THEORY OF LAW
The article highlights that, in the legal literature, the authors, for obvious reasons, focus mainly on the analysis of the professional side of the life of lawyers. While the non-professional side of their life stays out of the researchers’ attention. Meanwhile, both sides have an impact on each other and interrelate to a certain extent. Thus, the issues associated with the lawyers’ interest to topics covered by the mass media are interesting not only for scientific but also for practical purposes. In this regard, the article presents the results of the author’s sociological study of the professional culture of lawyers. It is shown how the work experience, age and other factors influence the interest of lawyers in the topics covered by the mass media.
The paper substantiates the relevance of the problem of legislative inflation in Russia. The author focuses on the negative consequences of the phenomenon in question: decrease in legal certainty, increase in the number of legislative errors, growth of legal nihilism. The paper provides for the assessment of ways that can be applied to overcome legislative inflation and that can be expressed in the form of systematization of legislation, and the establishment of artificial restrictions imposed on the law-making process. The author concludes that it is necessary to develop legal diagnostics instruments for the effective control of inflationary processes in the Russian legislation. An example of such instruments includes regulatory impact assessment and legal monitoring.
The article discusses the legal and philosophical aspects of the application in the Russian Federation of the principle of increased tolerance of public persons to criticism addressed to them established by the European Court of Human Rights. The author believes that the principle in question contradicts Article 19 of the Constitution of the Russian Federation that guarantees equality of human and civil rights and freedoms regardless of property and official status, membership in public associations, as well as other circumstances. The author has questioned the appropriateness of the introduction of the principle of increased tolerance in Russian law enforcement practice, since it does not contribute to the realization of the “spirit of the law,” while leading to unnecessary accumulation of the law. It is noted that the question of the balance between the right to freedom of expression and opinion and the right to protection of the honour and dignity of the person in the process of criticism of public persons and their activities cannot be settled exhaustively in the legislation as it affects the sphere of morality.
PHILOSOPHY AND ETHICS OF LAW
The article dwells on the causes and objectives of the emergence and evolution of the communicative theory of the society as a theory that allows not only to predict the development of the society, but also to manage social processes. Law enforcement system in general, and in criminal proceedings in particular, had been formed long before the emergence of this theory. But after the society was defined as a type of communication in the theory, the conditions for a truly scientific technologization of criminal proceedings were created: in fact, the whole theory of law was rebuilt in compliance with a new understanding of the phenomenon of sociality. Today, in the age of total digitalization of social and legal and law enforcement practices, the topic of the origins of the communicative theory of the society is actualized in a new way.
The article analyzes the key elements of social and philosophical conceptualization of social processes and phenomena, compares the models of society proposed by O. Comte and K. Marx, whose works described the conditions for the presentation of the society as a reality. The author substantiates the statement that the alternative ways proposed by two theorists to explain social development as a function of “knowledge” or as a derivative of “social production” equally depend on the understanding of a person as a “set of social relations.” Particular attention is paid to the new opportunities opened up to theorists and philosophers in explaining the nature and functions of law in connection with the creation of the communicative theory of society. The article shows a fundamental difference in the understanding of law in the era preceding the development of sociology, and during the active interaction of legal theorists with the community of philosophers and sociologists. The author reconstructs a set of ontological assumptions that allow considering law as “a reproduction of the general conditions of the society existence” and make it possible to include the system of law in the system of social relations as a subsystem.
STATE POWER AND LOCAL SELF-GOVERNMENT
In the current system of public administration in Russia, the most important decisions are taken at the highest state level. A key role in making such decisions belongs to the Head of State — the President of the Russian Federation who, in accordance with the Constitution, determines the main directions regarding development of domestic and foreign policy of Russia. The President holds a special place in the system of public authorities, and he is not directly involved in any of three branches of power. However, he ensures their coordinated functioning and interaction.
Direct implementation of decisions in the field of socio-economic development is exercised by the Government of the Russian Federation — the supreme executive body headed by the Chairman of the Government of the Russian Federation. The choice and appointment of the head of this body of state power is the exclusive prerogative of the Head of State established under the Constitution of the country. In turn, the daily work of the Government is the direct responsibility of the Prime Minister.
A balanced and well-grounded activity of the President with regard to selecting a candidate to take the office of the Prime Minister, who must have a significant degree of confidence of the Head of State, have a successful professional experience, be ready to take such a responsible position, is essential for the successful solution of key objectives in the field of state construction.
