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Actual Problems of Russian Law

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Vol 16, No 4 (2021)
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STATE POWER AND LOCAL SELF-GOVERNMENT

11-22 548
Abstract

The paper is devoted to the implementation of the principles of transparency and accessibility in legal acts regulating the procedure of academic certification in Russia. The authors highlight two characteristic properties of legal principles of accessibility and transparency. The paper examines the manifestation of principles of transparency and accessibility in federal legislation and local regulations of organizations that have the right to award academic degrees independently. The authors have determined local regulations subject to mandatory official publication in order to have the principle of publicity implemented. The paper provides examples of violations of the requirements of the current legislation in local regulations on the issues of independent awarding of academic degrees. The conclusion is made about the need for additional study of local regulation in order to eliminate contradictions and bring it into line with the principles of transparency and accessibility.

23-32 955
Abstract

The paper is devoted to one of the most debatable issues of modern constitutional axiology, namely: the definition of the nature, essence and role of values. The author consistently reveals the significance of the category “value” in a philosophical discourse, in general axiology of law, and in the context of constitutional law. For constitutional axiology, the category of “value” appears as a multifaceted phenomenon, for which there is no common understanding today. The paper provides for differnt ways of solving this difficult task by philosophers of law and constitutionalists, i.e. to give an optimal definition of the category “a constitutional value”. Scholars determinate constitutional values through the categories of “purpose”, “priority”, “principle”, “ideal”, “idea”, “goal”, etc. On the basis of an assessment of existing approaches, the author defines her standing concerning the content of constitutional values and proposes her own definition of this basic category based on the attitude to values of the constitutional order as ideal models of the human, social and state development, acting as criterion used in the implementation and interpretation of the Constitution to achieve balanced constitutional protection of the human being, his rights and freedoms, the foundations of the constitutional order, morality, health, rights and legitimate interests of all members of the society, as well as defence of the country and security of the State.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

33-38 1243
Abstract

The paper is devoted to the issues raised by judges of courts of general jurisdiction in the process of preparation for the consideration of administrative offenses. The author highlights the substantive and formal side of the procedural activity of the judge of the court of general jurisdiction at this stage. The current Code of the Russian Federation on Administrative Offences, unlike other procedural codes, carries out fragmentary legal regulation of this issue. The Code on Administrative Offences of the Russian Federation does not contain provisions on the possibility of appealing against (challenging of) the judge’s determination concerning referral of an administrative offense case to proper jurisdiction. The author, on the basis of constitutional provisions, jurisprudence of the Constitutional Court of the Russian Federation, argues the stance that determinations on the transfer of administrative cases to proper jurisdiction are subject to an independent appeal (challenge). It is proposed to supplement Art. 29.4 of the Administrative Code of the Russian Federation with provisions stipulating an opportunity for interested persons to appeal (to challenge) the determinations concerning referral of administrative offenses to proper jurisdiction.

FINANCIAL LAW

39-46 390
Abstract

The paper is devoted to financial control exercised over the implementation of “megasience” class scientific projects. In order to create an innovative economy, the State continues to develop research and development, in particular the creation of unique projects of the “megasience” class. Funding for such studies is usually carried out from budgets of various levels of the Russian Federation’s budgetary system as part of priority national projects or federal programs. Therefore, state financial control over the effective and targeted use of funds of the budgets of the budget system of the Russian Federation gains importance. The paper discusses the current conditions of state financial control over the implementation of scientific projects of the “megasience” class, defines the list of subjects possessing the powers of both internal and external state financial control, highlights their differences and characteristics. The author carries out the analysis of monitoring as one of the activities of the Accounts Chamber of the Russian Federation, where emphasis is made on budgetary monitoring. The paper analyzes problems and shortcomings in the implementation of state financial control over the scientific projects. It also describes the features of the current state of state financial control and highlights tendencies of its development and improvement.

47-54 515
Abstract

The paper is devoted to analyzing the category of “public expenditure”, its comparative analysis with the category “budget expenditures” in doctrinal understanding and according to the legislative definition. On the basis of relative and absolute data, the author highlights the trend towards an increase of the share of national projects in the overall structure of public expenditure, as well as the trend towards annual increases in direct expenditures from the federal budget. The author concludes that it is necessary to consolidate the thesis on priority financing of national projects in the allocation of budgetary funds at the federal law level. The author analizes the place of allocations for the implementation of national projects in the updated Budget Classification and determines a number of features of budget financing of national projects. The paper elucidates the legal mechanisms of adjustment of national projects financing on the basis of the legislation, highlights the modernization of financial instruments in the field of public procurement, trends in the field of distribution of the inter-budgetary transfers with co-financing. The author highlights the importance of retrospective analysis of information on the performance of budgetary allocations by the key spending units of federal budget funds in the previous fiscal year for the purpose of prospective planning. The conclusion is made about facilitating the integration of the format of national projects into the system of strategic planning with the medium and long-term perspective.

