№ 2 / 2018

PUBLIC ISSUES AND POLITICAL SCIENCE

Alebastrova I. A. (Moscow) The public control over public authority in Russia: growing pains or a development delay?

The article proves the significance of an active, permanent and comprehensive public control as an institution of the political participation. Analyzing a number of current constitutional and legislative amendments the author resumed that the transparency of legislative activity as well as the control by civil society over the government are not sufficient in Russia. The author proposes to improve the legal regulation in order to introduce an effective complex mechanism for boosting the public control over law-making. In particular, the author offers to adopt the federal law on the parliament hearings, which would stipulate the necessary participation of the professional community members in the parliamentary hearings who will give conclusions on the amendments to the Constitution, federal constitutional laws and a number of federal laws. The author also criticizes the Federal Law «On the foundations of the public control in the Russian Federation», which doesn’t provide for the opportunity of direct influence and control over the government by individuals. The author proposes to admit the right of groups of citizens and competent or involved non-profit organizations to initiate the procedure of public control. The article investigates a number of by-laws designed to increase the public activity and control over the government; some proposals on their improvement are made.

Key words: public control, civil society, political participation, public debate over bills, active citizen, direct democracy, participatory democracy, parliamentary hearings

Selikhov N. V. (Moscow) Organization of supreme authority in Russia: theoretical and practical issues

Considering the theoretical aspects of popular sovereignty the article examines the peculiarities of the constitutional rule of democracy in contemporary Russia, and actualizes the need of further researches in this field based on the theory of state and native state law.

Key words: supreme authority, people, popular power, popular sovereignty, state authority

INTERNATIONAL LAW

Mirzayev F. S. (London, United Kingdom) European experience of uti possidetis: the Åland islands dispute

Uti possidetis originating from Roman jus civile was developed into the principle of interstate relations in Latin America. In 19th century it was associated with transformation of the administrative boundaries of former colonies into the international boundaries of newly created independent states. However, this principle has barely been implemented in other continents including Europe. The author argues that uti possidetis governing the state territory or territorial sovereignty matters was also effectively applied for resolution of the Åland islands dispute between Finland and Sweden. The article analyzes the position and opinions of the League of Nation’s specialised commissions which dealt with this dispute. A special attention is paid to the role of this principle as a supportive instrument for the principles of territorial integrity and stability of boundaries as well as to its correlation with the right of peoples to self-determination.

Key words: uti possidetis, Åland islands, territorial dispute between Finland and Sweden, League of Nations, self-determination of peoples

Popova A. N. (Moscow) The informal mechanisms for consideration disputes between international organizations and their servants

The article analyzes the informal mechanisms for consideration of disputes between international organizations and their servants, which haven’t been comprehensively researched by Russian scholars in the field of international law. The author wants to know whether these mechanisms are effective and capable to render the real protection of international servants’ rights. The research reveals that despite all positive advantages of the informal mechanisms for consideration of disputes between international organizations and their servants and a high level of their demand among international employees, in certain cases there is a lack of efficiency of these mechanisms, and this requires the international organizations to pay attention to the problems of their functioning.

Key words: international organizations, international servants, informal mechanisms, ombudsman, mediation, respectful workplace advisors, ethics organ

COMPARATIVE JURISPRUDENCE

Vasilevskaya L. Yu. (Moscow) Damages in Russian and Anglo-American law: differences between conceptual approaches

The article is devoted to the study of various conceptual approaches to the regulation of damages in Russian and Anglo-American law. The purpose of the study is to analyze comprehensively the institution of compensation for damages, to consider the specifics of its regulation, to identify the main problems of judicial practice related to compensation for damages. To achieve this goal the author studies the positions of English courts on this issue, analyzes the reasons for civil liability in the form of compensation for property damage, identifies common and special features in legal regulation of compensation for damage in England, the United States and Russia. Besides that, the article considers different types of breach of obligations and the corresponding forms of compensation for damage. It is concluded that in England and the United States compensation for damages is the main form of civil liability, and specific performance is considered as an exclusive remedy, applied at the discretion of the court in certain cases. The article also deals with the conditions of civil liability in in Russian and Anglo-American law, and concludes that these two approaches to assess the basic concepts of damages are objectively incompatible.

Key words: obligation, breach of obligation, creditor, debtor, liability, damages

Maskaev S. D. (Moscow) To the issue of a multiple employer (the experience of New Zealand)

The article analyzes New Zealand regulatory and legal acts, as well as key court decisions which prove the possibility of recognizing an actual employment relationship with third persons who performs the employer’s functions in relation to an employee, and introduce the criteria for defining the nature of such relationship. Based on the analysis carried out, the author proposes some measures to improve Russian labor laws concerning a multiple employer.

Key words: employment legislation, triangular labour relation, real employer, court case, New Zealand

CRIMINAL LAW AND PROCEDURE

Barabash A. S. (Krasnoyarsk) The place and role of a principle in the Russian public criminal procedure

The author shows that a principle of Russian public criminal procedure is essentially associated with criminal procedural activity, but its place and role in this activity have not been fully recognized yet. It is stated that a principle of criminal procedure is related to a method of the objective investigation of circumstances of a criminal case which requires the comprehensiveness and completeness of study. The correlation of a method and principles of criminal procedure is considered. Upon this basis the author determines the place and role of a principle in the criminal procedural activity, which could be organized more correctly now.