The study proposes the author’s periodization of the development of the Russian model of interaction between the President and the Prime Minister of the country, the main recommendations aimed at improving the efficiency in this field of state construction.
Constitutions of the majority of countries of the world contain a detailed catalogue of human and civil rights and freedoms that tends to expand. At the same time, the essence of economic rights is defined in the regulation of the rights of the “second” generation and is associated with the recognition of property rights and the right to carry out activities aimed at obtaining income. In the process of drafting modern constitutions, States only specify the rights in question. The constitutional right to the free use of one’s abilities and property for entrepreneurial and other economic activities not prohibited by law is considered in this article as a basic, but not the only right in the sphere of entrepreneurial activity. A special feature of the implementation of the right under consideration is its special range of holders of the right in question. It is concluded that the construction of Article 34 of the Constitution of the Russian Federation has a two-component structure (denotes two types of activity: entrepreneurial and other economic activities). Such a design determines the definition of the range of holders of the right under consideration: the range of holders of the right depends on whether the issue involves only entrepreneurial or any other economic activities.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
The article analyzes the activities of supervisory authorities in implementing control and supervisory measures in the field of fire safety. The author believes that today the society lives in the conditions of imitation of activity in this important area, which is not related to the real provision of fire safety. One of the circumstances allowing drawing such a conclusion is the transfer of fire safety supervisory functions and control powers to nongovernmental institutions.
Based on the analysis of the mechanisms of fire safety control and supervision — both the state fire supervision bodies under the Ministry of Emergency Situations of Russia and companies providing services for the fire audit — the conclusion is made about inadmissibility of eliminating the State from the principal, active and purposeful work on fire prevention and narrowing the powers of state bodies in this extremely important and, at the same time, very problematic area. The author believes that the neglect of the need to maintain a high level of fire safety, including by legal means, significantly weakens the level of protection of an individual and a society from fires.
FINANCIAL LAW
Educational institutions of higher education (EIHE) in modern conditions are active financial and economic entities. At the same time, taking into account the existing realities, the methods of financial control of these organizations are being improved. The article attempts to analyze auditing as a method of financial control, the goals and main objectives of the audit, the types of audit. The author classifies auditing of educational institutions of higher education in accordance with the audited period of economic activity of an educational organization, techniques and methods depending on the subject of inspection, an organizational method, the degree of coverage of financial and economic activities of educational institutions of higher education or the range of issues of verification of its activities. According to the results of the study, it is concluded that within the financial control of the activities of the EIHEs, auditing is one of the main methods of financial control aimed at assessing the state of financial discipline, determining the reliability of accounting and identifying financial violations associated with the use of budgetary and extra-budgetary funds.
LEGAL REGULATION IN THE INFORMATION SPHERE
Due to the widespread internetization of public relations, the Internet has become one of the most important platforms for the implementation of civil rights and freedoms, including the freedom of expression. However, some users go beyond legitimate exercise of this right causing harm to others by their actions. Cyberbullying is one of the forms of such actions.
The purpose of the article is to draw the line between lawful expression of a negative opinion and cyberbullying while there is no necessary legal regulation in this field in the Russian legislation. To achieve this goal, the authors study the social and legal nature of cyberbullying relying on Russian and foreign experience. The paper highlights two cases of mass cyberbullying that took place in Russia in 2018 and caused a major public outcry.
The authors conclude that the line between cyber-bullying and implementation of the freedom of expression is the deliberate focus of the former on causing moral suffering to the opponent and its unilateral nature. In addition, the paper focuses on the need for self-regulation of citizens on the Internet in order to protect public morality, as well as filling the existing legal gap.17
CIVIL AND FAMILY LAW
The paper provides systematization of inadmissible refusals in civil law enshrined in civil legislation and clarification of court practice. The author analyzes the reasons for fixing the inadmissibility of refusal through civil law cases, which include situations of protection of the weaker party in civil law relations. A specific characteristic of inadmissible refusals according to the way of their expression is proposed: with the presence or absence of legal consequences of inadmissible refusals. The “doctrine of the nullity of refusal” prevailing in modern Russian science and court practice is criticized as contradicting the fundamental principles of civil law (in particular, the principles of freedom of contract, inadmissibility of arbitrary interference in private affairs, etc.) and generally acceptable type of legal regulation peculiar to civil law. Some ways to overcome it are proposed. It is concluded that the resolution of the issue of recognizing a refusal as valid or invalid should be based on the correct qualification of the relevant norms, which fix certain legal opportunities for participants in civil law relations as imperative or dispositive.
