MAIN ISSUE: EKATERINA I. KOZLOVA ACADEMIC LEGACY
In the paper based on conceptual provisions put forward by Prof. Kozlova, the author sets the objective to identify tendencies that manifest themselves in the development of constitutional and legal institutions at the present stage taking into account the dynamics of the subject of legal regulation, as well as the ongoing transformation of the Russian legal system. In this regard, the author has examined the problem of expanding the field of relations regulated under constitutional law. The author has concluded about the blurring of boundaries between institutions of constitutional law, which entails the problem of attribution of norms to a particular institution. The paper has analyzed the issue of emergence of intersectoral institutions that can be characterized as neither public nor private, as neither substantive nor procedural. This leads to the need to change the very approach to the concept of “institution of law.” It is concluded that constitutional law institutions can contain unwritten legal regulators that can include both rules of natural law and rules of conduct developed directly in the society.
The paper has analyzed the academic heritage of Prof. Ekaterina I. Kozlova in the part of her research of fundamental issues of the theory of constitutional (state) law, namely: the system of the branch under consideration and public law institutions. The author focuses on suggested by Prof. Ekaterina I. Kozlova innovative division of the system of the branch of constitutional law and the structure of the Constitution, the substantive approach to the construction of the institution of state law, consistent defense of the concept of unity of the system of constitutional (state) law. The author has determined the current significance of the conclusions made by Prof. Ekaterina E. Kozlova concerning the development of constitutional law institutions: complication of their structure, expansion and specialization of constitutional law norms and, as a consequence, the emergence of complex institutions and the problem of subsectors; an increase in the number of norms, i.e. principles and procedural rules in constitutional law.
The change of the scientific paradigm in Russian jurisprudence is accompanied by the affirmation of pluralism in a legal science. The paper has highlighted that the modern Russian constitutional theory seeks to express itself in the problems of ontological and axiological foundations, claiming to form an integral ”constitutional philosophy.”
Constitutional axiology represents one of the most significant concepts of constitutionalism. Constitutional axiology is built as a field of scientific reflection (the nature, content, system of constitutional values). From these standpoints, the author provides for the assessment of law-enforcement carried out by the body of constitutional justice. The paper recognizes the high importance of research of constitutional law from the axiological point of view.
The author has concluded that constitutional values as a reflection and expression of the “charter” of the life of the society (“protoconstitutional”) represent objectivated systemic totality functioning as the ultimate goal of constitutional development. Constitutional values represent concepts that must correspond to the social and spiritual environment of the society and the purpose of the State.
The paper critically assesses the concept of a “living constitution” in its Russian interpretation as the constitutional and appraisal activity of the Constitutional Court of the Russian Federation with regard to “generation” of constitutional values. It is noted that the result of the work of the Constitutional Court of the Russian Federation expressed in its legal determinations, can not represent other (“generated” by it) constitutional values except those contained in the Constitution of the Russian Federation. “Transformation” of the content and legal attitudes and meanings of the Constitution, constitutional values without changing the text of the Constitution may lead to “distortions” of the essence of the Constitution and intent for the Constitution to be an act with the highest legal force.
The paper based on the analysis of the provisions of the Constitution of the RSFSR of 1918, the Constitution of the USSR of 1936, the Constitution of the USSR of 1977 shows the basic principles of organization and activity of the Soviets as representative authorities of the Soviet State. The author has analyzed research papers, primarily research papers and studies by Prof. Ekaterina I. Kozlova explaining the main stages and features of evolution of the essence and activity of the Soviets at all levels of the State. Also, the author has examined the shortcomings of the legal status and functioning of domestic representative bodies of state power — the Soviets — during the Soviet period.
The study has demonstrated that with the adoption of the Constitution of Russia in 1993 , the Russian Federation witnessed the development of a fundamentally new, democratic stage of development of representative bodies of state power, as well as local self — government, based on the principles of democracy, separation of powers, federalism, autonomy of local self — government and its representative bodies.