CIVIL AND FAMILY LAW

55-65 1315
Abstract

In recent years digitalization is one of the main drivers of changing the financial field in the world as a whole and in Russia. At first, the phenomenon called "cryptocurrency" (in essence, it is what the economists call "private money") developed beyond state control and was subjected to a very critical attitude on the part of official regulators. However, state and central banks later joined digital experiments. Thus, the phenomenon of the “digital currency of the Central Bank” — Central Bank digital currencies (CBDC) — appeared. The Central Bank saw new opportunities, primarily in terms of abandoning paper (cash) circulation and control, in the new instrument. Many central banks in the world are currently conducting research, and some have reached the level of testing relevant solutions. The Central Bank of the Russian Federation does not stand aside as well: in 2019, the first report was prepared — a study on the prospects of digital currencies of central banks; in 2020 the report “Digital Ruble” was published for public consultation. The introduction of such a financial instrument entails significant changes in the legal field. The paper analyzes such changes as well as the main shortcomings of the Report.

66-75 810
Abstract

The paper is devoted to the analysis and evaluation of the draft law “On Amendments to Certain Legislative Acts of the Russian Federation Regulating Surrogate Motherhood Issues” aimed at improving legislation in the field of assisted reproductive technologies. The authors highlight the provisions of the draft law that deserve support due to their focus on ensuring the interests of the child and substantiate the appropriateness of enshrining provisions under consideration in the rules of Russian law, in particular, provisions consolidating age restrictions for potential parents, the prohibition of commercial mediation in the field of artificial reproduction, etc. At the same time, the provisions that need to be changed in order to balance the interests of all participants in the emerging public relations are identified and substantiated. The authors subject to critical analysis provisions restricting access of single individuals to surrogacy technologies due to their unreasonableness, contradiction to the provisions of the Constitution of the Russian Federation and conceptual approaches to understanding the family, motherhood and childhood.

76-93 1068
Abstract

The paper is devoted to examining objects of civil rights in order to establish whether it is possible to subject them to vindication. The paper analyzes such objects as things, “incorporeal things”, non-cash funds, uncertified securities, intellectual property, shares in the authorized capital of limited liability companies, digital rights, cryptocurrency, etc. The author determines the legal nature of the objects under consideration with due regard to the theory of law and legal stances of courts. As a consequence, the author substantiates the relativity of the possibility or impossibility of their vindication under Art. 301 of the Civil Code of the Russian Federation. Also, the author examines the issues of existence of special mechanisms for protection of rights holders of uncertified securities and shares in the authorized capital of limited liability companies to find the interrelation between them and vindication. The paper provides the analysis of judicial practice on the issue of claiming civil law objects from someone else’s illegal possession. Conclusions are drawn as to which objects can be subject to vindication under Art. 301 of the Civil Code of the Russian Federation, which objects can be claimed by analogy of the law and which objects cannot be subjected to vindication.

94-100 868
Abstract

The paper is devoted to the problem of interpretation of the exclusive right that, contrary to being consolidated as a single category, is formulated differently in relation to different objects of intellectual rights; the powers allocated therein, which constitute (although not exhaustively) its content, also do not coincide in different results of intellectual activity and means of individualization. The use of the teleological interpretation method allows the authors to examine the exclusive right both in the context of the “conflicting right” and the “right to cooperate”, both in statics and in dynamics of legal relations. The purposes for which the exclusive right is normatively formulated are to determine: the rights of a person to his own actions, actions constituting an offense, the subject matter of the contract on granting the right to use the result of intellectual activity and means of individualization. These main objectives may contain additional ones, such as determining the scope of the offence. The normative design of the content of the exclusive right is multilayered and multi-variant, but external contradictions are removed due to teleological interpretation that takes into account the purposes of the legal regulation.

