№ 4 / 2018

THEORY OF STATE AND LAW

Osintsev D. V. (Yekaterinburg) The legal techniques and legal technologies: an essay on alternative law-enforcement

The purpose of this article is twofold: first, to disclose the essence of law in the simplest and most accessible way, leaving aside its fetishization and idealization of legal phenomena, the search for a secret meaning (which, in fact, lies on the surface: law is a form of government, a form turned, a means of making social phenomena official, a reference point for committing acts); second, to abandon the unfit philosophical-methodological and scientific approaches in law, which only distract from the legal reality and create false illusions of the perfection of the legal system. At the same time, the dogmatic approach to the study of legal phenomena does not imply blind obedience to the requirements and instructions resulting from the texts of legal acts, which, when they are developed (interpreted), are distorted in many ways, but aims at creating a technical and technological picture of legal regulation, which allows unequivocally and indisputably to act in any, even unpredictable, life circumstances that have public recognition and require legal influence in their implementation.

Key words: legal technique, legal technology, legal understanding, legal regulation, administrative influence, types of legal regulation

Syrykh V. M. (Moscow) The subject and the object of legal science: research focuses and reality

The article considers the relationship between the subject and the object of legal science as the interrelation between patterns of law, state, other phenomena, studied by legal science, and an objective reality, in which these patterns are manifested. Attempts to present the subject of legal science as phenomena and processes, studied by lawyers, are untenable. As evidenced by the positivistic theory of law, the idea about the identity of the subject of legal science and its object eliminates the problem of cognition of legal patterns and justifies the existence of legal science as an empirical science.

Key words: subject of legal science, object of legal science, patterns of legal science, principles of law, theoretical knowledge of legal science, empirical knowledge of legal science, legal concepts, idealistic understanding of the subject of legal science, materialistic understanding of the subject of legal science

Kodan S. V. (Yekaterinburg) Historical and legal source studies in the structure of current Russian jurisprudence

The article demonstrates the place of source studies in domestic historical and legal science and defines its role as a special, subsidiary, and applied branch of the history of Russian state and law. Turning to sources of studying the mediums of information about state and law in Russian jurisprudence, the author focuses on the current meaning of the knowledge about the theoretical foundations and cognitive instruments of historical and legal source studies for investigating the state and legal phenomena and institutions.

Ключевые слова: legal education and science, structure of legal science, history of state and law, historical and legal source studies, sources of law, sources of studying state and law

INTERNATIONAL LAW

Klyuchnikov A. Yu. (Lipetsk) The development of international law through judicial interpretation

The author asserts that an objective interpretation contributes considerably to the international law development, but, due to the lack of a unified and clear mechanism of its application, contains certain threats, such as a legislative powers assignment, a loss of authority by judges, etc. However, the states increasingly transfer their sovereign jurisdiction to a supranational level and depose assessment centre in favour of international courts. In support of his findings, the author gives examples from the ICJ and the ECHR practice.

Key words: court, international law, European Court of Human Rights, International Court of Justice, precedent, enforcement, jurisdiction, interpretation, custom, judicial decision

COMPARATIVE JURISPRUDENCE

Tolstykh V. L. (Novosibirsk), Grigoryan M. A. (Stepanakert), Kovalenko T. S. (Lugansk), Khalabudenko O. A. (Kishinev) Problems of formation and functioning of legal systems of unrecognized states (the end)

There are six unrecognized states (UrS) in the post-Soviet space. All of them were formed as a result of armed conflicts between a compactly residing minority and a state striving for national unification. The political goal of the UrS is usually a reunion with a close ethnos. Some UrS (Pridnestrovian Moldavian Republic, Republic of South Ossetia, Nagorno-Karabakh Republic, Republic of Abkhazia) are building an independent order, following Russia or Armenia. Lugansk and Donetsk peoples’ republics, whose political future is not clear, are building an ad hoc construction: they de facto follow the strategy of rapprochement with Russian law; allow the application of Ukrainian laws and try to create common legal institutions symbolizing integration intentions. UrS that have already built state institutions are carrying out reforms aimed at ensuring their sustainable functioning. LPR and DPR center on laws in the sphere of state building which fixe special regimes and establish governmental institutes.

The judicial system of the UrS most often copies the Russian one and includes courts of general jurisdiction, arbitration courts and a constitutional court. The non-recognition causes a number of organizational problems: a deficit of guarantees of judicial independence, corruption, lack of funds and resources, low legal culture. In addition, there are a number of objective problems: non-enforcement of the decisions of the UrS’ courts abroad, parallel jurisdiction, imputation of due process violations.