Having analyzed Prof. Kozlova research papers, the author has come to the conclusion that even on the example of her research of one of the most important institutions of the state — representative bodies of state power and local self-government in the Russian Federation — Prof. Kozlova made an outstanding contribution to the development of the science of constitutional law of Russia.
The paper deals with the issues of law-making development in the context of actual ideas of Prof. Ekaterina I. Kozlova with regard to the place of a legislative body in the system of state power, order and the results of its activities, the problems of limits of legislative regulation and the politicization of legislation leading to a decline in the quality of laws. The author substantiates the conclusion that the expansion of legislative regulation creates problems, including conflict-of-laws rules, legal uncertainty, numerous references to regulation carried out through bylaws. Excessive legislative regulation leads to restriction of human rights and freedoms, hinders democratic processes. At the same time, the existence of gaps in the legislative material leads to arbitrary interpretation and unlimited discretion of the enforcement.
Prof. Kozlova’s works have been developed in the modern scientific doctrine of parliamentarism, federal legislative process and legislation, public control.
The paper is devoted to the study of academic views of Prof. Ekaterina I. Kozlova on the problems of essence, content and role of the presidential power in modern Russia. The author substantiates Prof. Kozlova’s opinion concerning: 1) objective conditionality of non-inclusion of the President of the Russian Federation in any branch of the state power; 2) conditional constitutional separation of the power of the President of the Russian Federation from the bodies of traditional branches of state power giving the presidential power an integrative function; 3) the essence of the power of the President of the Russian Federation (presidential power) as the totality of its constitutional representative powers and, in part, powers in the legislature, executive power, and judiciary. Some Prof. Kozlova’s views have been developed in the context of the author’s attitude to Prof. Ekaterina I. Kozlova ideas.
The paper analyzes the academic legacy of Prof. Ekaterina I. Kozlova in the part of her research of fundamental issues of the theory of democracy and various forms of its manifestation and mechanisms of implementation. Over the years of her academic career Ekaterina I. Kozlova researched the evolution of the conceptual foundations of democracy in the Russian Federation, and the will of the people is the quintessence of it. The basic ideas of Prof. Kozlova are manifested in both the modern doctrine of constitutional and municipal law and jurisprudence. The paper investigates the local community as a way of formation and identification of the will of residents of the municipality. The author has elucidated the modern development of ideas of people’s representation in the concept of representative democracy, municipal and public representation and substantiated the idea, structure and content of the public power. The development of the society and scientific and technological progress create new risks, which require new mechanisms and updating of existing ones. With this regard, the author has investigated ideas of modern authors concerning “people’s accusation”.
A Municipal Council has an important role to play in representing the interests of the population at the local level. At the same time in Russia the evolution of the legal status of this institution since the beginning of the 1990s is ambiguous: the capability and activities of representative bodies are limited. The paper, through the prism of the views and ideas of the famous Soviet and Russian constitutionalist Ekaterina I. Kozlova, examines the nature and legal status of representative bodies at the local level based on the principle of their supremacy. The implementation of this principle is also analyzed on the example of foreign models of local government. According to the author, the current weakness of representative bodies in the Russian model of organization of municipal authorities does not meet the requirements of efficiency and does not provide actual representation of interests of local territorial communities. Thus, the author urges to take into account both foreign and historical (Soviet) experience of development of institutions of administration and self-government in the field under consideration.
The paper analyzes the views of Prof. Ekaterina I. Kozlova concerning the lost values of the procedures institutionalizing the Russian Parliament, the risks of inconsistent implementation of mechanisms of recognition of powers of elected deputies of legislatures, peculiarities of procedures under consideration in other countries. The author has determined the mechanisms of ensuring legitimacy of power. The paper provides arguments in favour of preserving legal traditions, customs and rituals to ensure the stability of the constitutional order. The hypothesis has been put forward that constitutional identity and continuity of historical development are covered by the concept of constitutional continuity. It is concluded that the study of the constitutional continuum as a concept reflecting the natural relations between different conditions of the constitutional order can contribute to the ensuring of the legitimacy of the power and finding the best ways of transforming the constitutional and legal system.
