PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
The article analyzes the fundamental right of participants of the administrative procedure, namely: the right to have an administrative matter considered. The author determines three main components of the right in question: the right to be heard, the right to be notified, the right to familiarize oneself with the administrative matter. The paper shows the dependence of the content of the rights upon different doctrines, the degree of development of legal order and types of procedures. The author concludes that progressive achievements of Western legal systems are, in essence, applied to Russian public law.
The study is devoted to such a specific administrative offense as failure to comply with the legal requirements of a deputy that has no parallel in Soviet administrative law. The subject of the analysis covers the norms of regional legislation. Primarily it covers the Code of Administrative Offences of the city of Moscow 2007 and related provisions of other laws of the city of Moscow. Taking into account interconnected legal norms, the author highlights the object of the administrative offense under consideration, defines the concept of “lawful demands of the deputy,” clarifies the content of other elements of the offence, namely: the objective party [sic] (objective element, actus reus), the subject (the offender), and the subjective party [sic] (state of mind, mens rea). At the same time, a number of statutory flaws are revealed and ways of their correction are proposed. In particular, the author highlights combining two administrative offenses with various direct objects in one part of the article of the Code on Administrative Offences of the City of Moscow, lack of a legal definition of the concept of “legitimate demands of the deputy,” lack of administrative responsibility imposed on sitizens for obstruction of the deputy’s work, excessive lenience of the penalty for violation of time limits given for processing the deputies’ requests in comparison with similar administrative offenses of lower public danger.
STATE POWER AND LOCAL SELF-GOVERNMENT
The article investigates the legislative initiative of judicial authorities at the level of constituent entities of the Russian Federation. Comparing legislative initiative assigned to the courts under the Constitution of the Russian Federation and constitutions (charters) of subjects of the Russian Federation, the author has come to the conclusion that the content of the right to legislative initiative in the vast majority of constituent entities of the Russian Federation is similar to the content thereof in federal legislation. The author investigates various approaches of constituent entities’ law-makers to granting legislative initiative to judicial bodies. The author singles out peculiarities of assigning judicial initiative not only to the judicial bodies at the level of constituent entities of the Russian Federation (constitutional (statutory, charter) courts), but also to federal courts (courts of general jurisdiction and arbitrazh courts). The author distinguishes the concepts of judicial bodies, presidents of courts and courts presidiums as subjects endowed with the right of legislative initiative. Analyzing the variety of wordings regarding the allocation of judicial authorities, their officials and internal structural units, the author concludes that the right to legislative initiative could be possessed only by the court as a whole. According to the author, some constitutions (charters) of constituent entities of the Russian Federation contain obvious contradiction to federal legislation. However, it is still necessary to empower the courts with the right of legislative initiative at the level of constituent entities of the Russian Federation.
FINANCIAL LAW
The article analyzes the principle of transparency of the budget system, which requires a different scope in the context of application of information technologies. The author disputes the elements of this principle fixed in the current version of the Budget Code of the Russian Federation, while other elements in the context of digitalization should undergo an appropriate transformation. Reflections of the authors are based on the study of the current financial legislation, normative legal acts and program documents accompanying the processes of formation of the information society including the area of budgetary technologies. Relevant research has been carried out in the context of studying modern budgetary and legal policy. The paper suggests the conceptual model for possible legislative initiatives, as well as for the theory of budgetary law. In addition, the paper considers the phenomenon of e-governement. The composition of traditionally allocated components of e-government (e-democracy, e-government, e-justice) is proposed to be supplemented with another one, namely: e-budget. Such a proposal has been based on certain budget characteristics. First, this concerns how it implements the functions of the state sovereignty, as well as the functionality of feedback in the performance of the overall tax obligation. From the standpoint of legislative technique, the e-budget can be attributed to the group of legal symbols. Therefore, the paper proposes the characteristics of the e-budget given withen the framework of characteristics developed in the theory of types of legal symbols. As a result, the authors have drawn a conclusion about the transformation of the budgetary legal personality of such participants of absolute budgetary and legal relations as the state (public legal entities) and society (citizens and organization).