LABOR RELATIONS AND SOCIAL SECURITY
The peculiarity of the violation of the right to full and timely payment of wages is that it, as a rule, is violated simultaneously with respect to all of the employees of one employer. It is concluded that the restoration of the rights of individual workers in such cases entails a violation of the principles of equality of opportunity and equal pay for work of equal value. In view of the objective specificity of the right to timely and full payment of wages, it is proposed to recognize the right to protection in the event of its violation in the same way by one employer not only for each worker, but also for the group of workers as a whole. It has been proved that wage collection disputes meet the conditions for classifying disputes as group claims formulated in legal doctrine, foreign practice and draft laws. In this regard, it is proposed to include such disputes in the list of categories of cases that may be considered in the framework of the procedure for protecting the rights of a group of persons. The expediency of recognizing the right to suspend work as self-defense in the event of a wage payment delay of at least one day has been proved. The author analyzes the court practice on consideration of disputes on the recovery of wages paid in a different amount than established by a written labor contract, and reveals the impossibility of protecting the rights of workers to the full payroll. To solve this problem, it is proposed to introduce into labor legislation the rules on recognition simulated conditions of an employment contract for setting wages in a smaller amount than the parties actually agreed as inadmissible.
CRIMINAL LAW
The anti-monopoly practice concerning agreements prohibited by the Federal Law “On Protection of Competition” traditionally defines the so-called collusions at tenders. Depriving the state of the opportunity to save budget funds, collusions at auctions do not only violate the procedure established by the law, but, by limiting competition, adversely affects the country’s economy.
For collusion at an auction, both administrative (Article 14.32 “Conclusion of an agreement restricting competition, the implementation of concerted actions restricting competition, coordination of economic activities” of the Administrative Code of the Russian Federation) and criminal responsibility (Article 178 “Restriction of competition”, as well as Articles 159, 285, 286 of the Criminal Code of the Russian Federation) is set.
However, the current version of Article 178 of the Criminal Code of the Russian Federation, which is supposed to be the main one in the fight against anti-competitive agreements, has significant drawbacks that make the fight against these dangerous anti-competitive agreements ineffective. The damage from the activities of all cartels (in the commodity markets, during the procurements by state-owned companies and the state, during the bidding for the alienation of state property) is estimated at 1.5-2% of GDP.
Meanwhile, when carrying out public procurement and procurement of companies with state participation consume up to 30 trillion rubles a year. If the bidding is held under collusion, the reduction in the initial (maximum) contract price hardly reaches 1%; if the bidding is held in a competitive environment, the price decline reaches 20-30%. Perhaps not so obvious, but this does not mean that the collusion at auctions has a negative effect on competition. Companies compete neither in price nor in quality. Access to the state order, and therefore, an undoubted competitive advantage in the commodity markets, is obtained not by those companies that are better and more efficient, but by those that have been able to come to an agreement. Only in 2016, due to the low level of competition in trading, the budgets of all levels lost more than 180 billion rubles. Moreover, the Federal AntiMonopoly Service (FAS) considers this number underestimated — the application of the methodology adopted in OECD countries brings the figure of damage up to 1 trillion rubles per year.
The current situation requires an appropriate response, in particular, introducing changes into the legislation of the Russian Federation that reflect the substantially increased public danger of anti-competitive agreements and will also contribute to the development of the practice of countering them.
CRIMINAL PROCEDURE
The uncertainty of the procedural status of the Commissioner for the Protection of the Rights of Entrepreneurs for the President of the Russian Federation is substantiated. It is concluded that the Commissioner has a non-procedural effect on the officials conducting pre-trial proceedings. It is recognized that the participation of the Commissioner in criminal proceedings is possible, but his activity must become procedural in nature. To this end, proposals are being formulated for the improvement of regulatory legal acts and law enforcement practice.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
The paper discusses the influence of organized crime on the criminalization of modern Russian society — the so-called self-determination of crime. To effectively counteract the self-determination of crime, a comprehensive study of all its forms and mechanisms is necessary, special emphasis should be placed on organized crime due to its heightened social danger. The proposed approach allows a deeper and more precise study of self-determination of organized crime and related phenomena. Recently, there has been a transformation of domestic organized crime into economic crime, which explains the deep criminalization of the Russian economy. The paper also discusses another form of self-determination of crime that is closely related to organized crime — corruption. The Russian experience in combating organized crime highlights the need to develop an integrated strategy in this area. The results of the study can be applied in the educational process in the study of the Criminology Course in higher educational institutions.
