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Actual Problems of Russian Law

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Vol 15, No 1 (2020)
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PAGES OF HISTORY

11-23 520
Abstract

The phenomenon of Russskaya Pravda (Russian Justice) has been the subject of numerous studies. However, until now there has not been any exhaustively complete description of the judicial system of Ancient Russia due to scarcity of authentic sources.

An analysis of the provisions of the most well-known copies of Russkaya Pravda (Russian Justice) and available research have resulted in making a number of statements.

The system of justice in Ancient Russia was multisystematic in character and consisted of 4 relatively independent systems: communal, patrimonial, ecclesiastical and princely. The system under consideration had developed as a result of preservation of tribal elements and social stratification, active political genesis and Christianization. The organization of government, including the judicial system, was based on the principle of suzerainty-vassalage, i.e. the persons involved in the administration of justice were servants of the Prince who delegated judicial power to them. The competence of judicial officials was diversified according to the subject matter, territorial and personal criteria. In the system of powers of judicial officials, the powers to charge fees and fines and to impose penalties were the most important. Under Russkaya Pravda (Russian Justice) the system of judicial officials represents a kind of matrix underlying the subsequent institutionalization of judicial bodies.

The complex of powers of officials dealing with pre-trial preparation of cases and enforcement of judgments proves that, despite the unity of the procedure for resolving all types of “grievances,” the law-maker distinguished civil and criminal disputes.

24-35 527
Abstract

The Russian Federation being currently a regional leader in strengthening Eurasian integration, it is necessary to remove contradictions concerning the interpretation of the history of Central Asia’s accedence 1 to the Russian Empire. Thus, it is indisputable that it was the Russian Empire that played a key role in the transition of the peoples of the Central Asian region, on the territory of which there were three major states — Bukhara Emirate, Kokand and Khiva Khanates, to a new level of civilizational, state and legal development.

The paper not only touches upon the reasons, nature of the accession of the Central Asian states to the Russian Empire, but it also carries out a comprehensive analysis of the internal- and foreign-policy situation during the historical period under consideration. The totality of the circumstances makes it possible to answer the following questions: whether the Russian Empire under those conditions had an alternative to armed intervention; whether that intervention was carried out in accordance with the national interests of the peoples of Russia and Central Asia; what changes in the form of governance took place in Central Asian States after they lost political independence.

36-45 536
Abstract
The paper substantiates the relevance of historical experience of the legal regulation in the context of the modern reform of the prosecutor’s work aimed at elimination of obstacles to consideration and resolution of criminal cases with a view to ensure the adoption of a lawful and reasonable decision on the case, which will certainly contribute to the achievement of the objectives of criminal proceedings. The paper investigates the cases of the 19th century when prosecutors returned criminal cases for additional investigation at the pre-trial stage of criminal proceedings. The author has examined the evolution of the goals, objectives and functions of the institution of return of cases by the prosecutor for further investigation in the specified period. The subject of the study amounts to the examination of the institution of additional investigation from the standpoint of its historical genesis. The author focuses on the analysis of the procedure applied to cases returned by the prosecutor for further investigation, the grounds for investigation and ways of correcting the revealed violations. Taking into account the historical experience, the author comes to the conclusion that it is necessary to improve the activity of the prosecutor aimed at eliminating obstacles. The author has formulated and substantiated proposals for modernization of the legal regulation of the procedure under consideration, as the return of the case for additional investigation constitutes a reserve mechanism for achieving the purpose of criminal proceedings that has restorative nature with regard to the legal rights and interests of the participants of criminal proceedings and their compliance with the relevant legal procedure. This procedure is important for making the right decision on the merits. Thus, the purpose of the work is to elucidate the process of formation and functioning of the institution of additional investigation enshrined in the Charter of Criminal Proceedings. To achieve this goal, the basic scientific methods (dialectical method of cognition, method of systematic analysis, deduction and induction, methods of comparisons and analogies, and a number of others) have been used. The main objectives of the study have been achieved on the basis of the comparative legal method. The practical significance of the work is that it justifies the need for legislative unification of legal norms regulating the activities of the prosecutor aimed at removing the obstacles to the consideration and resolution of criminal cases and introduction of appropriate amendments and additions to normative legal acts that would coordinate the procedure for sending cases by the procurator for additional investigation in strict compliance with the fundamental principles of domestic criminal proceedings.

