№ 4 (127) / 2019

PUBLIC ISSUES AND POLITICAL SCIENCE

Mukhametzaripov Il’shat (Kazan) The legal status of religious courts in the Russian Federation: arbitration courts, institutions of mediation or informal institutes outside the legal field?

The article studies the legal status of religious courts in the Russian Federation. The author concludes that religious courts are formal or informal bodies of religious associations that resolve conflicts in compliance with religious norms. Religious courts can be classified according to the religious affiliation, nature of activity, and circle of persons. There is a discussion in the Russian legal community about the expansion of the religious court’ activities in the legal sphere within the framework of laws on arbitration and mediation. On the basis of a study of the Russian legislation the author concludes that religious courts can’t function as arbitration courts and mediation organizations due to the legal restrictions and a number of contradictions between religious norms and secular law. Today religious courts can act in the legal field only as structural units of religious associations based on their internal regulations and complied with law requirements. In the Russian Federation, there are Orthodox and Catholic ecclesiastical courts, conflict resolution bodies of Protestant organizations, rabbinical courts, Sharia courts in the form of Kazyats of the Muslim religious boards, Maslikhat courts of reconciliation in the North Caucasus based on customary and religious norms. The judicial practice materials record the activities of religious courts of various faiths in the Russian regions, and sometimes their legal status becomes the subject of study by secular judges.

Key words: state-confessional relations, secular state, religious associations, arbitration court, mediation, religious court

COMPARATIVE JURISPRUDENCE

Kokotova Mariya (Yekaterinburg) The purposes of the existence of dissenting opinions in the Russian Federation Constitutional Court and the US Supreme Court

The constitutional review exercised by the Russian Federation Constitutional Court and the US Supreme Court is analyzed. The article considers the purposes of the existence of dissenting opinions in the Russian and American constitutional review; analyzes the assumptions that dissenting opinions can facilitate the development of judicial practice and laws as well as make the issue explored by the court more clear for the public. The author concludes that these goals are pursued by both of the mentioned bodies with a certain difference. It is noted that judges of the US Supreme Court use dissenting opinions to improve the elaborating decision, in contrast to judges of the Russian Federation Constitutional Court. Besides that, the decisions of the US Supreme Court contain references to dissenting opinions as a part of its practice. The Russian Federation Constitutional Court does not refer to dissenting opinions. The author puts forward an idea that, in general, the purposes of using dissenting opinions by the Russian Federation Constitutional Court and the US Supreme Court are the same, but, in the Russian constitutional proceedings, the use of this institution is limited due to the theory of objective truth.

Key words: dissenting opinions, constitutional review, US Supreme Court, Russian Federation Constitutional Court

LOCAL SELF-GOVERNMENT AND MUNICIPAL LAW

Il’inykh Aleksei (Chelyabinsk) Urban districts with intra-city division in the municipal-territorial structure: formation experience and prospects

The article provides a legal analysis of changes in the territorial foundations of local self-government in Russia concerning the introduction of a new type of municipal entities – urban districts with intra-city division. An overview of regional legislation in terms of the possibility of implementing this institution and the willingness of legal systems of subjects for its implementation is given. First of all, the author gives the example of the introduction of a new type of municipal entities in Chelyabinsk, Samara and Makhachkala. He studies the procedure of the creation of urban districts with intra-city division and draws attention to some gaps in the legislation governing this procedure. The author reveals the problems associated with avoiding direct elections in the formation of local self-government bodies of the urban district with intra-city division; with delimitating powers and properties between the urban district and its constituent intra-city areas; and with a weak level of budgetary provision of intra-city areas.

Key words: territorial foundations of local self-government, intra-city area, urban district with intra-city division, local self-government bodies, issues of local importance

CRIMINAL LAW AND PROCEDURE

Idrisov Khusein (Groznyi) Legal liability of medical organizations for harm caused to the life or health of a citizen

The article examines the issues of tort liability of subjects of medical activities. It provides an analysis of the legal regulation of tort relations, one of the subjects of which is medical organizations. There is also a detailed characteristic of the grounds and conditions of civil liability as a result of the occurrence of tort obligations in the field of medical activities. The author defines the concepts of «tort obligation» and «civil liability in the medical field».

Key words: patient, medical organization, harm, liability, ground of liability, conditions of liability, Civil Code of the Russian Federation

Barabash Anatolii (Krasnoyarsk) The concept of «presumption»: the basis for the appearance and the use in legal activities

In the article, it is established that the concept of «presumption» is used in all branches of law. However, each scholar has his / her own interpretation of this concept, and it is entirely unacceptable in social science. The essence of presumption has been revealed by criticizing various researchers’ arguments. In the previous papers of the author, this critical approach had been beneficial for constructing the concept of «legal principle». Comparison between these two concepts is the best way to resolve an issue about considering the presumption of innocence as a principle of the Russian criminal procedure.

