№ 6 (129) / 2019

COMPARATIVE JURISPRUDENCE

Liu M. (Beijing, People’s Republic of China) Showing leniency to a person who has admitted guilt and is ready to be punished in China

The author considers the institution of showing leniency to a person who has admitted guilt and is ready to be punished, which recently appeared in the legislation of the PRC. The author investigates the sources of this institution, compares it with the institutions of confession, redemption of guilt by merit and sincere confession. The article analyses the relationship of the institution with the procedure for choosing a measure of procedural coercion, with the procedure for imposing punishment, including the systemic relationship between the act of admitting guilt and expressing readiness to be punished and the decisions taken at the pre-trial and judicial stages of legal proceedings. The peculiarities of the institution set by the criminal and criminal procedure legislation of the PRC are reviewed. The accelerated procedure of legal proceedings in connection with the admission of guilt by a person and the expression of readiness to be punished is considered. The influence of accelerated legal proceedings on the problem of optimization of the judicial system work is studied separately.

Key words: showing leniency to a person who has admitted guilt and is ready to be punished, confession, redemption of guilt by merit, frank confession, accelerated proceedings, optimization of the work of judicial officers

Isaeva A. (Tomsk) Legal assessment of the prohibition on wearing clothes covering a face in public places

The article studies the norms that prohibit wearing religious clothes in different countries. It raises the issue of the creation by the European Court of Human Rights of precedents that establish the principles of permissible restriction of freedom of religion and belief. The author discusses the Russian legislation and law-enforcement practice regarding the limitation of wearing clothes, which clearly expresses the religious affiliation. Their possible impact on ensuring interfaith harmony and national security is determined. By using the comparative-law method the author examines the legislation on wearing clothes covering a face in public places, its development trends, as well as law-enforcement practice in certain countries including Belgium, Germany, Denmark, Netherlands, France, Switzerland, etc. The article focuses on the regulation of the students’ appearance in Russia, since the issue of wearing religious clothes in public places, in particular educational institutions, has become relevant in our country. The author analyses the law-enforcement practice of the Supreme Court of the Russian Federation, which considered the possibility of establishing at the regional level of the government prohibitions on wearing religious clothes, clothes with religious attributes and (or) religious symbols in educational organizations as well as on wearing hats in the premises of educational organizations. The author notes that, in Russia, the prohibitions on wearing clothes that cover a face are limited and affect only the education sphere; their goal is to implement the principle of a secular state and preserve the life and health of students. Therefore, these restrictions may be recognized as legal and necessary in a democratic society.

Key words: freedom of conscience, secular state, restrictions on human rights, European Court of Human Rights

THEORY OF STATE AND LAW

Shaburov A. (Yekaterinburg) A legal risk in terms of positive legal responsibility

The article analyses a concept of «risk» and shows its place and role in the mechanism of legal regulation. It assesses the positive and negative sides of risky activities. The contents of risk are considered in connection with legal responsibility. The author asserts that the concept of risk is a reflection of the category of legal responsibility in its positive aspect.

Key words: right, risk, positive legal responsibility

INTERNATIONAL LAW

Keshner M. (Kazan) The problem aspects of application of restrictive measures

The application of restrictive measures in various forms is an increasingly common phenomenon in international relations. The article examines some current problems of implementing international responsibility of states: the legitimacy of sanctions, the essence of collective countermeasures, the application of extraterritorial sanctions and their impact on international relations. Based on the analysis of international and national legal acts and the emerging practice of applying restrictive measures by states and integration entities, the author claims that there is no reason to define the law of sanctions, or sanction law, as an emerging branch of international law. The author also evaluates the sanction compliance as one of the modern realities of doing international business.

Key words: unilateral sanctions, collective countermeasures, third-party countermeasures, international sanctions, extraterritorial sanctions, law of sanctions, sanction compliance

CRIMINAL LAW AND PROCEDURE

Sabitov T. (Yekaterinburg) Moderation of exposure as a principle of criminal law

The article analyzes the principle of moderation of criminal law exposure: considers its content; distinguishes it from related legal principles; specifies the scope of its action. The author believes that the moderation of criminal law exposure means that the criminally significant behaviour should entail the legal measures sufficient to implement the tasks of general and private crime prevention. It is stated that this principle applies not only to criminal, but also to post-criminal behaviour. The author comes to the conclusion that repression saving is a special case of the principle of moderation of criminal law exposure, since the repressive measures do not extend to positive post-criminal behaviour. Justice and humanism do not cover the principle of moderation of criminal law exposure, and the latter should be considered an independent legal idea. A key feature of the principle of moderation is that this principle is designed to provide the low-cost and efficient work of the judicial and law enforcement systems.