STATE POWER AND LOCAL SELF-GOVERNMENT

46-53 1298
Abstract
Constitutionalists in Russia have disagreed on the possibility of specifying nationality of a citizen in the passport. It is believed that at present the indication of nationality in the passport is not made, but it turns out that this is not the case. Implicit declaration of nationality with the help of a special insert is possible for citizens living in the republics and for native speakers of non-Russian state languages of republics. This state of affairs creates inequality for residents of different types of constituent entities of the Russian Federation and for citizens of different nationalities. Nationality of Russians as a national majority is not expressed in the Russian Federation through the statehood itself and through the institution of citizenship as it is done in foreign countries where nationality is not indicated in the passport. The author substantiates an erroneous stance of the Constitutional Court of the Russian Federation on inadmissibility of specifying nationality of a citizen in his or her passport. It is concluded that it is desirable to restore indication of nationality in the passport for all citizens with the aim of the fullest implementation of the right to nationality in the context of the Russian Federation.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

54-61 471
Abstract
The paper has analyzed approaches to the issue of conclusion of a settlement agreement in administrative cases. The author justifies the possibility of conclusion of the settlement agreement in an administrative dispute. The settlement agreement (a conciliation agreement) serves an evidentiary and compromise function and, in the case of a dispute with the antimonopoly authority, may be resorted to as a means of protecting competition by referring in the text of such agreements to specific acts commission of which or omission to commit which is aimed at securing competition. The paper considers the issue of interrelation between the settlement agreement and the agreement on facts of the case in relation to the evidentiary function of the settlement agreement. There is a tendency to expand the use of the institution of the settlement agreement in order to put an end not only to disputes with antimonopoly authorities, but also to cases contesting cadastral value, tax disputes, as well as cases arising in connection with the change of place and/or time of a public event. It is proposed to use foreign experience with regard to the possibility of conclusion of the settlement agreement in administrative cases initiated due to violations of financial markets legislation and the use of insider information.

FINANCIAL LAW

62-71 1110
Abstract
The paper examines one of the key problems in financial relations, namely: how to ensure the balance between private and public interests as values protected under the Constitution. Taking into account the modern constitutional axiology (Article 2 of the Constitution of the Russian Federation), the principle of priority of public interests, which has already been settled in the doctrine, is subjected to critical analysis. The author concludes that the priority of public interest and its perception as a methodological framework, in fact, does not promote and even impedes the development of relationships in the system “a taxpayer — the State” based on the principles of open cooperation and trust. The priority of one interest over another does not comply with the requirement of their equilibrium. On the basis of the analysis of the practice of constitutional justice, the author concludes that it is necessary to shift the values and rethink the former statist scientific views. The author substantiates an egalitarian approach that takes into account both private and public interests as equally important legal values and provides for dialogue and mutual respect between the taxpayer and the state.
904
Abstract
The article examines one of the key problems in financial relations - ensuring the balance of private and public interests as constitutionally protected values. Taking into account modern constitutional axiology (article 2 of the Constitution of the Russian Federation), the principle of priority of public interests, which has become stable in the doctrinal environment, is subjected to critical analysis. The author comes to the conclusion that the recognition of the priority for the public interest and its perception as a methodological setting, objectively does not contribute to and even prevents the construction of relations in the system of "taxpayer - state" on the principles of open cooperation and trust. The priority of one interest over another does not fit in with their balance. Based on the analysis of the practice of constitutional justice, it is concluded that it is necessary to shift the value orientations and rethink the previous statist scientific views. The author substantiates an egalitarian approach that takes into account both private and public interest as equal legal values, involving dialogue and mutual respect between the taxpayer and the state.

BANKING SYSTEM AND BANKING ACTIVITY

72-80 512
Abstract

The paper is devoted to the analysis of the legal regulation of the institution of paying agents and banking paying agents in Russia, as well as to the assessment of their development prospects.