LABOR RELATIONS AND SOCIAL SECURITY

101-119 833
Abstract

The emergence of the concept of cancellation of employment contract in the Labor Code of the Russian Federation followed the development of this concept in the science of labor law in the Soviet period of our history. It was at that time when essential differences were identified between termination of employment contract after the start date and cancellation of employment contract before its practical implementation. The legislator twice adjusted the regulations on cancellation: legal and technical shortcomings were eliminated; the real will of the legislator was clarified. However, even now there is an urgent need to develop Art. 61 of the Labor Code of the Russian Federation. In addition, based on the study of the work of personnel services, judicial practice, scientific literature, teleological interpretation of the studied norms of law, this work provides an answer to a number of previously unconsidered issues, the resolution of which is the subject of discussion. In particular, the following issues were investigated: (1) the issues of the validity of the extension of the rules on cancellation to all cases of concluding employment contracts; (2) problems of normative regulation of provision for compulsory social insurance in the event of an insured event; (3) the documentary registration and procedure for the employer in the process of canceling the employment contract; (4) the consequences of the cancellation of the employment contract in the event of a lawful and unlawful denial of an employee to work; (5) the consequences of the employer’s refusal to cancel the employment contract with the employee. Based on the results of the study and systematization of approaches to understanding the procedure for canceling an employment contract, the author presents his own version of the interpretation of controversial provisions. The author proposes a way to overcome the contradictions between the norms of the analyzed article of the Labor Code of the Russian Federation and the norms of the Federal Law of December 29, 2006 No. 255-FZ "On Compulsory Social Insurance ... " by adjusting the provisions of the Labor Code of the Russian Federation, which regulate the procedure for canceling an employment contract.

CRIMINAL LAW

120-132 679
Abstract

The specifics of the causal relationship between road accidents and the resulting negative consequences (serious harm to health, death of a person) have long remained debatable. Doctrinal approaches to the disclosure of causality in transport crimes seem in some cases too theorized or appear to be fragmentary special cases that are not part of a certain system. This situation is due to objective reasons, a variety of types of transport accidents associated with violation of traffic rules. Violations of security requirements by several persons are of increased interest. The law enforcement officer needs clear and applicable rules for assessing the causality of an accident. The analysis of law enforcement practice made it possible to assess the behavior of road users from the moment the danger occurred until the onset of an emergency, to determine the objective and subjective parameters of traffic that are causally related to the consequences that entail the onset of liability under Art. 264 of the Criminal Code of the Russian Federation. When classifying the act in accordance with this regulatory provision, the analysis shall include not only the actions of the subjects who created a danger to traffic, but also those who have ignored the legal obligation to prevent the occurrence of negative consequences.

CRIMINAL PROCEDURE

133-141 1037
Abstract

The current Criminal Procedure Code of the Russian Federation makes it possible to involve a legal entity as a civil defendant only if, in accordance with the Civil Code of the Russian Federation, it is liable for harm caused by a crime. This prevents the prosecution in all necessary cases, in particular for tax crimes. This is because in the criminal procedure, property damage caused by tax crimes is made up of taxes, fees, insurance premiums, which are not property damage in civil law due to various objects of legal relations. Therefore, they are not subject to compensation in accordance with the Civil Code of the Russian Federation, but are collected in accordance with the procedure RF Tax Code and RF APC. At the same time, legal entities being taxpayers who failed to pay taxes are obliged to compensate for the damage caused by a tax crime, constituting the unpaid amount of taxes, fees, insurance premiums. This is to be fulfilled not in accordance with the Civil Code of the Russian Federation, but in accordance with the Tax Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation. Due to the lack of legal grounds for involving a legal entity in criminal proceedings as a civil defendant, in practice, an individual is often involved in this case. It is against him criminal proceedings are being carried out, which subsequently leads to the cancellation of sentences in terms of imposing civil liability on an ineligible person instead of a taxpayer-organization. The paper substantiates the need to include in the Criminal Procedure Code of the Russian Federation a new basis for involving a legal entity as a civil defendant, namely the existence of an obligation in accordance with the Tax Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation to pay taxes, fees, insurance premiums. This will make it possible to exclude the recovery of property damage for tax crimes from employees of the organization in respect of whom criminal proceedings are being carried out, in the presence of a solvent legal entity-taxpayer.

142-151 1016
Abstract

The purpose of the paper is to conduct a systemic study of the internal structure and functions of criminal procedural activity based on patterns of formation of tree-like hierarchical structures, to determine the goals and objectives of criminal proceedings at different levels of the system hierarchy. Within the framework of the study, the criminal procedure is considered as a system with complex inter-element relationships and its own mutual influence on its structural elements. Based on the distinction between the categories "purpose", "goal", "result", the author concludes that the purpose of the criminal process is to resolve the materials on the merits in the production of the preliminary investigation bodies and the court in accordance with the requirements of criminal procedural law providing for criminal law application. The study establishes the possibility of achieving the goal of the criminal procedure at any stage in the case of the simultaneous fulfillment of two conditions: the identification of objective criminal procedural grounds for the completion of the criminal process using the criminal law and ensuring the implementation of the principles of criminal proceedings. Through the goals and principles of criminal procedural activity, the author defines the objectives and main functions of criminal proceedings, identifies the general goal and objectives of the bodies of inquiry, preliminary investigation and the court. The author concludes that the establishment of objective criminal procedural grounds for the resolution of materials in production with the application of criminal law is ensured because of preliminary verification of the materials, preliminary investigation or the implementation of the functions of the judiciary by solving the tasks facing the bodies of inquiry, investigation and court. The paper establishes the real purpose and goals of criminal prosecution, defense, judicial and departmental control, prosecutorial and judicial supervision.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