The article is devoted to the analysis of financial and legal aspects of insurance supervision. It has been determined that with the development of insurance the extent of state regulation, including supervision of insurance activity, has increased. The paper analyzes prudential insurance supervision and the development of the risk-oriented model of supervision over the largest insurance organizations. According to the results of the research, the author concludes that insurance supervision is an integral part of the effective development of the national insurance market. Insurance supervision is carried out at all stages of activity of the insurance business participants to comply with the statutory requirements concerning insurance and to support effective development of insurance services.
LEGAL REGULATION IN THE INFORMATION SPHERE
The article investigates the main legal aspects of placing communication lines on property objects that do not belong to the communication operator or subscriber. This problem is complex and is one of the main obstacles to the country’s information development. The goal is to find solutions to overcome obstacles to the implementation of the “Digital Economy” national program in terms of building communication networks. The author applies comparative and formal-dogmatic methods as the major methods, and the functional method is applied fragmentally. The paper reviews Russian legislation within the scope of provisions containing norms on networks and lands of communication. The author analyzes and comments on proposals to amend the relevant sections of the Russian legislation. Also, the paper provides for a brief review of some foreign legislative and local acts dealing with the right of way (wiring, laying) for communication lines. The search for solutions to the problem is based on the key domestic scientific works. The results can be used for further research, legislative and educational process.
CIVIL AND FAMILY LAW
The article is devoted to the institution of obligations arising due to causing harm in the light of the reform of civil legislation and established law enforcement practice. On the basis of the effective legislation analysis, analysis of the doctrine and jurisprudence, the author explores the concept of harm. The paper provides for the classification of characteristic cases of causing harm to participants of relations regulated under civil law. It is concluded that the absence of the legal definition of the concept “harm” widely used in the Russian legislation has led to the confusion of the legal categories of “causing harm” and “causing losses” as grounds for tort liability in public sectors of legislation and jurisprudence. The paper contains the author’s classifications of types of harm caused to property. The article reveals the content of the concept of non-property (reputational) harm caused to a legal entity. A comparative study of the concepts of “harm,” “damages,” “losses” has been carried out. It is concluded that tort liability can be imposed if harm rather than losses has been caused. The author explores the issues of application of recovery if losses are caused. The author analyzes the subinstitution — obligations arising due to harm caused by acts of public authority — in the field of public administration and law enforcement. The paper examines conditions for imposing tort liability for harm caused by state bodies and local self-government bodies, as well as their officials, and features of the subject composition of tort obligations. The author draws attention to the civil law nature of legal relations arising as a result of causing harm in the field of criminal proceedings, focuses on features of tort liability for harm caused in the field of criminal proceedings and subject composition of tort liability for causing harm in the field of governmental power. The author proposes to introduce into the effective civil legislation the rule containing the definition of the concept of harm as a generic concept. It is proposed to supplement the institution of liability arising as the result of causing harm with provisions regarding a public law entity whose property may be damaged and the classification of the harm caused to the participants of legal relation regulated under civil law. It is proposed to make a number of changes and additions to the subinstitution — obligations arising as the result of harm caused by the acts of public authority.
The article defines the place and significance of the general meeting of owners of apartment building premises in modern legal science and jurisprudence. The author classifies the issues referred to the jurisdiction of this body on the basis of functional and quantitative criteria. Attention is drawn to the ambiguity of the wording of certain powers of the general meeting, which creates difficulties for their implementation. The author highlights expediency of clarifications made by the Supreme Court concerning the content of powers of the body under consideration to make decisions concerning the limits imposed on the use and improvement of the land plot that is the part of the common property of the owners. The author has detected duplication of the general meeting powers to make decisions on establishment of a capital repair foundation and maintenance of common house property and the initiative-forming body of the homeowners’ association when the non-profit organization manages the premises. The conclusion is made that legislative adjustment of these provisions is necessary in order to eliminate the conflict of powers between the bodies under considerations concrete proposals of legislative nature are given.
LABOR RELATIONS AND SOCIAL SECURITY
The article analyzes the approach applied by the Russian law-makers to define the jurisdiction of law rules regulating a distance job with regard to a certain circle of participants. The author carries out a comparative analysis of the current Russian regulation of the distance job and international concepts in order to answer the question whether it is possible to recognize as distance workers those workers who use modern information and telecommunication networks only to interact with the employer rather than to perform their employment functions. Also, the paper explores the issue of possibility of emergence of the employment relation with regard to the distance job when a written employment contract has not been made.