UrS passports are recognized by Russia, but are not recognized in other countries. This problem is partially solved by the acquisition of dual citizenship. Laws on citizenship of the UrS usually meet international standards; the law on the citizenship of Abkhazia is an exception.

Economic entities of the UrS are registered by the law of the UrS. Their legal personality is recognized in Russia. The laws of UrS on property are drawn up on the basis of Soviet and Russian models and, as a rule, are quite liberal. In some UrS, however, there are systemic problems: lack of guarantees of property rights, incomplete privatization, prohibition of transactions with land.

In recent years, almost all of the UrS have been trying to modernize the economy and investment legislation. Some mother states try to restrict entrepreneurial activity in the UrS.

The criminality on the territory of most of the UrS is of a social nature: a difficult economic situation constitutes a breeding ground for robbery.

The level of legal education and science in the UrS is quite low.

Key words: international law, comparative law, unrecognized states, legal system

Kasatkina A. S. (Moscow), Batalova M. R. (Moscow) The legal regulation of franchising in foreign countries

The article presents a comprehensive analysis of the legal regulation of franchising in international private law. It studies the legal design of franchising relationships, its features and types, as well as the methods of the franchising regulation in the United States of America, France and some other countries. The main stages of the formation of franchising, the current state and trends in the development of its legal regulation abroad are revealed. The study also focuses on the practice of concluding a franchising agreement, the legal status of its parties, the form, essential conditions and obligations of the parties to the agreement.

Key words: international private law, franchising, national legislation, case law

CRIMINAL LAW AND PROCEDURE

Dudarenko V. V. (Yekaterinburg), Neznamova Z. A. (Yekaterinburg) A historical analysis of the regulation of crime provocation: from the past towards the future

The article deals with the changes in the legislative regulation of crime provocation in criminal law. It is noted that, when determining the content of crime provocation, it is necessary to use an integrated approach, taking into account the international, criminal, and operative-research aspects of understanding of crime provocation. After the Russian legislator had borrowed the ECHR terminology, this led to the erroneous identification of crime provocation and criminal-law institution of complicity. Based on a historical analysis of the regulation of crime provocation in the criminal legislation of Russia, as well as the analysis of ECHR decisions and the crime provocation conception, developed by the ECHR, the authors conclude that there is a need for certain amendments to the criminal and other Russian legislation in order to clarify the concept and legal nature of crime provocation.

Key words: crime provocation, regulation, historical analysis, decisions of the European Court of Human Rights, legal nature of crime provocation

Karpov V. S. (Irkutsk), Sin’kov D. V. (St. Petersburg) A judicial fine – is it one of the other criminal-law measures or a «special» type of punishment?

The article touches upon the legal nature of a judicial fine and highlights some disputed issues associated with its use. It analyzes possible difficulties faced by law enforcers who take a decision to terminate a criminal case with the appointment of this criminal-law measure. The author doubts that the institution of a judicial fine would help reduce the workload of judicial and penal systems, as well as eliminate the negative impact of a real sentence in places of detention on persons who have committed minor and moderate crimes.

Key words: criminal-law measures, punishment, judicial fine, conviction

QUESTIONS OF INVESTIGATION AND OPERATIVE-RESEARCH ACTIVITY

Smakhtin E. V. (Tyumen) Digital technologies and forensics: a few disputed issues

The author attempts to determine the subject matter of forensics in light of the extensive use of computers and telecommunications networks in studying the activities of investigators and courts as well as crime and criminals. It is concluded that the areas of interest of forensics include, in the former case, the processes of programming the activities of investigators and courts, and, in second case (matters related to crime and criminals), the features of detection, fixation, seizure, and initial investigation of «electronic documents» and «digital traces».

Key words: electronic document, electronic signature, subject matter, forensics, investigation, electronic evidence, digital trace

CIVIL LAW AND PROCEDURE

Lisachenko A. V. (Yekaterinburg) The evolution of the system of management of copyright in musical works in terms of technology development

The article examines the evolution of the system of management of copyright in a musical work (and other content) in Russia. The history of the issue, current legal regulation and prospects for further improvement of legislation are studied. The author analyzes the relationship between the level of technology development and legal regulation; traces the evolution from the written method of recording sounds and the contract with the composer as the only basis for the use of the work to the actual priority of phonograms, distributed via the Internet, and the rights to these phonograms. The role of organizations for collective management of copyright and related rights, including organizations with state accreditation, in the development of a system of rights management in Russia is studied. The activities of these organizations are compared with the activities of new domestic Internet services for licensing, not provided directly by Russian legislation, but much more effective. The author concludes that today accredited organizations as the main source for obtaining licenses for the use of musical (and other) content are gradually replaced by Internet services operating under the licensing model «person to person». Judicial practice and some disputable provisions of the Russian legislation are highlighted.

