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Actual Problems of Russian Law

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No 3 (2016)

ANNIVERSARY OF KUTAFIN MOSCOW STATE LAW UNIVERSITY (MSAL)

11-21 1131
Abstract
Since the very first years of the work of the Department of Criminal Procedure Law, the scholars of ALCI-MLI-MSAL have been engaged in scientific development of issues of the concept, system and content of principles of criminal justice. The works of the professors of the Department are devoted to the analysis of modern principles of criminal justice. Prof. Orlov criticizes the confusion of the purpose of criminal justice and its principle because the purpose means the result that the system aims to achieve, whereas principles are fundamental provisions or means that govern the achievement of purposes. Analyzing the adversarial principle, he defends the active role of the court in the process of collecting and examining evidences, but he objects to providing the defense with the right to conduct "parallel investigation". Prof. Voskobitova points out that the principles of criminal justice must also include the principle of fair trial, the principle of publicity and the principle of access to justice ensured by the state. The adversarial nature of the proceedings does not contradict to the discretion of the court to consider the circumstances of the case due to the new role of the court in modern conditions. The court ensures self-limitation of states in accordance with the law, it controls and deters within the framework of the law government agencies that administer criminal justice. The realm of scientific interests of Prof. Volodina includes the mechanism of ensuring the rights of individuals during criminal proceedings, where principles of due process play a very important role. Prof. Volodina pays a lot of attention to the principles of rule of law, establishing the truth in criminal proceedings, publicity, adversarial nature of criminal proceedings and their interaction. Prof. Maslenikova was the first scholar in the theory of criminal procedure who defined the concepts "public principle", "private principle", "discretionary principle", to disclose their content, to disclose the nature and define the principle of publicity and the principle of the free exercise of substantive and procedural rights by the parties to legal proceedings. It is shown that the content and the balance of public and discretionary principles in criminal proceedings are formed on the basis of constitutional principles applied as the system of values.

PAGES OF HISTORY

22-29 428
Abstract
The article is devoted to the problem of engaging magistrates of Yekaterinburg District of Perm Province at the initial stage of the development of the Soviet judicial system after the October Revolution during the period from October 1917 till May 1918. The article deals with particularities of the formation of the personal staff of the people's courts by using as an example a separate district of Perm Province. The exact localization of the cases at issue is caused by the use of the most recent micro-historical research approaches that allow us to see not only the peculiarities of the local procedures, but also the general context of the events. The article is based on archival documents. Using concrete historical materials, the author demonstrates that in Yekaterinburg District all magistrates had been excluded from the process of people's courts formation by the end of April 1918. By this time all positions of judges had been changed, although the division into judicial districts in general, preserved. Reluctance of the magistrates to cooperate with the new government that was qualified by the Bolshevik leaders as "sabotage", as well as accusation of some magistrates of being involved in counter-revolutionary activities are referred to as the causes of the phenomenon.
30-38 648
Abstract
The article considers the features of the implementation of the judicial reform of 1864 in Vologda Governorate. In Vologda Governorate the Judicial Reform of 1864 was launched in 1873, when in the western part of the governorate the institute of Justices of the Peace was introduced, and soon after in 1874 the Vologda Regional Court was set up. Up to that moment, justice in the territory of the governorate was administered by pre-reform judicial bodies such as Chambers of the Criminal and Civil Courts, district courts, city and town magistrates, city and town halls. In the north-eastern part of the governorate the pre-reform judicial establishments continued their work. The institute of the Justices of the Peace was introduced in that territory only in 1882. The Velikiy Ustyug District Court was set up in 1912. The main features of the implementation of the Judicial Reform of 1862 in Vologda governorate were its asynchronical introduction in different parts of the governorate and the extension of the Reform Implementation. The introduction of the Judicial Reform took 39 years from 1873 till 1912.

THE THEORY AND PHILOSOPHY OF LAW

39-47 681
Abstract
He article is devoted to the peculiarities of the legal institutionalization process in the Russian legal system in historical perspective and at the present stage. The author analyzes the objective and subjective factors that determine the nature of the institutional legal phenomena. Particular attention is given to the criteria for the institutionalization based on the example of political parties.
48-55 470
Abstract
The article analyzes some issues of Russian regulations specifically focused on monitoring of emerging conflicts in the sphere of international relations. Special attention is given to the author's analysis of the conceptual framework and the subject indexes that are to be analyzed by the authorized bodies of executive power of the Russian Federation. It is noted that the concept of ethnic community does not reflect the current state of inter-ethnic reality and has become obsolete as the features of its own territory, language and culture have lost their relevance. The analysis of the subject of monitoring and processes that contribute to the identification of a conflict situation leads to the conclusion that there has been insufficient consideration of indexes and little effectiveness of the proposed model. In conclusion, the author suggests the ways of solving these problems by amending the regulations, in the part relating to the definition of a nation, and conducting a comprehensive analysis of factors affecting the inter-ethnic relations, from the national composition of the region to the presence of abusive language in the printed and electronic media.