SPORTS LAW
The paper is devoted to the study of the possibilities of developing conceptual approaches to create a legal definition of the concept of “sports-doping drug”. Foreign court practice is examined in order to identify legal positions that suggest ways to improve the definition of the concept of «sports doping». The author explains that in the field of preventing and eliminating the illegal use of doping in sport, the administrative potential of the current state regulation is exhaustive in the framework of the modern paradigm, it has limitations to improve the efficiency of administrative and restrictive measures. The paper describes a set of regulatory and empirical materials developed by the author to develop a theoretical framework for a homologated (for new challenges and requirements) legal definition of the term “sports doping agents”. The author gives a legal definition of this concept. The legislation of 33 foreign countries became the regulatory basis of the study. The court practice of 16 foreign countries became the empirical basis of the study. Based on the aforementioned regulatory and empirical foundations, using the methods indicated at the beginning of the paper, the author has developed an author’s conceptual and in-depth legal definition of the term “sports doping agents”, which can significantly improve state regulation in this field.
CRIMINAL LAW
The text analysis of Art. 309 of the Criminal Code of the Russian Federation revealed a number of shortcomings in the legislative structure of the component elements of a crime provided for therein. It is concluded that a different degree of danger of bribery and coercion of the participants in the legal proceedings underlying the design of their basic structures (parts 1 and 2 of Art. 309 of the Criminal Code of the Russian Federation) must be sustained in their qualified compositions (part 4 of Art. 309 of the Criminal Code RF). That is, bribery committed by an organized group and coercion committed by an organized group should be provided not in one but in different parts of Art. 309 of the Criminal Code, containing various sanctions. In Art. 309 of the Criminal Code, the use of violence that is not dangerous to life or health is a qualifying element of coercion of participants in legal proceedings (part 3). Consequently, the use of violence dangerous to life or health can only be an element of coercion of these persons. Further differentiation of responsibility is required under Part 2 of Art. 309 of the Criminal Code, since coercion to action is objectively more dangerous than coercion to inaction. Other gaps in the legislative structure of Art. 309 of the Criminal Code of the Russian Federation were identified in the course of a study of the judicial investigative practice of its application. It is concluded that formally forcing the victim to avoid reporting the crime (or bribing him for this purpose) is not tantamount to forcing him to avoid giving testimony, since reporting a crime with the law enforcement authorities cannot be considered a testimony. In this sense, it should be recognized that the disposition of the norm contained in Part 2 of Art. 309 of the Criminal Code, contains a gap that must be addressed by pointing to coercion to avoid reporting a crime.
The paper is devoted to the analysis of the object of the main corpus delicti, provided for by Art. 144 of the Criminal Code of the Russian Federation, which remains debatable. The essence of obstruction of the legitimate professional activities of journalists by forcing them to disseminate or to refuse to disseminate information is examined. A new interpretation of the immediate object of crime is given. The author identifies two immediate objects: the main are the media as a subsystem (structural element) of the political system; additional — personal integrity. According to the author, such a ratio of primary and secondary immediate objects corresponds to theoretical principles, according to which they should cover public relations protected by the norms of various chapters of the Criminal Code of the Russian Federation. As part of a crime under Art. 144 of the Criminal Code, the author identifies the victim as an optional feature of the object and concludes that in the crime in question the effect is not on the information that the journalist is going to distribute, but on himself, since it is he who is forced to commit or refuse to perform certain actions.
CRIMINAL PROCEDURE
The paper is devoted to a comprehensive doctrinal analysis of criminal procedural acts of the preliminary investigation bodies in the general system of legal acts of administration as the most effective legal instruments of public administration. Considering the criminal proceedings in general and the preliminary investigation in particular as a special kind of public administration, and a specific form for the implementation of executive and administrative functions of the state, the authors conclude that the criminal procedure acts of the preliminary investigation bodies are a structural element of a unified system of legal acts of control, forming in it independent subsystem. In this regard, the paper substantiates the position that the legal nature of the criminal procedure acts of the preliminary investigation bodies is in many respects consistent with the general principles and postulates inherent in the legal acts of general government. Their theoretical basis and the corresponding legislative base are subject to consideration, comprehension and development in the context of general methodological laws identified and analyzed in the theory of law and the state and administrative and legal science, but taking into account the specifics due to the separate sphere of criminal procedure regulation, the special purpose of the criminal legal proceedings and the special character of the criminal procedure form and criminal procedure guarantees arising from it.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
The modern features of the formation of judicial investigative and prosecutorial and supervisory practice are analyzed, attention is focused on how the decisions of the highest court exert influence on these processes. The authors analyze the shortcomings of the decisions of the Plenum of the Supreme Court of the Russian Federation dated December 25, 2018 No. 46 “On some issues of judicial practice in cases of crimes against constitutional rights and freedoms of man and citizen (Articles 137, 138, 138.1, 139, 144.1, 145, 145.1 of the Criminal Code of the Russian Federation )» and dated November 29, 2018 No. 41 “On judicial practice in criminal cases concerning violations of labor protection requirements, safety rules during construction or other works, or industrial safety requirements of hazardous production facilities”.