Key words: presumption, speculation, principle of the criminal procedure

Davletov Akhtyam, Azarenok Nikolai, Asanov Reshat (Yekaterinburg) The problem of the investigator’s functions in criminal proceedings

The article deals with various approaches to solving the problem of the investigator’s functions that have developed in criminal procedure science. There are three concepts of the investigator’s functions: competitive, consolidated, and differentiated. These concepts are analyzed on the basis of the philosophical characteristic of the category «function». The authors show the validity and value of each concept and, at the same time, undertake a critical assessment of them. The authors’ understanding of the problem of the investigator’s functions in modern domestic criminal proceedings is formulated.

Key words: functions, activity, competition, investigator, goal-setting

Titov Pavel (Yekaterinburg) Some problems of criminal proceedings in private prosecution cases

The article investigates some current theoretical and practical problems of criminal proceedings in private prosecution cases aimed at protecting private rights and interests. The author analyzes the procedure in situations when, during the investigation of a criminal case of the public prosecution, the actions of the accused must be retrained to the criminal law norm relating to private prosecution. The author ascertains that this issue is not regulated by law, discusses some ways of its solution (the continuation of public investigation; the termination of a criminal case and the transfer of its materials to a justice of the peace; the allocation of the criminal case materials and sending them to a justice of the peace for making a decision), and proposes amendments to the criminal procedure law. He mentioned the situation when the proceedings had been initiated according to the private prosecution rules, and during the consideration of a case by a justice of the peace it turned out that the accused had criminal immunity. It is shown that further proceedings should be carried out in a public order, and a justice of the peace should transfer the materials to investigating authorities. The author deals with the question about the procedure of private prosecution when a victim is unable to defend his / her rights. He tries to separate the situation requiring public proceedings and the situation requiring private proceeding with the participation of a prosecutor; the criterion of their division is the degree of inability of a victim to defend his / her rights and legitimate interests. The issue about a possibility of forcible bringing of a victim and a defendant to court in cases of private prosecution is discussed; it is proved that the victim, who is a private prosecutor, couldn’t be brought to court forcibly.

Key words: criminal prosecution, private prosecution, private prosecutor, victim, forcible bringing to court

QUESTIONS OF INVESTIGATION AND OPERATIVE-RESEARCH ACTIVITY

Karepanov Nikolai (Yekaterinburg) Forensic classification of traces depending on the method of their detection

The article provides a classification of traces, the basis of which is the method for their detection and investigation. The author distinguishes traces detected and investigated by using physical methods, and traces detected and investigated by using chemical methods. The former are divided into traces detected by direct perception of the human senses (traces detected by visual, sound perception, smell, taste, tactile sensations), and traces that couldn’t be detected in such way (traces of invisible light and traces of electromagnetic waves). The author names separately the varieties of traces formed at the crime scene, which are detected by using chemical methods (traces of blood, fingers, poisons, combustible and flammable substances, etc.).

Key words: traces, material bodies, physical fields, human senses, radiation of the invisible spectrum, chemical reactions

ADMINISTRATIVE LAW AND PROCEDURE

Stakhov Aleksandr (Moscow) New approaches to the understanding of administrative tort in the system of administrative legal relations

The article substantiates the necessity of modernization of the Soviet theory of administrative coercion by taking into account current provisions of the Russian Federation Constitution and the administrative procedural legislation formed in the post-Soviet period. New approaches to understanding the current system of administrative torts and administrative-tort situations as well as the structure of administrative-tort procedural legislation are put forward, according to Art. 2, 8, 10, 18, 118 of the RF Constitution. The proposed approaches allows to single out in the structure of administrative proceedings, on the one hand, a system of homogeneous administrative and judicial administrative cases arising from administrative-tort situations involving legal entities and individuals related to control and supervision activities; on the other hand, a system of homogeneous administrative and judicial administrative cases arising from administrative-tort situations related to administrative-punitive (administrative-jurisdictional measures. The author proposes to develop and introduce in the practice of executive authorities and courts the scientifically based and legally formalized differentiated models of non-judicial and judicial administrative procedures for resolving cases arising from administrative-tort situations. He also proposes to allocate two parts of the administrative-tort legislation – executive and judicial ones. The development and adoption of federal laws «On Administrative Control and Supervisory Proceedings» and «On Administrative Proceedings in Cases of Administrative Offenses», as well as the Unified Code of Administrative Procedure of the Russian Federation are considered as a key measure of substantial modernization of the procedural part of the Code of Administrative Offenses of the Russian Federation.