Key words: principle of criminal process, activity approach, correlation of a method and principles

CIVIL LAW AND PROCEDURE

Gruzdev V. V. (Novosibirsk) The subject of civil law and personal non-property relations

There is an analysis of so called personal non-property relations, which are usually included in the subject of civil law. It is proved that the result of intellectual activity is an economic benefit. That is why the relations concerning its ownership (including the authorship relations), which create prerequisites for civil turnover and, for this reason, require civil regulation, also has an economic essence and should be declared property. And such a phenomenon as «personal non-property relations not connected with property relations» is in one plane with the method, not the subject of legal regulation.

Key words: subject of civil law, personal relations, intellectual property, personal rights and freedoms, method of civil law

Popondopulo V. F. (Saint-Petersburg) Private international law: the nature and development trends

The article discusses the debating issues regarding the concept and nature of private international law. The author aims to prove that private international law is a part of private law and to show the contradictions of modern trends in its development. In the light of this he gives a definition of private international law as a set of general and special rules of private law governing property and personal non-property relations with a foreign element, which are based on equality, autonomy of will and property independence of their members. In this regard, the author examines the nature of following branches of law: international commercial law, international family law, international labour law and international civil procedure. It is stated that the development of private international law is highly influenced by the legal regime of international relations, which depends on the state (national) policies and ranges between liberalization and state protectionism. In the author’s opinion, there is a leading trend to economic liberalization limited by certain government regulation which reflects the state international policy.

Key words: international private law, private relations, public relations, international relations

Ul’bashev A. Kh. (New Haven, United States of America) To the issue of inalienability and non-transferability of personal rights

The criterion of inalienability and non-transferability of intangible goods is analyzed in this article. On the example of goodwill in Russian and foreign law it is shown that although intangible goods are inalienable, nevertheless in some cases exercising of personal rights is possible by indirect means, in particular by a representative. In conclusion, it is said that the legislation could provide the objective opportunities for the indirect realization of personal rights without their splitting or transferring.

Key words: personal rights, intangible goods, goodwill, child rights, representation

Kuzina M. I. (Moscow) On the possibility of signing a loan agreement by commercial organizations

The article analyzes the essence of a donation agreement and the reasons for the rules on prohibition of donation by using the teleological method of legal interpretation. Taking into account the existing judicial practice the author tries to find out whether it is valid to apply the provisions on prohibition of donation to a loan agreement. The permissibility of a loan agreement in relations between commercial organizations is proved through the systemic method of interpretation of law. To prove it, the author gives examples of the judiciary acts and refers to legal literature.

Key words: loan agreement, commercial organizations, grant agreements, donation agreement, prohibition of donation

ADMINISTRATIVE LAW AND PROCEDURE

Stakhov A. I. (Moscow) Functional spheres of administrative legal relations in the Russian Federation

The author underlines inability of the doctrine of the Soviet administrative law to reveal fully the features of modern system of administrative legal relations. In this regard, the author refers to the instrumental approach which helps to isolate administrative regulatory and protective activities of the Russian state; in their structure there are functional spheres of administrative legal relations, mandatory participants of which are the executive bodies, local self-government bodies, organizations that have the status of a state or another body (all of them are endowed with state (administrative-public) powers). In general, the mentioned bodies and organizations could be regarded as administrative and public bodies, and the sphere of administrative legal relations with direct participation of these bodies – as a sphere of public administration. In the sphere of public interaction between citizens and organizations there are the administrative legal relations between individuals and (or) organizations existing without the direct participation of administrative and public bodies, but under their control.

Key words: Soviet Constitution, Constitution of the Russian Federation, public administration bodies, executive bodies, local self-government bodies, administrative and public bodies, administrative legal relations, administrative and legal regulation

Polyakov S. B. (Perm) The evidence base in cases concerning the reasonability of trial time

The Federal Law of April 30, 2010 № 68-ФЗ «On compensation for violation of the right to a trial within a reasonable time or the right to enforcement of a judgment within a reasonable time» and the Chapter 26 of the Administrative Court Proceedings Code of the Russian Federation have significant drawbacks concerning the determination of a certain sum of facts, which should lead to the possibility of getting the compensation, and the determination of a certain list of necessary evidences. As a result the execution of mentioned laws doesn’t provide the declared aims, but instead binds the legal cases with the red tape. It is also emphasized that the courts use such appraisal concepts as «legal and factual complexity of the case», «effectiveness of the actions of court and investigator» without respect to the trial aims and the necessary circumstances of a case as well as to the doctrinal legal principle of effectiveness. The article also shows that the courts evade the scrutinizing of actions or non-actions of an investigator and a court. The article proposes to change the existing legal norms and the official interpretative acts in order to eliminate the identified drawbacks and to protect the right to a trial within a reasonable time.