The paper provides an example from expert practice, during which a head image obtained using magnetic resonance imaging (MRI) was used as a sample. It is proposed to include an MRI image in a number of objects and samples considered by the current portrait examination technique. The nature of the suitability of such an object for the production of portrait examination is determined. Practical recommendations are given for working with the appropriate software to get the most visual picture.
COMPARATIVE LAW
In connection with the ongoing global processes of digitalization, labor legislation does not stand still, adapting forms of employment to the changing conditions of building a digital economy. If the legal regulation of domestic labor was carried out in the USSR at the beginning of the 20th century, remote work (especially the work of computer homeworkers) has become an object of regulation in the Russian Federation and the Republic of Belarus only in the 21st century. The paer provides a comparative analysis of the norms of the legislation of the Republic of Belarus and the Russian Federation on domestic labor in order to determine its compliance with international labor standards. The author makes some suggestions for further improvement of labor legislation in this area.
The paper is devoted to the analysis of the limits and the possibility of using international and foreign experience of its organization and functioning in optimizing the institution of public control in the Russian Federation. The author defines the concept of public control in the Russian Federation. The necessity of using international and foreign experience in the organization and functioning of the institution of public control in the process of optimizing this institution of civil society in Russia in the following areas is substantiated: 1) regarding the formulation of the concept of the institution of civil society control over public authority; 2) in terms of its consolidation in regulatory legal acts; 3) by definition of its basic principles, goals and objectives; 4)on consolidation of the list of objects in respect of which control is exercised; 5) on the development and implementation of the main forms and methods of this control; 6) to institutionalize the diversity of its subjects, as well as their authority. In this regard, a number of amendments and additions to the current legislation of the Russian Federation regulating issues of public control are proposed. The author applies a number of methods of scientific research, in particular: historical, comparative legal, and formal logical analysis. This will not only solve modern problems that arise during the organization and functioning of public control in the Russian Federation, but also ensure its full development as a promising civil society institution. The paper proposes a number of changes and additions to the current legislation of Russia, regulating issues of public control. The results can be used both in educational and scientific, and in practical activities, including in lawmaking.
REVIEWS
The paper gives a critical analysis of the scientific project of the chapter on transport crimes, presented by the team of authors — candidates of sciences (law), associate professors of the Saratov State Law Academy R.O. Dolotov, E.V. Kobzeva, K.M. Khutov under the supervision and with the participation of a Dr. of Sci. (Law), Professor of the same academy N.A. Lopashenko — within the framework of the state task (Criminal Code of the Russian Federation (scientific project) / edited by N. A. Lopashenko. Moscow: Yurlitinform, 2019. 320 p. The author of the chapter is R.O. Dolotov). The problems of the system of rules of law on these acts, the criteria for classifying crimes as transport are examined in detail, the legislative technique of the proposed norms is investigated, their significant shortcomings are shown, a general assessment of the doctrinal development of the topic is expressed.
CONFERENCES
The paper contains a scientific reflection of the discussion held at the VI Moscow Legal Forum on the outcomes and prospects of legal regulation of labor and social protection of teaching and academic staff. They touched upon the features of the status of these categories of workers, labor contracts concluded with them, working hours and rest periods, remuneration of labor, guarantees and compensations, labor regulations and labor discipline, the introduction of professional standards and advanced training, violations of labor legislation, ethical and legal liability. Particular attention is given to the need for the interaction of science and practice in improving the legal regulation of labor in the field of scientific research and the educational process.
ISSN 2782-1862 (Online)