STATE POWER AND LOCAL SELF-GOVERNMENT

56-62 930
Abstract
At the present stage, under the conditions of aggravation of geopolitical situation the process of transformation of the institute of citizenship in the Russian Federation is in progress. To this end, it is necessary to overcome negative tendencies in the sphere of legal regulation of this institute. In particular, the author proposes to distinguish the concepts of "dual citizenship" and "second citizenship", which allows differentiating the status of individuals who have Russian citizenship and citizenship of a foreign state with which the Russian Federation has or has not have a relevant treaty. The Author substantiates the necessity to change the approach to defining the concept of a native Russian speaker that is used in the law on citizenship. The analysis of scientific views concerning the criteria of referring an act to a crime and the practice of law enforcement leads to the conclusion that it is inadmissible to introduce the institute of criminal liability imposed for the failure to notify a state public authority of different citizenship or to submit a document that gives right of permanent residence in a foreign country without taking into account its relationship to the state or military service and other specific features.
63-70 775
Abstract
The Article analyzes distinctive features of the foundation and development of the institution of municipal property connected with the fact that, while organizing administration in the municipal systems, there appears to be the problem of setting up an effective mechanism of accounting and using municipal property that is used for the system's effective functioning. After the adoption of the new Constitution of the RF, the local government has become an independent form of the rule of the people, and municipal property plays an important role in organizing local government and in deciding local issues.

FINANCIAL LAW

71-80 626
Abstract
The article considers the issues of foundation and development of Central Banks of Sweden, England, Scotland, France, the USA and Russia. The author analyzes the grounds for the foundation of Central Banks.
81-88 560
Abstract
The article examines the concept of municipal financial control and peculiarities of the legal status of control and audit organs of municipal institutions.

CIVIL AND FAMILY LAW

89-99 904
Abstract
The article examines the legal status of public-law entities as participants of civil-law relations. The author provides a historical analysis of changes in perception of the legal status of these entities. The article considers the nature and characteristics of the legal capacity of public-law entities. The author also justifies the necessity to revise the concept of the legal status of public-law entities as participants of civil-law relations.

LABOR RELATIONS AND SOCIAL SECURITY

100-108 1034
Abstract
The article considers problem questions of protection from discrimination at work from the perspective of the compliance of Russian legislation and judicial practice with international employment standards. The authors conclude that it is necessary to mitigate the burden of proof, to tighten liability for discrimination and to enact norms providing for the employers' liability for persecuting employees bringing complaints against employers.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

109-115 622
Abstract
The Article analyzes changes made in legal regulation of the seizure of land plots for state and municipal needs under the Federal Law of 31.12.2014 № 499-FZ "On Amendments to the Land Code of the Russian Federation and Certain Legislative Acts of the Russian Federation". Particular attention is paid to the innovations concerning the power of the competent public authority to decide to seize a land plot for state and municipal needs at the request of the public authority, and the extension of the number of individuals entitled to compensation in the event of the seizure of their property.
116-122 607
Abstract
State cadastral registration of land plots and registration of land titles have been subject to independent land management until recently. The subject of the research paper is first introduced at the legislative level registration procedure as provided for by the federal law "On state registration of real estate" of 07/13/2015 Federal Law No 218. The rules of the Federal Law are aimed at improving the quality of public services in the area of land property relations, the acceleration of services, as well as improving the efficiency of the economic turnover of immovable property, including land. The article analyzes both positive and negative innovations in the sphere of state cadastral registration of land and registration of title in the context of a single accounting and registration function. Also, the attention is given to the possibility of using the Unified State Registry of real estate for the purpose of effective land management.

CRIMINAL LAW

123-129 1045
Abstract
The article is devoted to the criminal law rule on the responsibility for organizing an extremist community (Article 282.1 of the Criminal Code of the Russian Federation). The author examines the legal nature of the rule, its relationship with the institution of complicity in a crime. The author also considers different approaches existing in the science of criminal law to the problem of the object of the crime of organizing an extremist community. On the basis of the analysis of the norms of the Constitution of the Russian Federation and of the judicial practice (convictions in criminal cases) the author has provided his own definition of the concept of the primary direct object of an extremist community. The author has analyzed the criminal law significance of this object for legislative and law enforcement activities, as well as for the qualification of crimes. The author has revealed the correlation between the legal terms "extremism" and "terrorism". He also examined the problem of collision of the rules of Articles 205.4, 210 and 282.1 of the Criminal Code of the Russian Federation concerning a terrorist community, a criminal association (criminal organization) and an extremist community, identified possible types of such collision, and made suggestions concerning the ways of resolving such collision problems.
130-135 740
Abstract
The article is devoted to criminal liability for euthanasia. By analyzing the international experience and the current Russian legislation, the author comes to the conclusion that it is necessary to legalize voluntary euthanasia for adult citizens in the Russian Federation. The regulation of the procedure of euthanasia at the legislative level and the establishment of criminal liability for the violation of the procedure of euthanasia turn out to be reasonable. The author gives his own understanding of this procedure and provides a draft article of the Criminal code.