The paper systematically analyzes the legislative activity on the development and adoption of municipal legal acts. Such activity is defined as a municipal law-making process. Based on the positions of scientists delimiting the municipal law-making process at the stage, and their corresponding analysis, the optimal number and features of each stage of the law-making process at the municipal level are determined.
As a criterion for distinguishing the stages of the municipal law-making process, the author proposes to use the target criterion, which allows us to identify specific procedures at each stage. It is noted that only after the execution of the procedures of the first stage the conditions for the transition to the implementation of the procedures of the next stage of the municipal law-making process arise.
The author identifies two areas of the law-making process at the municipal level — the referendum process and the law-making activity of local authorities, as well as their features. Given that the population is the main subject of the referendum municipal law-making process, and the implementation of the constitutional right of citizens to hold local referenda is very difficult due to certain legislative restrictions, the author formulates proposals aimed at enhancing the legislative initiative of the population of municipalities.
The paper studies the constitutional and legal nature of the child’s right to safety, which claims to be of constitutional value. Particular attention is given to the study of the doctrinal understanding of constitutional values as the determinants of state-legal phenomena that make up the spiritual and moral basis for the development of society and the state. The author considers child’s safety through the category of personal safety (as a part and the whole), which, in turn, is a criterion of social safety, which implies the protection of the whole spectrum of human values, rights and freedoms, including dignity, legitimate interests, protection of property, etc. Based on the analysis of the norms of the Constitution of the Russian Federation, the author shows that the guarantees of the child’s personality safety are inherent in its text. The author concludes that at the present stage of the Russian statehood development, child safety is a constitutional value built into the overall safety system of an individual, society, and the state, which demonstrates the interdependent nature of the organizational and legal foundations of Russia’s national safety. In author’s opinion, ensuring a child’s safety in the context of constitutional and legal values presupposes the creation of a favorable environment for the life of a child in which it is impossible to infringe on his life and health, the formation of which is ensured by a system of guarantees, i.e. economic, political, social, moral and, legal.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
The paper examines the legal status of participants in disciplinary proceedings, identifies and analyzes the existing points of view on their classification. Having brought together a number of approaches, the author proposes to classify participants in disciplinary proceedings on the following grounds: 1) according to their functional role in production; 2) depending on the obligatory nature of their participation in production; 3) depending on the interest of participants in the disciplinary proceedings in its results. The following is a description of the administrative and procedural status of participants in proceedings in disciplinary cases. The author substantiates proposals for improving the legal status of a civil servant in respect of which disciplinary proceedings are carried out. It is concluded that disciplinary proceedings as a whole are a means of realizing the legitimate interest of its participants. In conclusion, the author expresses the opinion that the current state of legal regulation of the legal status of participants in disciplinary proceedings in the civil service system of the Russian Federation in the context of incomplete reform of the civil service institution is far from being perfect.
CIVIL AND FAMILY LAW
The paper discusses the features of three-dimensional printing and the innovations that it brought to the field of copyright, industrial property rights, in particular industrial design, and means of individualization. The concept and some features of three-dimensional printing technology are disclosed. The author studies the exclusive rights to which results of intellectual activity can be violated when using the technology of three-dimensional printing. It is concluded that exclusive rights to an industrial design, trademarks, and to copyright may be violated. The author investigates the actions that will not constitute a violation of the exclusive right to the considered results of intellectual activity. It is concluded that not every action would constitute a violation of exclusive rights, in particular, this applies to the use of a trademark for purposes not related to the introduction of goods into circulation; use of industrial design for purposes not related to the implementation of entrepreneurial or other income-generating activities.