The first part of the article raises and investigates the issue of the reasons for the existence of different legal regulation of the activities of paying agents and banking paying agents in the Russian Federation. The paper compares general and distinctive features envisaged in the legislation and developed through judicial practice and determines controversial issues requiring solution through improvement of legal provisions in force. In the second part of the paper the author substantiates his view on the prospects of development of the institution of paying agents and banking paying agents, as well as on possible ways of improving the Russian legislation regulating their activities. To sum up, the author makes proposals for changing the existing mechanism of the legal regulation of paying agents and banking paying agents in the Russian Federation.

CIVIL AND FAMILY LAW

81-91 2278
Abstract

The article gives a brief analysis of the place of a cryptocurrency in the system of objects of civil law rights. According to the results of the study, the authors conclude that it is incorrect to equate legal regimes of the cryptocurrency with the legal regime of virtual objects. The authors consider it promising to regulate legal features of the distributed ledger and register objects of civil law rights in the distributed ledger. A cryptocurrency is a means of payment that has no independent value. Thus, the mechanism of performance of obligations needs special elaboration.

It is also noted that in the legal regulation of any social relations an essential role is assigned to the mechanisms and guarantees of restoration of violated rights and legitimate interests. To this end, the cryptocurrency regulation is inextricably linked with the institution of civil liability. The cryptocurrency combines the features of many civil law rights, but does not fully correspond to any of them. The assignment of the cryptocurrency to other property is possible within the framework of the current legislation without creating new objects of civil law rights, which can lead to conflicts and disputes concerning their legal regime.

92-102 1012
Abstract
The paper deals with the legal institution of dissolution of marriage in the context of creating conditions for the marriage preservation. It is concluded that it is necessary to change the procedure of dissolution of marriage in order to ensure the possibility of reconciliation of spouses, for example, to determine the powers of the court to refer the case to a specialist, who performs conciliation (mediator or psychologist), if this procedure is free of charge for spouses. Given the importance of preservation of the family when there are minor children in the family, the possibility of reconciliation must also be extended. The second approach to changing the existing law in the area of marriage dissolution with regard to the grounds, may include the transition to the concept of “divorce/ sanction” (including its flexible application). This approach is widely used in foreign legislation, it has long been traditional for domestic law and is approved in legal consciousness. The third approach may involve the modification of law enforcement practices relating to post-divorce upbringing of children, which indirectly motivates one party to divorce, even though this practice does not correspond either to the law or to social expediency. As a possible option, we recommend the use of the foreign institution of “joint guardianship” adapted in our system of law as determination of the place of residence of the child on a parity basis.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

103-115 1670
Abstract

Based on a comparative analysis of the norms of the procedural legislation of the Russian Federation, the paper discusses certain problems and prospects of legal regulation of the status of persons contributing to the administration of justice: expert, specialist, witness, interpreter, assistant judge, court clerk, as applied to civil proceedings.

The authors analyze modern approaches to the persons contributing to the administration of justice, considering, along with traditional subjects, such a procedural figure as judicial representative in a civil procedure, taking into account the latest changes and additions to the Civil Procedure Code of the Russian Federation, entering into force on September 1, 2019.

Based on a comparative analysis of the provisions of the arbitration and civil procedural laws, the authors of the paper point that the Civil Procedural Code of the Russian Federation lacks a separate chapter on legal regulation of the status of participants in civil proceedings, including those assisting in the administration of justice. This makes it difficult to establish the circle of such entities in practice. In this regard, they propose, by analogy with the Arbitration Procedure Code of the Russian Federation, to fix the circle of participants in the civil procedure in a separate chapter, revealing in detail and specifying the legal status in other articles of the Civil Procedural Code of the Russian Federation of other participants in the civil proceedings.

In the paper, the authors conclude that the judicial representative must be considered as an independent subject of the civil proceedings. Finally, this problematic issue can only be resolved by making appropriate changes and additions to the Civil Procedural Code of the Russian Federation.

It is noted that, despite the absence of special instructions in the Civil Procedural Code of the Russian Federation to other participants in the process, their list is not exhaustive and in fact, the circle of persons involved in the case is much wider. Such persons include court bailiffs and witnesses, whose legal status is currently debatable.