CRIMINAL PROCEDURE

136-142 931
Abstract
This article is devoted to the study of issues of rights and legitimate interests of persons with mental disorders in the course of criminal proceedings in the context of international fair trial standards, the central of which is the case law of the ECHR. The relevance of this topic is due to a considerable number of ECHR judgments in which the ascertained violations of the rights of this category of subjects of criminal proceedings for judicial protection, a fair trial, as well as qualified medical assistance. At the present stage it is necessary to consider the compliance of legal position of higher courts in Russia and modern forms of enforcement practice with the specified legal standards of the ECHR. The article analyzes the patterns of evolution of legal regulation of criminal procedure status of persons with mental disorders, describes the content of the latest decisions of the ECHR and the Supreme Court on these matters, and identifies current trends in the Russian judicial practice. Considerable attention is given to the identification of problematic areas of legal regulation of procedure on application of compulsory medical measures and to the formulation of proposals de lege ferenda aimed at improving the provisions of the Criminal Procedural Code, the harmonization of its provisions with the acts of the ECHR on the basis of the balance of public and private interests.
143-151 614
Abstract
The main problem of the article is the need for proper solution of the issue of punishment in a criminal case, which is considered in two aspects - theoretical and practical. The theoretical aspect is aimed at establishing the nature of activity to determine the punishment, namely, whether it is a cognitive activity, and if so, whether it is limited to the knowledge of establishment of evidence. Adjoining to the common position of those authors who recognize the cognitive character of this activity, we defended the position that the establishment of evidence, despite its importance, does not exhaust the learning process in a criminal case. In particular, this is demonstrated in the context of the study of the personality of the accused on the basis of Art. 73 of the Criminal Procedural Code, as well as based on the possibility of the court and the investigating officer directly perceive the traits of the accused person. Subsequently, the above theoretical principles are used to solve the practical aspects of the problem which concerns extremely and permanently low quality of a sentence in terms of the disclosure of matters of the punishment. In support of this position, the author provides the viewpoints of the scientists, empirical data, including the results of the questioning of persons serving a real imprisonment sentence, the decisions of the High Courts. As a possible solution to the problem the author proposes, on the one hand, to review the validity of such stringent requirements of procedural form in matters of punishment, and on the other, the separation of the processes on rendering a decision concerning guilt and punishment by a court. To confirm the reasonableness of these approaches the experience of foreign countries (the United States), the pre-revolutionary national legislation, as well as the position of individual scientists are provided.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

152-160 935
Abstract
The article analyzes the concept of modelling in criminalistics. According to many scientists, the concept of "modelling" covers three stages which can be referred to as construction, study and further usage of the model. There is also a viewpoint that accentuates only two stages - construction and usage of the model. Other definitions of modelling point out direct study of the model without mentioning its construction and usage. There are standpoints which also include professional activities management in the process of modelling. From our point of view, the process of modelling can be considered as testing; the study of the model is one of the stages of its usage; and professional activities management should be left outside the main objectives of modelling. Thus, in our opinion, the concept of "modelling" should include the construction of the model and its usage during the investigation process. There are also different points of view on whether forensic modelling is a method or a process. We believe that when modelling an unknown criminal personality we deal with a process - accurate and sensible structuring of information received by means of various forensic methods in order to make it more convenient for using this data and comparing it with people who may be involved in committing the crime. Therefore, we suggest the modelling of an unknown criminal personality be understood as a process of unifying all relevant to forensic study data on his features and characteristics, which is gathered in the course of study of ideal and real traces of a crime and its usage in investigation process. The scientists argue whether to keep considering a forensic model just an artificially created system of features and characteristics, or to include already existent systems of information. The article suggests the following definition: a model of an unknown criminal is a unified data on his features and characteristics created on the base of forensic findings which are gathered in the course of study of the traces of the crime.
161-167 556
Abstract
The article considers the current state, structure, and dynamics of the spread of youth extremism in the Russian Federation. The authors analyze the classical Russian criminology and philosophy works on the issue in question and define some classical approaches to crime prevention. The problems and approaches to the definition of extremism as a socio-legal phenomenon were studied through general scientific methods and scientific cycle; however, the authors propose a number of their own legal definitions within the analyzed problems. The results reflected in the article showed that the general social prevention of extremism among youth in Russia as a whole and in a given region in particular should be consistent, multi-character and facilitate inter-subjective interaction of all the institutions of the society. The study enabled the authors to develop a series of proposals for the prevention of extremism among youth in the framework of its general social component.