Key words: reasonability, effectiveness, aim, sum of necessary facts, validity

PROCURACY SUPERVISION

Britanov A. I. (Yekaterinburg) Delineation of the competence of territorial and military prosecutors in observing the citizens’ rights and freedoms

The author investigates the problems of delineating the competence of territorial and military prosecutors in observing the citizens’ rights and freedoms in the context of countering terrorism and extremism. There is a list of possible violations of law by law enforcement officers in conducting operative and military and investigative actions. The necessity of amending the current legislation and normative acts of the General Prosecutor of the Russian Federation is substantiated.

procuracy supervision, violation of law, competence, counter-terrorist operation, rights and freedoms of citizens

LABOUR AND SOCIAL LAW

Korsakov K. V. (Yekaterinburg) Social, criminological and legal aspects of the external labour migration in the Sverdlovsk region

The article studies some social, criminological and legal issues concerning the continuing labour migration to the Sverdlovsk region under conditions of the severe workers shortage, economic sanctions, the worsening crime situation and the ongoing demographic decline. The author highlights the upcoming ways of reducing the illegal labour migration, of supporting and developing the legal labour activities of migrant workers as well as of their successful social inclusion, acculturation and integration into the host society. He introduces and substantiates his conclusions and proposals by taking into account the specifics of a migration situation in the Sverdlovsk region and the socio-demographic and industrial-economic peculiarities of this subject of the Russian Federation.

Key words: labour migration, migrant workers, illegal migration, socialization and adaptation of migrant, regional migration policy

ECONOMICS AND LAW

Chermyaninov D. V. (Yekaterinburg) The Customs Code of the Eurasian Economic Union: terminology issues

The author makes observations with respect to the terms used in the Customs Code of the Eurasian Economic Union. Taking into account the views of scientists he proposes to revise some of the most important terms in the customs field.

Key words: customs legal relations, customs operations, customs procedures, customs border, declaration

Karabaev B. R. (Bishkek, Kyrgyz Republic) Appraisal concepts of the tax law in the Kyrgyz Republic and the Russian Federation: the comparative legal study

The article provides comparative legal study of appraisal concepts of the tax law in the Kyrgyz Republic and the Russian Federation; discusses the specifics and relations between appraisal concepts and principles of the tax law. The research introduces certain influential appraisal concepts, considers the legal basis of their concretization by law enforcement agencies and analyzes the activities of subjects of interpretation and application of appraisal concepts.

Key words: tax law, appraisal concepts, discretion, principles of the tax law, law enforcement agencies

LEGAL ASPECTS OF ECOLOGY

Ignat’eva I. A. (Moscow) Features of legal regulation in the field of management of production and consumption waste in the Arctic zone of the Russian Federation

Vulnerable Arctic environment requires special protection measures against the negative impact of production and consumption waste. The author says that some features of legal regulation in the field of management of production and consumption waste are taken into account in the program, strategic acts concerning the regulation of activities in the Arctic zone of the Russian Federation. However, the potential for effective recording of the conditions and the state of the Arctic environment in the regulatory legal acts of the Russian Federation subjects has yet to be fully realized.

Key words: production and consumption waste, Arctic zone of the Russian Federation, solid municipal waste, separate waste collection

PAGES OF HISTORY

Emel’yanov B. V., Ionaytis O. B. (Yekaterinburg) Lev Petrazhitsky’s psychology of law

The article examines the main provisions of the conception of one of the most original Russian philosophers L. Petrazhitsky. He took an active political stance: he was among the originators of the cadet party and a member of its central committee; also he was a deputy of I State Duma. L. Petrazhitsky developed his ideological ideals in academic works and teaching activities. He considered a psychological factor to be the most important factor of jurisprudence and introduced the basic tenets of psychology of law according to the thesis that law is an inner relationship of Me and Another. The article also focuses on the L. Petrazysky’s understanding of policy of law as an academic discipline.

Key words: psychology of law, L. I. Petrazhitsky, law and morality, theory of law and state

MUSEUM OF SLI – USLA – USLU HISTORY

Zipunnikova N. N., Kalinina A. V. (Yekaterinburg) The law faculty of the Irkutsk State University in 1918–1920: evidence of educational daily life

Using documents from the regional archive the authors demonstrate that organizers of legal education in Irkutsk looked back upon the prerevolutionary educational and legal traditions. The main aspect of university’s life – educational one – was initially based on the rules of Russian Empire legislation, adjusted for the existing staffing, methodical and other resources. A wide range of clerical documents as an important source of studying history of legal education is used for the reconstruction of faculty’s daily life. Curriculums and certain study programs of the law faculty become a focus of attention. The authors uncover a severe lack of teaching staff in the Irkutsk State University at the beginning of its history and attempts to overcome those difficulties. Besides that, substantial efforts were made to acquire studying and scientific books for the university library. The need to organize education supporting agencies at the law faculty had appeared clearly from the outset. The work of education and methodical rooms and the social museum had made important contributions to the development of educational and scientific daily life of the «juvenile» law faculty.

Key words: law faculty, Irkutsk State University, educational and legal tradition, educational daily life, initial stage, clerical documents, curriculums, study programs, chairs, professors, staffing problem, education supporting agencies