INTERNATIONAL LAW
The paper deals with the problems of legal regulation of relations arising due to a cross-border construction contract. The author substantiates the presence of the characteristics distinguishing a cross-border construction contract from the related private law agreements. Based on the results of the legal doctrine and arbitration practice study the author identifies a number of new features.
The most important aspects disclosed by the author in the paper concern the theoretical and practical aspects of determining the content of the characteristics of a cross-border construction contract, distinguishing it from other private law contracts.
The author makes a conclusion on the formation of new constitutive features of a cross-border construction contract and the possibility of assigning a cross-border construction contract to a separate, independent type of sui generis contracts.
COMPARATIVE LAW
The author examines the need for the formation of the mechanism of criminal law support of investigative activities in the domestic legislation. The question of the relevance and development of this subject in the scientific community is raised, within the framework of the socio-legal conditionality of the potential of this process; a set of evidence on its feasibility is presented. As evidence of the social value of social relations formed on the implementation of investigative activities, the author explains the subjective position about the significance of this institution for the administration of justice. As part of the study, the author identifies two areas of criminal law support: regulatory and protective, their content is explained. The approaches to understanding the means of criminal legal support as measures for the implementation of the proposed directions are formulated. Various approaches of domestic jurists to this issue are given. The author does not characterize the investigated problem as purely theoretical, and does not consider the proposals declarative; the article demonstrates the rules of the model and national legislation of the Commonwealth of Independent States (CIS) countries, designed to implement the mechanism of criminal law support for investigative activities.
Based on the results of the study, it is concluded that:
- There is expediency, perspective and objective necessity of integration of the mechanism of criminal law provision into the criminal legislation of Russia.
- This law-making process should be implemented within the framework of separate regulatory and protective directions through the formation of enforcement rules in the Special Part of the Criminal Law and the design of the elements of a crime in the Special Part, respectively.
- There is a possibility to take into account the positive law-making experience of the post-Soviet states due to the significant similarity of criminal and investigative legislation, legal realities and traditions of the Russian Federation and countries designated in the work.
КОНСТИТУЦИОННОЕ И МУНИЦИПАЛЬНОЕ ПРАВО
The paper discusses the concept and types of criminal procedural functions, analyzes the points of view of legal scholars who at various times formulated the corresponding definition. According to the author, the semantic content set by the legislator is set forth in Art. 5 of the Criminal Procedural Code of the Russian Federation is an important contribution to the improvement of the conceptual apparatus of criminal procedural law; it is intended to ensure uniformity of interpretation of the concepts they designate and, consequently, uniformity of action of the relevant criminal procedure institutions. At the same time, the Criminal Procedural Code of the Russian Federation has no definition of the concept of criminal procedure function. Based on the analysis of the norms of the Criminal Procedural Code of the Russian Federation and the opinions of jurists who expressed opinions on the concept of the criminal procedure function, it is proposed to include an additional clause in Art. 5 of the Criminal Procedural Code of the Russian Federation that would contain this concept in the proposed edition of the author. It is also proposed to divide the criminal procedural functions into two groups in connection with their performance by the participants of the criminal process both at the pre-trial and at the trial stages. The opinion is expressed on the independent nature of the function of assisting criminal proceedings carried out by its other participants, referred to in Ch. 8 of the Criminal Procedural Code of the Russian Federation. The content of the function of supporting public prosecution as a form and stage of criminal prosecution and its place in the system of other criminal procedure functions are analyzed. The author proposes a definition of the concept of public prosecution, which is considered as a necessary element and at the same time as a special form of the function of the prosecution in criminal proceedings. This activity differs significantly in terms of tasks, subject and conditions of execution from the accusatory activities of the investigating officer, investigator, body of inquiry in pre-trial proceedings.
ISSN 2782-1862 (Online)