LAW ENFORCEMENT

168-174 555
Abstract
The article investigates the issues of admissibility of the repeated reversals of the procedural orders to dismiss criminal complaint. The article reveals shortcomings of timing for verification of reports about a crime, taking into account the need to establish additional terms in case of the verification reopening. The necessity of improving the powers of the public prosecutor, granting him the right to initiate criminal proceedings due to the reversal of the order to dismiss criminal complaint (following the deadline for verification of the report of a crime).

INTERNATIONAL LAW

175-185 969
Abstract
The article is devoted to legal protection under international law. International judicial protection is considered as an industry model, implemented within the framework of common law model of international integration. Based on the analysis of scientific doctrine and international criminal jurisdiction the author considers the right to judicial protection in the framework of two types of justice: rehabilitative justice model and restorative justice model. These two alternative models in the framework of international criminal justice are personified. They are directed (apart from the entire criminal justice system) not only to protection of public interest and to insurance of the rights of specific individuals, victims of crime, or vice versa held liable for the commission of crimes. International judicial protection in the field of criminal justice include the following components: institutional aspect; Criminal procedure aspect; the substantive aspect. The author concludes that the implementation of international judicial protection is only possible if the relevant and necessary conditions are created. One of these conditions is the right to judicial protection. This right is the primary element of the mechanism of legal regulation of the international judicial protection which is reflected in the norms of international law. The methods of research: general methods of knowledge (dialectical method); general scientific tools (comparative legal method, structural-functional method, a systematic method, the formal-logical studies, the method of theoretical analysis and synthesis of various literature sources, the method of summarizing the information received and the materials, conclusions); private-scientific means (comparative study method, historical method) and a specific legal means (formal-legal method, the methods of comparative law, the interpretation of law, generalization of judicial practice). The author compares various international legal norms guaranteeing the right to judicial protection.
186-191 633
Abstract
The article deals with the process of fight of the international community against such international crimes as slavery and slave trade, analyzes international legal instruments aimed at the prevention of these crimes, and considers contemporary forms of slavery.
192-197 466
Abstract
Procurements with or without state participation are of single essence, but the first are regulated by civil law in most countries, while the latter lack such regulation. The regulation of procurement in Private International Law creates a particular scientific interest since the nature of business practices of transnational corporations has become increasingly complex; and international tenders organized by transnational corporations to meet the needs of its subsidiaries in different countries do not have relevant regulation. Thus, one of the challenges is to determine the law applicable to the parties in the international tender. For example, the order of seeking remedies is questionable when neither the actual executor under the contract, nor his other side acting through one of the divisions of TNC take a direct part in the international tender, which was organized by the "headquarters" of the TNC and following which the aforementioned contract was signed. This resulted in a dispute on violations of the conditions agreed in the tender. Meanwhile, in the course of an international tender abusive practices, including restricting free competition not only nationally, but also regionally, are possible to occur. In the article, which is a part of the dissertation research, the author analyzes the key concepts of the topic and proposes recommendations to eliminate gaps in the Private International Law regarding the regulation of procurement with a foreign element. The author's suggestions can be used to improve the existing Civil Law of the Russian Federation, further scientific studies within the framework of private international law, including a comprehensive analysis of the development and regulatory activities of TNCs in the world.

COMPARATIVE LAW

198-206 475
Abstract
The main task of the work is the study of competence, the role and importance of parliaments and other bodies executing the functions of the legislative body of the country on ensuring the defense support of the state. The author identifies the factors affecting the scope of powers of parliaments in this field, as well as the nature of interaction with other legislative bodies of state power (president, government). The article analyzes the features of regulation of parliaments' statuses in the field of national defense support within the States of different regions (the European Union, Commonwealth of Independent States, the States of the Arab East). The emphasis is laid on the bodies of legislative power by virtue of their representative character, and the possibility of adoption of acts, which are essential for defense support of the country. Parliaments often have the power to address issues of war and peace, the use of armed forces outside the country, ratification of international treaties, including the sphere of military cooperation that determines the relevance of the issues in question.

CRITICAL REVIEW

207-214 531
Abstract
The review analyzes the doctoral thesis by N.V. Dzhagaryan. The thesis is devoted to the problems of municipal representation in the Russian state system, it emphasizes the importance and relevance of this topic for the science of constitutional and municipal law. The reviewer notes the most important conclusions and recommendations of the author, aimed at improving the legal regulation and practice of realization of the municipal offices, as well as some of the controversial aspects of the work.


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