LABOR RELATIONS AND SOCIAL SECURITY

116-123 687
Abstract
The issue of guarantees of the rights of workers during labor standards is of interest, because labor rationing, being a way to increase the efficiency of employees and reduce labor costs, affects their rights and interests. The purpose of this paper is to study the legal regulation of relations on labor standards by analyzing the norms and practices of the application of legislation on labor standards. The author considers guarantees of the rights of workers and concludes that the legislator does not give enough attention to the problems of legal regulation of relations on labor standards. The processes of labor standardization are negatively affected by the absence or incompleteness of normative legal acts on standardization, including the lack of a professional standard for the specialist in question. Guarantees turn out to be declarations, employers abuse rights, neglecting the development of labor standards. Gaps in the legislation, ambiguity of concepts give rise to ambiguous judicial practice. A summary of court practice and related clarifications could resolve contentious issues. The author formulates some suggestions to improve the legal regulation of labor standards.

BUSINESS AND CORPORATE LAW

CRIMINAL PROCEDURE

124-132 577
Abstract
The paper analyzes the provisions of the criminal procedure law determining the grounds and procedures for the application of preventive measures when deciding a sentence. The paper attempts to identify their constitutional and legal meaning. According to the author, the remand of a defendant in custody on the sole basis of the need to execute a real imprisonment sentence is unacceptable. Doctrinal representations of the theory of procedural decisions allow us to conclude that the decision on the measure of restraint cannot be taken simultaneously with the sentence and should not be an integral part of it. Under the current legal regulation, the defense is forced to refuse to express the position on the measure of restraint in the pleadings and the last plea if the position of the defendant is aimed at acquittal. The impossibility for the defense to make an immediate appeal on the formulated in the sentence decision on detention makes the appeal meaningless in general. Uncertainty of the procedure for sending persons sentenced to real imprisonment in all penal institutions but colony-settlements to the place of serving their sentence, for whom the court did not choose detention, reveals a gap in the law. The author claims that these and other defects in the legal regulation listed in the paper contribute to the existence of an accusatory bias in law enforcement practice, since they predetermine the detention decision and must be eliminated. Measures of restraint must be considered immediately after the verdict is sounded in a separate court session at the request of the prosecution or at the initiative of the court.

INTERNATIONAL LAW

133-141 464
Abstract

The state of international security in the modern world directly depends on the security of cyberspace. The authors of the paper explore cybersecurity initiatives, considering their most significant legal and political aspects. The paper contains a scientific and expert assessment of the document adopted on November 12, 2018 the Paris Call for Trust and Security in Cyberspace. Given that Russia leads in initiatives in international formats for discussing cybersecurity issues, the authors of the paper turn to the Russian position on a number of key issues within this framework, indicating that the proposals of the Russian side are ahead of many other international initiatives, in particular in terms of their regulatory potential.

The authors conclude that confidence-building measures between states in the absence of binding international legal norms are deprived of an instrumental role in resolving many security problems in rapidly changing cyberspace. A prerequisite for effective international law-making in the field of information security is a dialogue between lawyers, politicians and technical experts.

INTEGRATION LAW

142-150 430
Abstract

Political relations between Russia and the European Union have changed significantly since 2014. On the one hand, the new political realities are making the current situation in relations, even legally, not as cloudless and full of hope as it was 25 years ago when the Partnership and Cooperation Agreement between Russia and the EU was signed. On the other hand, bilateral agreements between Russia and the EU continue to operate and be applied by the parties in the new conditions of selective interaction between Russia and the EU.

The paper is devoted to the transformation of the fundamentals of legal regulation of relations between Russia and the EU in the context of new political relations, characterized by the formula of "selective interaction" as well as the ongoing Europeanization of Russian judicial practice. The paper discusses the existing bilateral agreements between Russia and the EU, analyzes Russian jurisprudence related to the application of EU law and the use of the precedents of the EU Court. The article also focuses on the Europeanization of the practice of the EAEU Court.

FOREIGN EXPERIENCE

151-160 473
Abstract

The paper is devoted to the comparative legal analysis of the group commission of a crime under Anglo-Saxon criminal law. The commission of a crime in conspiracy has an increased public danger and poses a serious threat to each state and society as a whole. Foreign lawmakers take different approaches to the definition of organized crime, taking into account its heterogeneous nature. The author studies the specificity of the legislative regulation of variations in criminal groupings in common law countries. A comparative analysis of the legislative regulation of organized crime allows us to note the positive experience that can be used to improve domestic criminal law governing forms of conspiracy and law enforcement.