The paper is devoted to the study of the legal construction of the prohibition of conflicting behavior. The author conducted a comparative study of the legal structures of venire contra factum proprium and estoppel. It is concluded that the indicated legal phenomena differ by their legal nature, although they have a common goal — to protect the rights and interests of the weak party. The paper indicates that the prohibition of conflicting behavior should consider a rule aimed at protecting a bona fide party by refusing to satisfy claims (material aspect) and (or) refusing to satisfy a procedural motion (procedural aspect) if the actions of the party that filed the claim, are aimed at refuting their own pre-trial behavior (material aspect) and (or) behavior in the framework of the trial (procedural aspect). The author highlights elements of the venire contra factum proprium rule, which form the subject of proof when referring to this doctrine, in particular: 1) the contradiction of secondary behavior to the original behavior; 2) the presence of dishonesty in the actions or intentions of a person acting in contradiction; 3) causing or intention to cause damage to the opposite side.
The paper analyzes the current state of development of the concept of the legal regime and its features in the legal literature. It is indicated that the key phrase “regulatory procedure” is not fully consistent with the definition of the legal regime. Wider approaches to understanding the phenomenon of the concept of “legal regime” in the form of a functional characteristic of the operation of law are proposed. It is noted that to describe the features of the legal regime, researchers often and haphazardly use individual qualitative characteristics that do not fully reveal the meaning of the definitions of both the legal regime and its individual attributes. The author clarifies the difference between the characteristics of “special” and “particular”, “specialized” and “specific” in relation to civil legal relations. The conclusion is drawn on the need for legislative consolidation of the revealed differences and the establishment of two types of legal regimes — the legal regime of activity and the legal regime of the operation of an object. Based on the conducted structural study, the author formulates the definitions for the legal regime and civil law regime.
CRIMINAL PROCEDURE
The paper analyzes the legal regulation of detention in custody of persons confined on suspicion of committing a crime, as well as of persons in respect of whom a measure of restriction in the form of remand in custody was chosen. The norms of the Federal Law “On detention in custody of suspects and accused of committing crimes”, as well as the Criminal Procedure Code of the Russian Federation relating to these relations are considered. The differences between the two types of custody are investigated: “detention” and “remand in custody”. The author identifies six fundamental criteria underlying the difference between the two types of custody: the grounds for the detention; a person or body authorized to decide on detention in custody; duration of custody; custodial facility; legal status of persons in custody; grounds for release. It is concluded that it is necessary to revise the Federal Law "On detention in custody of suspects and accused of committing crimes", changing its structure on the basis that the law actually regulates two independent processes: taking into custody when detaining a person and detention in custody when choosing a measure of restriction in the form of remand in custody.
Achieving the aims of criminal proceedings is impossible without coercion, which significantly restricts human rights and freedoms, including constitutional ones, and, therefore, it is permissible only if there are grounds and in the manner prescribed by the criminal procedure legislation. The grounds, conditions and procedure for applying measures of restriction in criminal proceedings largely depend on the correct systematization of criminal procedure legislation, which may be the basis for a systematic interpretation of the text of the law. Combining other measures of procedural coercion in Ch. 14 of the Criminal Procedure Code of the Russian Federation does not have clear criteria, which is fraught with the erroneous use of procedural coercion against participants in criminal proceedings. The purpose of the paper is to assess the directions of possible improvement of the legislation regarding the systematization of procedural coercion measures. Measures of procedural coercion should be structured and systematized in the Criminal Procedure Code of the Russian Federation on clear and uniform grounds, including coercive measures, which are not measures of restriction. Currently, there are no such grounds in relation to other measures of procedural coercion, united in Ch. 14 of the Criminal Procedure Code of the Russian Federation, which impedes their reasonable application. The contents of Ch. 14 of the Criminal Procedure Code of the Russian Federation should be revised taking into account logical and legal ties. As a result of the research the author developed the ideas on logical connections as one of the main bases for the classification of the norms governing the use of procedural coercion, affecting its legality and validity.
ISSN 2782-1862 (Online)