152-159 391
Abstract

The paper discusses the issues of using expert opinions, which are ambiguously interpreted in the theory of criminal procedural evidence. Particular attention is given to the study of the circumstances influencing the formation of the expert’s conclusions. It is shown that the existing legal mechanisms do not sufficiently regulate certain issues of forensic expert activity. Analyzing forensic practice, the authors draw attention to the observance of the conditions under which the expert opinion acquires evidentiary value. It was revealed that the irrefutability of expert conclusions is influenced not only by the competence of a forensic expert, but also by the scientific and methodological support of forensic expert activity. The authors criticize the position according to which an expert can involve a specialist when formulating the conclusions of the examination. The paper proposes some ways for improving the comprehensiveness and objectivity of the expert research, ensuring the completeness, as well as the validity and reliability of the conclusions made by the expert. Taking into account the modern achievements of forensic examination, the necessity of applying a unified approach to the training of forensic experts of different specializations, as well as the methodological support of this field of activity, is substantiated.

160-173 1365
Abstract

The paper presents an original analysis of the state of the modern sex industry as the largest shadow segment of the Russian economy. The relevance of the study consists in identifying and describing new criminal marketing schemes to maintain the demand for sexual services, which, among other things, contribute to an increase in the rates of sexual exploitation and serious crimes against the individual. The subject of this research is the sex industry as a social phenomenon; its purpose is to describe new trends in its functioning. Based on foreign and Russian criminological sources, the author developed the sex industry concept, identified its structure, and classified the forms of sexual activity and subjects. The novelty of the study is determined by the fact that for the first time the author gives a criminological characteristic of new directions in the development of the sex industry as an economically significant segment of the shadow market. In this regard, criminological risks of deviant sexual behavior are predicted, the development of which can lead to an outbreak of latent criminal violence, fraudulent activities, etc. Based on predictive estimates, in order to reduce the consequences of the massive use of Internet platforms that facilitate virtual transactions for the sale of virginity, sexual services and child pornography, their creators and administrators should be brought to administrative responsibility. In practical terms, the results of the study include proposals on criminal law criteria for distinguishing between these offenses and the argumentation of qualification decisions.

174-183 500
Abstract

The paper deals with the problems of control over crime in the sea, contradictions and gaps in regulations that determine the procedure for considering reports of crimes, conducting operational-search measures when committing criminal acts outside the Russian Federation. The existing legal regimes in the sea do not take into account the specifics of operational search activities and, therefore, are not applicable for detecting, suppressing and solving crimes, as well as making decisions on received messages and statements. The author formulates recommendations for law enforcement officers, as well as makes proposals for improving international tools and departmental regulations aimed at solving the problem associated with ensuring compliance with the rules of law in the sea. It is important to note that the improvement and expansion of law enforcement capabilities can be achieved through the adoption of effective measures that combine the introduction of relevant provisions into national legislation, as well as international cooperation of many states.

INTERNATIONAL LAW

184-192 649
Abstract

The study contains a step-by-step algorithm for determining the law applicable to private cross-border legal relations. The algorithm is developed based on legislation, law enforcement practice and doctrine. The initial rule of the sequential execution of the stages (steps) of the algorithm is a mechanism in which the determination of the law applicable to the legal relationship at one of the stages excludes the subsequent stages of the algorithm. Public policy interests dictate the rules for determining the law to be applied to private law relations complicated by a foreign element. The establishment by the legislator and law enforcement officer of the closest connection between the interests of conflicting public orders (legal orders) with elements of cross-border legal relations is the basis for the process regulation in the Russian Federation. At the first, second and third stages of the algorithm, the interests of the domestic public order (law and order) dominate. At the fourth stage of the algorithm, public interests in the part not regulated by super imperative norms are correlated with the agreement of the parties on the choice of the applicable law. At the fifth — eighth stages of the algorithm, the law enforcement officer is guided by the rules established by the legislator taking into account the interests of public orders that are conflicting in cross-border legal relations. At the last, ninth stage of the algorithm, the applicable law is established by the judge based on the closest connection between the interests of public order (law and order) with elements of crossborder legal relations.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

193-205 615
Abstract

The subject of this research is the legal problem of identifying the place and significance of forestry law in the Russian legal system. The author analyzes the issues of independence of forestry law as a branch of the legal system in the context of its relationship with other branches of law, primarily with environmental law, as well as with land law and civil law. The subject, method, sources, system and principles of forestry law are investigated. The complexity and multi-structure of forest relations is emphasized. The author draws a conclusion about the interdisciplinary nature of the legal regulation of forest relations by the norms of forestry law, environmental law and related industries, namely land, civil, constitutional and administrative law. The tendency of the formation of international forestry law is revealed.



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