Key words: copyright, related rights, exclusive rights, musical works, rights management

Nikitin A. V. (Yekaterinburg) The application of general provisions about the work and labour contract to the contracts of repayable rendering of services

According to civil legislation of Russia, the contracts of repayable rendering of services are regulated, in addition to a few rules about such contracts, by general provisions about the work and labour contract. The author questions the validity of such approach and considers certain rules concerning the work and labour contract from the perspective of their applicability to the contracts of repayable rendering of services. These rules include the rules related to the autonomy of the contractor, the contractor’s right to retention of the customer’s property and the procedure for delivery-acceptance of the executed work. The author concludes that the legal regulation of relations for the provision of services and execution of work should be implemented by different rules of law.

Key words: work and labour contract, contract of repayable rendering of services, reified result of activity, autonomy of executor, right to retention of the customer’s property, delivery-acceptance of services

Knyazkin S. I. (Moscow) The organizational and procedural aspects of the supervisory-instance court activities in the civil process

The author analyzes the procedural and organizational aspects of the activities of the supervisory-instance court in the civil process, and, based on the results of such analysis, examines the problem of combining its authorities to ensure the unity of judicial practice and to respond to judicial errors that couldn’t contribute to development of law, but are essential in the context of a specific case. It concludes that there is a need to differentiate the structure of the supervisory court and to create, besides the Presidium, some smaller procedural departments, which will be responsible for the prompt supervisory review of cases. Also, there is a need for the top-down inter-institutional interaction and the introduction of the judicial inquiry as an analogue of a constitutional court inquiry. The author underlines the necessity of a universal analytical component in judicial acts of the supervisory instance, which aims at developing the legal positions used by the entire judicial system.

Key words: supervisory-instance court, practice-forming judicial errors, ordinary judicial errors, inter-institutional interaction, analytical component, judicial inquiry

Kuznetsov E. N. (Yekaterinburg) On some matters of executive proceedings on the cases arising from housing legal relations

The article considers single problems of executive proceedings on a socially significant category of cases – housing cases. The main categories of disputes arising from housing relations are listed. The content of the category «adequate housing» is analyzed according to international legal standards. The author assesses the influence of international legal understanding of various legal categories in the sphere of housing legal relations on the Russian Federation legal system.

Key words: executive proceedings, socially significant disputes, right to housing, adequate housing

PROCURACY SUPERVISION

Terent’eva E. E. (Yekaterinburg) The problem of sufficiency of the prosecutor’s powers on the criminal case that has arrived with the bill of indictment

The article draws attention to the fact that, at the present time, the prosecutor is powerless to take certain decisions that previously allowed correcting promptly the violations committed at the stage of preliminary investigation. The author proposes to expand the prosecutor’s powers so he could implement the qualitative and adequate supervision over the legality of decisions of preliminary investigation bodies.

Key words: prosecutor’s powers, criminal proceedings, bill of indictment

LABOUR AND SOCIAL LAW

Zhil’tsov M. A. (Yekaterinburg) On the legal nature of a contract concluded with a head of the economic company

Traditionally, in labour law, labour contracts and agreements to them are not considered as transactions. In the doctrine of labour law, there are the unequivocal approaches to determining the legal nature of the labour contract as an agreement governed by labour law norms; however, judicial practice is not so unambiguous. The Supreme Arbitration Court of the Russian Federation (now abolished as an independent judicial body) gave explanations that the labour contract, concluded with a head of the economic company, can be recognized as a transaction and an interested party transaction as well. The author criticizes this approach because of its contradictions to the labour legislation and gives some relevant examples from judicial practice.

Key words: labour contract, transaction, interested party transaction, economic company

Leskina E. I. (Saratov) On ensuring the labour discipline of a distance worker by the employer’s control means

Distance employment brings forth some practical problems, one of which is ensuring the labour discipline of a distance worker. The most important means of ensuring the labour discipline of distance workers is the employer’s control. The author defines the place of distance employment on the labour market and detects, using the law-enforcement practice, some specific rules of bringing a distance worker to discipline responsibility. She also describes the means of the employer’s control over the labour discipline of a remote worker (in particular, technical means, software).