Key words: administrative coercion, administrative proceedings, administrative procedure, administrative offence, administrative tort, administrative-tort situation, administrative-tort law, control and supervisory activities, administrative procedure law

Morozova Natal’ya (Krasnoyarsk) History of the administrative responsibility institution and the legislation on administrative offences

The article traces the development of the administrative responsibility institution – from the idea about small penalties for minor offences to the current state of the legislation on administrative offenses. The article shows how this institution has acquired those features that allow us to talk about the independence of administrative responsibility as a type of legal responsibility. The author also talks about the influence of scientific thought on the development of legal regulation and the role of judicial and law enforcement practice in the formation of the current appearance of the given institution. The article notes that the development of the administrative responsibility institution was not smooth, but episodic, and the incentives for its development were changes in legislation as a result of the prevailing conditions, the previous work of theorists and the accumulation of experience in law enforcement. The whole development of this institution is divided into a few stages; the sequence of their change is described. The author comes to the conclusion that the current state of the administrative responsibility institution is the result of long-term development; its inherent characteristics are historically predefined and cannot be arbitrarily reformed without threats to the entire working mechanism

Key words: administrative responsibility, administrative offences, legislation on administrative offences, administrative proceedings

CIVIL LAW AND PROCEDURE

Shakhnazarov Beniamin (Moscow) Conflict-of-laws approaches to determining the original rights holder of industrial property objects

The author considers the problem of choosing the law applicable to the determination of the original rights holder of industrial property objects in cross-border relations. It is noted that the choice of the law governing the procedure for determining the original rights holder is one of the main issues of the conflict-of-laws regulation of industrial property. The author emphasizes that dépeçage and detailed approaches to various industrial property objects appear to be effective and rational mechanisms of conflict-of-laws regulation when choosing such a law. It is proposed to consider the law of the country of the initial filing of an application for registration (as the most closely related to the relationship) applicable to the determination of the original rights holder of the registered industrial property objects. In case of simultaneous filing of an application in several countries as well as filing of an international application, the right of each country of registration is considered to be applicable to the determination of the original rights holder. When choosing the law applicable to the determination of the original rights holder of non-registered industrial property objects, it is proposed to use the conflict-of-laws approach implemented in the Russian legislation with regard to copyright, namely the application of the law of the country where a legal fact, that became the basis for the acquisition of relevant rights, took place.

Key words: conflict-of-laws approach, regulation, determination of the original rights holder, industrial property objects, dépeçage, differentiated approach

Abdulina Evgeniya, Koshcheeva Elena, Mal'tsev Aleksei (Kirov) Forensic genetic examination in civil proceedings

The issues of legal regulation of the appointment and conduct of forensic genetic examinations in civil cases are considered. The problems of legitimacy and proper formalization of the procedure for selecting biological samples from living individuals and corpses for genetic research are analyzed. The authors bring forward some options for interpreting the expert’s conclusions in terms of their sufficiency for making an informed court decision. They reveal a number of gaps in legislation regulating the conduct of forensic genetic examinations in civil cases and propose recommendations for their elimination.

Key words: forensic genetic examination, civil proceedings, evidence in court

Kuznetsov Evgenii (Yekaterinburg) The right to the execution of a judgment and the right to a fair trial: the correlation issues

The article discusses the structure of the right to a fair trial, its relationship with a new legal category called «the right to the execution of a judgment». The study aims at identifying the place of the right to execution in the legal system of the Russian state. The author reveals the structural elements of the right to judicial protection (the right to bring an action, the right to have justice administered by the court, and the right to the success of an action), and analyzes its correlation with the right to a fair trial. He describes the structural elements of the right to a fair trial, highlighted in the practice of the European Court of Human Rights, the last of which is traditionally called «the right to the execution of a judgment». It is noted that the right to execution occupies one of the most important places in the system of protecting rights, freedoms and legitimate interests.

Key words: bailiff, justice, right to judicial protection, right to a fair trial, right to the execution of a judgment, European Court of Human Rights

Ivanova Ekaterina (Yekaterinburg) Court-annexed mediation in the USA

In the USA, mediation has been developing almost since the colonists had created new settlements. Nowadays, mediation applies to different types of legal disputes and is used by both private companies and government agencies, including the court system. Court-annexed mediation differs from private mediation in several aspects: initiative subject, procedural rules, payment methods, etc. In the USA, court-annexed mediation is implemented also by the appeal courts.

