign investors are referred to the obligation of recipient states enshrined in the national legislation of these States and securing protection of property rights of foreign investors.
INTEGRATION LAW
172-179 441
Abstract
The article analyses the evolution of the principle of representative democracy. The author defines the principles of law and classification. On the basis of the views of the scholars of the Western School of law with regard to the principle of representative democracy, the author concludes what the idea of establishing that institution was and what this principle means in the context of modernity.
180-185 412
Abstract
The paper subjects the EU Court reforms to the analysis that reveals them as attempts to solve existing problems of functioning of the judicial system of the European Union. The paper considers the main reasons for putting the reform into practice, as well as the author makes an attempt to review the major opinions of the representatives of the European judicial community with regard to the initiative. The author concludes that it is necessary to refine the reform draft in order to enhance the effectiveness of the judicial institution.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
186-192 609
Abstract
This article draws attention to the legal basis of restricting, suspending and terminating subsoil use rights, as well as to the the practical problems arising from such relations that can be both of rights discharging and rights initiating character for beneficial and perspective subsoil users. The subsoil use of resources is characterized by the fact that the mined minerals and natural resources are usually not classified as renewable resources and the search for new reserves in the worst climatic conditions or in the areas that have not been developed yet is still expensive. One of important elements of the subsoil use is the mechanism of termination of subsoil use that is currently far from being perfect. Difficulties associated with the termination of subsoil use rights are reinforced by the fact that the process of developing legislation on mineral resources in the Russian Federation has not been finished yet. The article considers the issues of two existing but in fact inactive mechanisms that have adverse effects on subsurface users, namely limitation and suspension of the right of subsoil use.
CONFERENCES
193-199 380
Abstract
The paper gives an overview of the Conference "The Fourth Week of the Russian Law” held during the period from May, 31 to June 3, 2016 onwards at the University of Potsdam within the framework of scientific cooperation between the Kutafin Moscow State Law University (MSAL) and the Law Faculty of the University of Potsdam.
200-202 344
Abstract
The report is devoted to a rapid and inclusive process of Cyprus banks resolutions. The mechanism applied is referred to as "bail-in". Its uniqueness lies, inter alia, in the necessity to harmonize foreign and domestic legislation on bank resolution. To that end, the author feels it urgent to explore the problems and perspectives of implementation of this instrument in Russia, and to determine necessary conceptual changes of legislation on bank deposit insurance system and banks resolutions.
203-206 841
Abstract
The article considers the modern legal framework of self-regulation of business and professional activities, draws attention to recent amendments in legislation in this area. The author concludes that the legal regime of self-regulation is to be differentiated into general and special. The author defines concepts, types of self-regulation; legal status, functions of self-regulatory organizations. The paper draws attention to the general minimum requirements for self-regulatory organizations that they must meet, and the possibility to enhance them by laws enacted in separate branches of law. The author identifies her position regarding the interrelation between state regulation and self-regulation of business activity. To sum up, the author concludes that the emergence and development of the legal institution of self-regulation is being aimed at balancing private and public interests of the state and entrepreneurs that is encouraged by the improvement of legislation in this field of public relations.
207-210 560
Abstract
The article deals with the problem of rehabilitation of bankrupt and insolvent debtors and their enterprises in Russia and Germany. In Germany the concept of "rehabilitation" is used in various contexts, inter alia as a "conveying rehabilitation" the content of which is revealed by the author in the article. The author carries out a comparative legal analysis of the legal regulation of rehabilitation of debtors and their enterprises by comparing the objectives of insolvency procedures, the type and content of judicial rehabilitation mechanisms of insolvency proceedings. Special attention is given to Plan verfahren in Germany and judicial rehabilitation mechanisms, namely, financial recovery and receivership in Russia, as well as some ways to restore debtors' solvency.
211-214 399
Abstract
The article describes some of the features of the new to Russian legislation on insolvency (bankruptcy), but known in German law procedure of estate insolvency (Nachlassinsolvenzverfahren). The author carries out a comparative legal examination of the legal regulation of this procedure in Russia and Germany. The author identifies the scope of application of this procedure in Russia and Germany. He concludes that introduction of the estate insolvency proceedings in Russia and Germany pursued different purposes. The author makes analysis of reasons for commencement of estate insolvency proceedings, their legal implications, as well as the problem of identifying a debtor in such proceedings.
215-218 272
Abstract
The article is devoted to the amendments made in 2015 in the Law on Joint Stock Companies and in a number of other laws. For certain categories of large public joint stock companies gender quotas and the obligation to identify target indications for the percentage of women taking managerial positions are set forth. These amendments are to some extent controversial and may be contrary to EU law and the Basic Law of Germany.
219-222 283
Abstract
The main task of a lawyer is to establish an interrelation between life circumstances and legal rules. To develop and acquire necessary skills German legal education focuses on drafting expert opinions. The main purpose is to teach methodology in general through which the lawyer will be able to solve any legal problem. The task of this article is to familiarize the reader with the basic features of this method.
223-226 333
Abstract
The article describes the main provisions of the responsibility of a senior officer under Russian law in comparison with German law. In particular, the author draws attention to the significant role of the Resolution of the Plenum of the Supreme Arbitration Court of the RF "On some issues of recovering damages by members of bodies of a legal entity " No. 62 dated July 30, 2013 in developing the institute of responsibility of governing bodies of legal entities. The article enumerates persons who can be held accountable, as well as persons authorized to resort to court with an appropriate complaint. The author considers circumstances under which a senior office can be held accountable, as well as circumstances under which a senior officer can be discharged of any responsibility. The article also enumerates cases when bad faith and unreasonableness of a senior officer are presumed. To sum up, the author concludes that senior officer responsibility enhances to encourage him or her to act in good faith and reasonably in the interests of a legal entity.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)