Key words: repression saving, moderation of criminal law exposure, criminal policy, justice, humanism

Chernyshev D. (Nizhnii Tagil) Protected object of the right to refuse to give evidence

The right not to incriminate himself / herself and his / her close relatives enshrined in the constitutions of all civilized countries is considered obvious and inalienable. However, the nature of this right is not so clear in international law. The declared causes of the existence of witness immunity, such as ensuring a fair trial, protecting the person and will from coercion, preventing judicial errors resulting from self-incrimination, do not reflect the actual legal nature of this phenomenon expressed in the essence of the object of its legal protection. The article critically examines the absolute nature of the witness immunity enshrined in art. 51 of the Constitution of the Russian Federation. The author concludes that the real object of legal protection of the right to witness immunity is subjective interests, namely the desire of the guilty person to avoid responsibility for the crime committed, as well as the desire of the witness to help him with this. In the author’s opinion, these interests are not legitimate because they are contrary to the purposes of justice and should not be protected by law. However, according to the Constitution of the Russian Federation, these illegal interests are absolute and placed above the objective public ones. The author believes that the existence of witness immunity in the current legal reality is not relevant and not advisable.

Key words: witness immunity, legitimate interests, human rights

QUESTIONS OF INVESTIGATION AND OPERATIVE-RESEARCH ACTIVITY

Bakhteev D. (Yekaterinburg), Smakhtin E. (Tyumen) Forensic features of procedural actions with digital traces

The article discusses digital information from the perspective of its physical and legal nature, and describes the contemporary approaches to understanding this concept in legislation and legal science. The author analyses the relationship between digital information and the electronic medium on which this information is located. The mechanism of transformation of digital traces into criminal procedural evidence is examined. Digital information is evaluated in terms of dividing all information traces into material and ideal ones; it is concluded that digital information is the third specific form of trace information. The author outlines a number of features of digital traces including their indirectness; the ability to be copied and the independent existence of copies; the ability to be converted to other forms and to be located on various media; the need to use technical means for its perception; anonymity. The classification of digital traces is given, based on the form of their medium, the method and nature of access to them, their origin, location, and a form of their presentation.

Key words: digital information, digital evidence, electronic information, electronic medium, digital traces, digital footprints, digital forensics

Mamurkov V. (Yekaterinburg) New technologies in solving the problems of forensic DNA identification

Overlapping traces formed due to the contact adhesion properties are a large group of traces found at the crime scene. They include traces with a small amount of biological substance: isolated cells, microparticles of damaged tissues and organs taken from crime instruments, hair fragments, sweat-and-fat traces, etc. Finding and isolating a DNA profile from micro-traces face certain challenges. Promising genetic developments use modern methods for analysing the polymorphism of individual nucleotides. The development of research technologies allows obtaining a DNA profile from a small and ultra-small amount of DNA contained in about 8 cells of the human body. The task becomes more complicated when the sample from the crime scene contains DNA from two or more individuals. This problem can be solved by using the molecular genetic analysis of DNA of single cells based on the use of laser capture microdissection (LCM), in combination with typing both mitochondrial DNA and chromosomal DNA.

Key words: micro-traces of biological origin, forensic DNA identification, new technologies of DNA research, single nucleotide polymorphism

CIVIL LAW AND PROCEDURE

Abushenko D. (Yekaterinburg) Application of the rules on approval of major transactions to the waiver of the claim: some reflections on the recommendation of the Supreme Court of the Russian Federation

The article is devoted to the problem of applying the mechanism of approval of major transactions to the waiver of the claim declared by a plaintiff. The author wants to know whether it is admissible to extend the control carried out during the corporate procedures to procedural actions. He discusses separately the issues arising from the development of a possible mechanism in which the participants of the corporation could authorize specific procedural actions.