Key words: civil litigation, commercial litigation, mediation, court-annexed mediation, mediation in the court of appeal

ECONOMICS AND LAW

Arnautov Dmitrii, Erokhina Marina (Kaliningrad) Digital assets in the Russian law system

The article analyzes the legal nature of digital assets in relation to the system of objects of civil rights in Russian civil law. The authors say that digital assets are similar to such objects of civil rights as non-cash funds and securities. In support of these findings, they analyze doctrinal views on the nature of intangible objects that have real origins and a sign of convertibility. According to ideas about the nature and essence of money in legal doctrine, the authors attempt to systematize the signs (aspects) of the concept of «money». It is proposed to analyze separately the ratio of economic and legal basis in the concept of «money»; the nature of cash and non-cash money; the essence of digital assets and other similar legal institutions. Draft laws No. 424632-7 «On Amendments to Part One, Second and Fourth of the Civil Code of the Russian Federation», No. 419059-7 «On Digital Financial Assets» and No. 419090-7 «On attracting investment using investment platforms» are examined. The possibility of qualifying cryptocurrency as other property is discussed. It is concluded that there are a certain inconsistency of draft laws and a lack of a unified approach to the legal regulation of public relations arising from digital assets.

Key words: digital assets, cryptocurrency, blockchain, bitcoin, token, objects of civil rights, non-cash money

Tasalov Filipp (Moscow) Competence scope of the antimonopoly authority in corporate review procedure

The article discusses the relationship between the norms of antitrust laws and the provisions of the Federal Law «On Procurement of Goods, Works, Services by Certain Types of Legal Entities», which govern the grounds, the procedure for appealing the customers’ actions by procurement participants, and the legal consequences of exercising the suppliers’ right to file a complaint. Based on the analysis of antitrust and judicial practice, it is proved that there is a conflict between the laws on corporate procurement and the Federal Law «On Protection of Competition», which define the competence scope of the antimonopoly authority considering such complaints. In the author’s opinion, the application of analyzed provision is not uniform because of the willful policy of the Federal Antimonopoly Service of Russia.

Key words: corporate procurement, Federal Antimonopoly Service, procurement review procedure, procurement participants, customers

Murzin Dmitrii (Yekaterinburg) Problems of legal regulation of scientific activities as a creative activity

The article deals with the features of scientific activities as a creative activity. Legal definitions of science and scientific activities in the Russian legislation and international documents are analyzed. It is concluded that the subject of legal regulation of scientific activities can be determined only after the legal nature of a result of scientific activities is defined. The problems of legal regulation of scientific activities and the prospects of legal research in this sphere are designated.

Key words: science, scientific activities, creative relations, intellectual rights, results of scientific activities, forms of scientific activities

LEGAL ASPECTS OF ECOLOGY

Nikishin Vladislav (St. Petersburg) Determination and change of the boundaries of land and land plots, forest plots, water objects allocated for conducting the works related to subsoil use (the end)

The author investigates the grounds for using land for the geological study of the subsoil without granting land plots and establishing easements. He analyzes the need to identify the owner of the land plot when issuing the permission to use it without granting. The causes of conflict of interests of persons, who apply for granting the land plots necessary for conducting the works related to subsoil use, and persons who already use these plots on legal grounds, are revealed. It is emphasized that, in cases of withdrawal of land plots in connection with subsoil use, it is necessary to confirm a public nature of the need for such withdrawal. The author defines the needs for revising conditions of the license for subsoil use, separating and aggregating the allocated plots, shifting land plots from one category of lands to another. The author wants to know if it is possible to find a comprehensive solution to a problem of rational use and protection of natural objects of the uniform territory of environmental management. He concludes that the legal order of granting and subsequent use of lands, land plots, forest plots, water objects allocated for conducting the works related to subsoil use should include the appropriate measures of their interdependent (integrated) rational use and protection.

Key words: land plot, forest plot, water object, subsoil plot, integrated environmental management, boundaries of mining lease, license on subsoil use

MUSEUM OF SLI – USLA – USLU HISTORY

Zipunnikova Natal'ya, Kalinina Аnna (Yekaterinburg) Organization of scientific work at the law faculty of the Irkutsk State University in the period of its formation (1918–1920)

The article raises the issue of the formation of the Russian educational and scientific system, including the training of lawyers and the development of jurisprudence, at the turn of ages. The authors touch upon the issues of the continuity of scientific ideas and law schools. Considerable attention is paid to ensuring conditions for scientific work at the law faculty of the Irkutsk State University in the period of its formation – in 1918–1920. The authors describe the creation of a scientific library and a University publishing house, the publication of the first collection of scientific papers. The article draws attention to the preparation of the first scientific works by professors of the law faculty as well as to student scientific activities (including student scientific clubs), which took place in the most difficult circumstances of a crucial period. The authors also outline the first steps in the work of the Irkutsk Law Society, which was established almost at the same time with the Irkutsk State University.

Key words: science, Irkutsk University, law faculty, law school, turning points of history, continuity, scientific library, publishing house, scientific works, student science, forensic club, law society

LIBRARY

Bondar’ Nikolai (St. Petersburg) Review of the book: Dobrynin N. M. Public administration: Efficiency and quality. Modern version of the newest history of the state: a textbook. – Novosibirsk: Nauka, 2019. – 941 p.