Key words: disciplinary responsibility, remote work, distance employment, information and communication technologies, Labor Code of the Russian Federation, electronic document circulation

ECONOMICS AND LAW

Strigunova D. P. (Moscow) Discretion of the parties as a condition for using sources of alternative legal regulation of international commercial contracts and the ways in which they can be used

The author identifies the main ways to use sources of alternative legal regulation at the discretion of the parties to international commercial contracts. The article shows that these ways include the incorporation of norms of sources of alternative legal regulation into an international commercial contract and the use of them as an applicable law. The degree of participation of mandatory rules of applicable substantive law in the legal regulation of international commercial contracts is seen as the main difference between the ways mentioned above.

Key words: international commercial contract, source of alternative legal regulation, lex mercatoria, party autonomy, discretion of the parties, incorporation, applicable law

Loginova A. S., Shubina E. A. (Nizhny Novgorod) The provision of electronic public services in the Russian Federation: the problems and their solutions

The article is devoted to the provision of public services in an electronic form that faces the following problems: managerial, organizational, technological and social. The author proposes the main ways of solving these problems, in particular, the evolution of the systems of inter-agency cooperation; the development of the electronic mechanisms involved in the provision of electronic public services; the improvement of the regulatory and legal framework governing the provision of public services; as well as the continuous monitoring of the quality of electronic public services. The problems mentioned above will be solved only if representatives of the government pay sufficient attention to their eliminating.

Key words: public service, electronic public service, public authorities, local self-government bodies, information and telecommunication technologies

PROBLEMS OF LEGAL EDUCATION

Perevalov V. D., Zipunnikova N. N. (Yekaterinburg) Education and science in a global scope: on the history, international cooperation and perspectives of the new partnership of the Ural State Law University

The article addresses the issue of internationalization of the university scientific knowledge and educational practices. Using the cross-cultural approach and certain instruments of its methodology, the authors conceptualize general problems of international cooperation of modern universities as well as some peculiarities of inter-university communications. The practices of international cooperation of the Ural State Law University over the past century are brought together. In particular, the authors show the influence of the education tradition of the Russia Empire on the law faculty of the Irkutsk University; mention the project designed to train jurists for the people’s democracy states in the Sverdlovsk Law Institute; describe international practices of the Ural State Law Academy. The major directions of international communications of the law university are studied. They include the Euro-Asian Law Congress’s activities, the academic mobility of students and postgraduates, the research traineeships abroad, the training of foreign students, the invitation of foreign lecturers, the participation in book-exchange international programs, the organization of international olympiads, education programs, summer schools. The authors assess the strategies and perspectives of the new partnership of the Ural State Law University – the cooperation with the Martin Luther University of Halle-Wittenberg (Germany). The German university, which has a rich history and is well-known beyond its native country, has immediately engaged in inter-university communications with our university in the sphere of scientific cooperation and joint education programs.

Key words: education and science, internationalization, Ural State Law University, history of international relations, training of jurists, academic mobility, international agreements, new partnership, Martin Luther University of Halle-Wittenberg

PAGES OF HISTORY

Sokolova E. S. (Yekaterinburg) The super-estate monarchy: a theoretical model and gnoseological possibilities of its approbation in the history of legal science

The article identifies the historical and legal specifics of the political regime that arose in the course of the formation and development of the state and legal institutions of the Russian autocracy in Modern times. The author describes the way of realization of the sole sovereign state power, formed on the basis of domination of the ruling will of its bearers in all spheres of state administration, as a super-estate monarchy of a paternalistic type with a draft model of allegiance relations, inequality of estate rights and the existence of the legality principle. From the gnoseological point of view, the actualization of the super-estate problems in historical and legal studies is considered as a promising scientific trend, which contributes to determining the socio-political essence of an authoritarian model of the legitimate state influence on society that is a political and legal means of stabilizing authoritative and administrative structures.

Key words: super-estate monarchy, political regime, estate order, allegiance, legitimacy, legal policy

LIBRARY

Review of the book: History of the Russian Procuracy: the textbook / D. V. Kolykhaev, A. E. Sharikhin, N. D. Eriashvili, V. N. Galuzo. – Moscow: Yuniti-Dana, 2018. – 127 p.