Key words: waiver of claim, major transaction, approval of major transactions, corporate control

Rusinova E., Chudinovskaya N. (Yekaterinburg) Features of representation in cases of «non-action» proceedings in civil process

The authors evaluate the legal nature of special, writ and simplified proceedings. Based on the analysis of the norms of substantive and procedural law as well as judicial practice, the authors identified the features of the representative’s procedural activity in cases of special, writ and simplified proceedings. With regard to the reform of the representation institution in civil process and the new legislative provisions on the educational qualification of representatives, the authors considers the influence of these provisions on representation in cases of «non-action» proceedings.

Key words: representation, special proceeding, writ proceeding, simplified proceeding, educational qualification

Kuznetsov E. (Yekaterinburg) The right to the execution of judgments in social cases

The article deals with the right to the execution of judgments in terms of its consolidation and development in international law. The author identifies the international legal basis of the right to the execution of judgments in social cases and the current level of its legal regulation. He analyses the impact of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which establishes the right to a fair trial that includes the right to the execution of judgments, on the Russian legal system; and reveals the rules on the right to execution enshrined in the main «soft law» international acts on enforcement: the Recommendation Rec(2003)17 of the Committee of Ministers to member states on enforcement, the Guidelines for a better implementation of the existing Council of Europe’s Recommendation on enforcement (GuideLines CEPEJ, 2009) and the Global Code of Enforcement. The key problems of enforcement proceedings in social cases are identified; the general ways for resolving them are proposed, based on the analysis of international legal acts and the ECHR practice.

Key words: bailiff, enforcement proceedings, right to a fair trial, right to execution, social cases

LABOUR AND SOCIAL LAW

Chesalina O. (Munich, Germany) Employed or self-employed in a digital economy: the procedure of status determination for social insurance relations in German

The article deals with the procedure of status determination for social insurance relations in German in the context of a digital economy and the emergence of new forms of employment. The author investigates whether there is a relationship between the lack of legal disputes in Germany regarding the legal status of persons working through online platforms and the status determination procedure for social insurance relations. She also examines the impact of the decisions of the German Federal Social Court on the practice of the Clearing House of the German Federal Pension Insurance, which conducts the status determination procedures. The author proposes to upgrade the status determination procedure and draws conclusions on the need to change the criteria using by courts to answer the question on whether persons are employed or self-employed.

Key words: self-employed, compulsory social insurance, judicial practice, status determination procedure, Clearing House of the German Federal Pension Insurance

Abalduev V. (Saratov) The concept of legal regulation of the minimum wage in Russia

Along with changes in the legislation on the minimum wage, there is a review of the relevant judicial practice that has developed over the past decade. In 2017–2019 the Russian highest courts, including the Constitutional Court, applied new approaches to the establishment of the minimum wage in a number of their decisions. All of this leads to a change in the conceptual principles of the minimum wage institution and should be researched. The article defines the main directions of the Russian state policy on legal regulation of the minimum wage and shows the role of the court in initiating such changes. The author considers the new provisions of labour legislation implementing these directions. The norms of 2018 for the first time defined the relationship between the minimum wage and the cost of living of workers. This offers the opportunity for the introduction of part 1 of art. 133 of the Labour Code of the Russian Federation. The increase in the federal minimum wage had a negative impact on the regulation of the minimum wage by collective bargaining agreements: improvements in the workers’ status through acts of social partnership are henceforth expected only in certain prosperous industries, regions and organizations. The current practice of the Constitutional Court of the Russian Federation on the elements of the minimum wage is investigated. The positions of the Constitutional Court comply with the meaning of the minimum wage as a main state guarantee of remuneration of labour and should be fixed in law. The author proposes some clarification of the labour-law norms concerning the right to the minimum wage for part-time employment and the financial support of the minimum wage.

Key words: minimum wage, wages, living wage, Constitutional Court of the Russian Federation, Labour Code of the Russian Federation, social partnership

Usacheva E. (Voronezh) Social fatherhood (motherhood): the problem statement

The article outlines the problem of legal regulation of relations between children and spouses (partners) who raise them. The author analyses the norms of Russian family legislation on actual caretakers and children being raised and finds out whether they are applicable to the relations mentioned above. It is suggested that, in foreign countries, there is the concept of social fatherhood (motherhood), according to which a part of parental rights and obligations is given to a person who has actually raised a child. According to European law and the ECHR practice, a social father (mother) exercises non-property rights (the right of access to a child), and in common law countries, a social father (mother) has the duty to provide maintenance to a child. The signs of social fatherhood (motherhood) used in foreign laws are identified. The author wants to know how important it is to be aware of the lack of biological ties with a child for the formation of social fatherhood (motherhood) relations. She also examines the norms of Soviet family law, according to which actual caretakers were bound to provide maintenance to a child. It is proposed to develop the Russian concept of social fatherhood (motherhood); the problems associated with this are indicated.