The study notes that the criminal law of the Anglo-Saxon legal family is characterized by a low level of systematization of legislation and increased attention to the norms (decisions) expressed in the judicial precedent. At the same time, the existing criminal law standards governing the institution of conspiracy comply with international law. Some common law countries recognize a conspiracy between two or more persons for committing a crime as an organized crime group. It is important to note that this feature is also a characteristic of domestic criminal law. In accordance with Art. 32 of the Criminal Code of the Russian Federation, a conspiracy is the intentional joint participation of two or more persons in the commission of an intentional crime. At the same time, a significant difference between the criminal law of the Anglo-Saxon legal family is the legislative consolidation of the qualitative and quantitative criteria of group formations (criminal association, organized criminal group, gang) depending on the degree of public danger of their crimes.

LAW ENFORCEMENT

161-167 752
Abstract
The relevance of this topic lies in the fact that there is a demand for scientific interest in organizing the work of state bodies that ensure the legality and protection of citizen’s rights. The prosecution authorities play an important role in the implementation of state functions. In addition, in the course of prosecutors’ activities implementation there has been a violation of the prosecutors’ work functions and organization. The optimization of the work of the prosecution authorities of the Closed Administrative Territorial Unit (ZATO) is of the utmost importance, the level of the implementation of the functions by the prosecution authorities and the results of the work depend on how efficiently the department will be optimized. It seems possible to optimize the work of the ZATO prosecutor’s office through a detailed legal regulation of its activities. The paper discloses the legal and scientific regulation of the activity of the ZATO prosecutor’s bodies, formulates suggestions for improving the current legislation.
168-178 527
Abstract
In the Soviet period of the development of the prosecutorial activity science, individual authors substantiated ideas about legal relations with the participation of the prosecutor, which have not been developed in modern science. The current active development of the science of prosecutorial activity necessitates focusing on such categories as the structure and content of legal relations with the participation of the prosecutor, their research and substantiation of the provisions on which the further study could be based. The paper presents the results of a study of civil and arbitrazh procedural legal relations with the participation of the prosecutor in terms of the subject elements. The conclusion on the determination of the prosecutor (but not the prosecutor’s body) by one of the subjects of the main civil and arbitrazh procedural legal relations is justified. The participants of the indicated procedural legal relations and their roles are determined. Based on the study, it was concluded that the civil and arbitrazh procedural legal relations involving a prosecutor are bilateral.
492
Abstract
In the Soviet period of development of science prosecutorial activities of the individual authors was justified ideas about the legal relations with the participation of the Prosecutor, which have not been developed in modern science. The active development of the science of prosecutorial activity at present makes it necessary to focus on such categories as the structure and content of legal relations with the participation of the Prosecutor, their research and justification of the provisions on which their further study could be based. The article presents the results of the study of civil and arbitration procedural legal relations with the participation of the Prosecutor in the part of the subject composition. The conclusion about definition of the Prosecutor (but not body of Prosecutor's office) by one of subjects of the main civil and arbitration procedural legal relations is proved. Identified participants in the legal process and their role. The study concluded that civil and arbitration procedural legal relations with the participation of the Prosecutor are bilateral.

LEGAL EDUCATION AND SCIENCE

179-188 962
Abstract
The paper attempts to conduct a comprehensive study of legal education as a legal category. Modern scientific approaches to the definition of the concept of legal education are considered, a distinction is made and the relationship between the legal phenomenon under study and related legal categories is determined. The author comes to the unequivocal conclusion that legal education as a legal category has an independent legal significance. Based on the analysis of modern scientific legal literature and current legislation, the author identifies features of legal education that clarify and supplement the existing concepts. Today, legal education is an independent direction of state policy. The measures implemented in the system of legal education act as a kind of tool for the formation of a legal culture and stimulate the active lawful behavior of individuals. The purpose of legal education is to ensure the full legal socialization of a person, and the final expected result is the formation of a high legal culture of society.


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