Key words: fatherhood, motherhood, social fatherhood, parentage, alimony obligations, relations between parents and children

ECONOMICS AND LAW

Luk’yanchikova E. (Saint Petersburg) Bankruptcy of a builder: participants of shared construction are not on an equal footing

The author touches upon the issue of unequal rights of participants of shared construction during the bankruptcy of a builder. For instance, according to the literal interpretation of the rules on bankruptcy, the construction participants, who invested money into the cottage and apartment building in townhouses consisting of two blocks, are deprived of the right to include the requirement into the register of requirements for the premises transfer. In this regard, the author considers the concepts of an apartment house and a house of blocked building enshrined in law; determines whether the provisions of the Federal Law «On Insolvency (Bankruptcy)» (subparagraphs 3 and 3.1 of paragraph 1 of article 201.1) meet the requirements of the constitutional principle of equality; analyses the possible reasons for deviating from this principle; explores the present-day judicial practice on the inclusion into the register of requirements for the premises transfer the ones that concern cottages; specifies the conditions under which such requirements may be included in the register. The author concludes that the right to include the requirement into the register of requirements for the premises transfer should be also given to the construction participants who deposited money under the agreement on participation in shared construction. This agreement might concern: 1) flats in the apartment houses consisting of two blocks; 2) cottages under the condition that there is a unitary construction project; the general housing infrastructure is created; funds of construction participants are accumulated for building up the territory.

Key words: bankruptcy of a builder, construction participant, register of requirements for the premises transfer

Voitkovskaya Ilona (Moscow) Problems of labour inequality in the Eurasian Economic Union

The author studies the Treaty on the Eurasian Economic Union, the national labour legislation of the EAEU member states and the judicial practice of the Court of the Eurasian Economic Union, and, on this basis, finds out whether there is a real equality between labour rights of migrant workers from the member states and national workers. Some signs of labour inequality in the norms of the Treaty on the Eurasian Economic Union and the national legislation of the member states are revealed. It is suggested that the Eurasian Economic Union Treaty, although it provides a number of labour preferences for citizens of the EAEU member states, does not take into account the peculiarities of the member states legislation that actually restricts the access of the EAEU migrants to the national labour markets of member states; the Treaty does not protect their rights on a par with local workers of the state of employment and does not ensure the freedom of movement of labour. In order to achieve employment equality, it is proposed to complement the Eurasian Economic Union Treaty with the norms equalizing the labour rights of member workers and local workers. As a basis for finalizing the Eurasian Economic Union Treaty, it is proposed to use the practice of the Court of the Eurasian Economic Union and some provisions of the Convention of the International Labour Organization on protection of the migrant workers’ rights.

Key words: labour migration, Eurasian Economic Union, member state worker, labour inequality

LEGAL ASPECTS OF ECOLOGY

Kruglov V., Vagina O., Shepeleva N. (Yekaterinburg) On the ratio of the rights of the mining claimant and the owner of the land plot located within the mining allotment

The authors consider the urgent question concerning the necessity to obtain consent from the mining claimant by the owner of the land plot located within the mining allotment in order to build the capital construction project having separate underground parts at a depth not exceeding five meters. The authors touch upon the allocation of public authorities (federal and regional) and local authorities powers in the regulation of related legal relations: land and mountain. Having analyzed the current federal and regional legislation and judicial practice, the authors conclude that the use of the land plot located within the mining allotment in order to build the capital construction project having separate underground parts at a depth not exceeding five meters without mining claimant’s consent contradicts the legislation on sustainable use and protection of subsoil resources.

Key words: land-use, subsoil-use, licensing, capital construction project

Tikhonov A. (Yekaterinburg) The impact of the court decision on the legal relation associated with the withdrawal of the land plot for the state and municipal needs

The court decision is considered as an element of the legal composition that determines the dynamics of the legal relation associated with the withdrawal of the land plot for the state and municipal needs, along with the decision of public authorities or local governments on the withdrawal of the land plot, the written notification of an owner about the forthcoming withdrawal of the land plot, and the withdrawal agreement. The parties to the legal relation mentioned above may apply to the court at different stages of the withdrawal of the land plot for the state and municipal needs. Depending on the stage, the court decision has a different impact on the dynamics of the legal relation associated with the withdrawal of the land plot. In particular, the court decision recognizing a decision of public authorities or local governments on the withdrawal of the land plot in the public interest as invalid is a fact that terminates the legal relationship between an owner of the land plot and a state authority (local government), and, thereby, it is a final element of the relevant legal composition. The court decision regarding the terms of the withdrawal agreement clarifies the legal relationship and acts as a direct element of the legal composition that determines its further dynamics. The court decision on the withdrawal of the land plot for the state or municipal needs is a legal fact, by virtue of which a public authority or local government has the opportunity to exercise its right to withdraw the land plot; such a decision is a «closing» element of the legal composition.

Key words: court decision on the withdrawal of the land plot for the state or municipal needs, element of the legal composition, dynamics of the legal relations

PROBLEMS OF LEGAL EDUCATION

Kodan S. (Yekaterinburg) Source study culture in the study of state and law: the main characteristics and formation trends

The study of state legal processes and institutions is based on the examination of the carriers of information about them – the sources of researching the legal sphere of society. Thus, the source study culture of legal scholars is of particular importance. The article proposes an understanding of the source study culture and shows its place in the structure of legal source studies, its principles, main characteristics, and formation trends.

Key words: legal science, legal source studies, culture of legal research, source study culture, ethical principles of scientific research

PAGES OF HISTORY

Sokolova E. (Yekaterinburg) «The great Elizabeth reigns and bounties us…»: on the supra-estate vector of the rule of law policy in the Russian Empire in 1740s – early 1760s

The article discusses the main directions of Russian legal policy in 1740s – early 1760s aimed at strengthening the rule of law. The author considers the supra-estate political and legal vector of the Empress Elizabeth’s legislative activities, which had greatly contributed to the institutionalization of the monarch’s special status as a sole guarantor of justice. She analyses the official initiatives to improve law-enforcement practice, to systematize estate legislation and to organize legal proceedings in central and local state institutions of the Russian Empire. Particular attention is paid to the issue of individualization of the subject in the judgment process with the personal participation of the Empress. The author reconstructs the features of legal awareness and the corresponding behavioural strategies of the persons involved in a number of criminal cases on charges of violating the administration order; she also shows the nihilistic attitude of private individuals – people from different social groups – to the binding force of law, since they were convinced that private interests had a legal nature and could be realized in opposition to the principle of public safety. The article concludes that some part of the Russian society of the studied period was not ready to grasp the value of law and legality, despite the efforts of the political elite to humanize the conditions of criminal imputation and to increase the responsibility of judicial institutions, including the Senate, for illegal actions. The continuity of the state and legal policy for preserving the «Peter’s legacy» was caused by the destabilization of the political system during the palace coups and, in general, provided for the monarch’s dominance in law-making and law-enforcement.

Key words: Russian Empire, autocracy, rule of law, law-enforcement practice, systematization of laws, supra-estate monarchy

MUSEUM OF SLI – USLA – USLU HISTORY

Zipunnikova N., Kalinina А. (Yekaterinburg) Bio-bibliographic dictionaries from the perspective of learning the history of legal education and science (in connection with the publication of the book «Doctors of Legal Sciences, Professors – Teachers and Graduates of the Irkutsk State University» (Irkutsk, 2018)

The publication of a remarkable book – the bio-bibliographic dictionary of law professors (teachers and graduates of the Irkutsk State University) – has become an appropriate occasion to explore a bio-bibliographic genre in order to know how much potential it offers for studying the history of Russian legal education and science, including the origins of the Ural law school. Bibliographic dictionaries defined by experts as an ancient type of bibliography are considered in the global and Russian historical and cultural context. The authors indicate some scientific approaches to the definition of bio-bibliographic dictionaries and underline their great variety. They give a number of examples of the use of biographical and bio-bibliographic resources in legal science and reveal the prospects of such work in terms of anthropological direction of discourse in socio-humanitarian studies. That led to the conclusion on the need for wider use of the bio-bibliographic genre in studies of the experiences of domestic legal education and scientific jurisprudence.

Key words: bio-bibliography, history of the bio-bibliographic genre, bio-bibliographic dictionary, Irkutsk University, law department, professors, doctors of legal sciences, scientists, graduates, origins of the Ural law school