№ 6 / 2017

ROUND TABLE «THE CENTENARY OF THE OCTOBER REVOLUTION»

Syrykh V. M. (Moscow) The historical background of the Great October Socialistic Revolution

There is an author’s view of the economic, political and social background of the October Revolution of 1917. He shows that the political regime change became a milestone in the history of Russia both in political and economic terms. In his opinion, the Soviet socialistic state was the first that had succeeded in reaching a development level of the major powers which had a strong impact on the march of history in 20th century.

Key words: Russian history, Great October Socialistic Revolution, economic and political state of Russia, programs of the political parties, ideology of revolutionary changes

Kodan S. V. (Yekaterinburg) Development of Soviet state and law after the October Revolution of 1917: the main instrument and institutions

The author pays attention to the specific features of development of the Soviet state and law. He reveals the ideological foundations as well as the party and state mechanisms and instruments of the state- and law-building. He points out that in 1917 – the beginning of 1980s there were a unique party and state system of management and regulation.

Key words: history of Soviet state and law, communist party, state-building, Soviet socialistic state and law, party affiliation, lawfulness, legal awareness

THEORY OF LAW AND STATE

Stepanov S. A. (Yekaterinburg) Interpretation of an interpretation

A theoretical and partly philosophical analysis of the nature of transformation of law-making thought to legal form is the goal of the article. Rule-making interpretation creates the main element of an objectified legal substance – a rule of law. In the author’s opinion, a primary rule-making interpretation means giving the written form to a wishful or legally assumed behavior and turning words and expressions into a model of future relations. Such an interpretation largely defines subjects, goals, methods, borders and a result of further law-enforcement interpretation. He asserts that in the sphere of public and private law-making the rule-making interpretation is based on some general principles. However, it has its own specific character manifested in its functions, its place in the regulation mechanism, a meaning of law-maker’s will, its borders, forms as well as its dependence on the intention of further enforcement interpretation.

Key words: law-making, law-making process, private law, forms of law, rule-making interpretation, interpretative risks, law-enforcement interpretation

Puchkov O. A. (Yekaterinburg) Judicial interpretation acts in Russian law: the legal and hermeneutical aspect

The article is devoted to the theoretical and applied issues of understanding of interpretation acts in Russian law. Relying on an analysis of existing theoretical and legal concepts, the author offers his own vision of technical, legal and hermeneutical aspects of interpretation acts. He believes that, as applied to legal science and practice, hermeneutics is one of the methodological foundations of law as a social reality and formulates a new definition of a law-enforcement act in the light of hermeneutic theory. The article notes that interpretation in law is an intellectual and strong-willed activity of various subjects aimed at understanding and explaining the meaning of a legal norm, which is impossible without taking into account relevant phenomena and processes of a social reality and the particular case. A judicial interpretation act is considered as a court decision used for understanding of a meaning and maintenance of legal provisions.

Key words: hermeneutics, interpretation, methodology, judicial act, interpretation act

Tarasov N. N. (Yekaterinburg) An object and a subject of science as the methodological issue of nowadays jurisprudence

The author says about how an object and a subject of science are interpreted within the tradition of methodological science and modern jurisprudence, reveals the basic positions of legal scholars concerning this problem as well as possible approaches to grounds and ways of making distinction between the object and the subject of legal science. He notes that these distinctions are of great significance for different kinds of legal research.

Key words: science, jurisprudence, subject, method, methodology, theory, definition, doctrine, dogma, law, legislation, practice

PUBLIC ISSUES AND POLITICAL SCIENCE

Palermo F. (Bolzano, Italy) Territories, ownership, minorities: back to basics and the way forward

The modern approaches to territorial autonomy in the Western constitutional law and political science and in documents of international bodies (especially the Venice Commission) are discussed in the article. The author criticizes the «ethnic» approach to territorial autonomy based on recognition of a national minority group’s right to «possess» their «own» territory and argues that such an approach is gradually substituted by the «territorial» approach under which territorial autonomy is thought as a means of peaceful co-existence of different ethnic groups in a common geographical space.

Key words: autonomy, territorial autonomy, territorial structure of state, national minorities, ethnic groups, ethnic diversity

Chebotarev G. N. (Tyumen) Public representation as a type of representative democracy

The article attempts to determine an essence and maintenance of the concepts «public representation» and «public power». The author analyzes some peculiarities of the formation of public representative bodies, investigates the mechanism of empowering them with public authority. At the same time, special attention is paid to the implementation of public power by public chambers, public councils and other public bodies as a mode of public authority.

Key words: public representation, public power, public chambers (councils), public interest, confidence

INTERNATIONAL LAW

Farkhutdinov I. Z. (Moscow), Chattaev A. R. (Nalchik) A preventive military strike: the right or the extreme urgency

The article deals with the problem of preventive self-defense through preemptive and anticipating military strikes. The right of States to preemptive actions for self-defense in various forms is permissible under Art. 51 of the UN Charter. However, the United States and its direct allies are imposing a broad interpretation of this provision on the world community. In the authors’ opinion, the UN Security Council should act ahead of time, and those states that are afraid of remote military threats are obliged to bring the available information to the Security Council, and then strictly follow its instructions. Otherwise, mankind will return to the right of war, which had prevailed before the United Nations Charter was adopted on the results of two world wars and outlawed the right to war.

Key words: Article 51 of the United Nations Charter, international security law, preventive military strike, self-defence, use of force or threat of force

COMPARATIVE JURISPRUDENCE

Savitskiy P. I. (Yekaterinburg) The constitutional-law regulation of the structure of houses of parliament in France and Belgium: the comparative analysis

The author considers some issues concerning the structure of houses of parliament in France and Belgium. He examines the procedure of formation of these bodies (the election of presidents of houses and permanent bureaus, the formation of parliamentary groups and confederations of presidents), and shows their importance for the activities of houses of parliament. A special attention is paid to constitutional rules and provisions of the regulations of houses of Belgian parliament related to the repartition of deputies and senators by two linguistic groups: those who speak French and those who speak Dutch.

Key words: France, Belgium, parliament, houses of parliament, bodies of houses

Bogatyreva O. N. (Yekaterinburg) Decentralization and regionalization in France: the main stages

The article discusses the features of decentralization and regionalization in France which is a country with a long tradition of centralism. The author distinguishes three stages of decentralization, analyzes the maintenance of each one and identifies the key issues arising out of this process. Special attention is paid to the Law on a new territorial organization of the Republic adopted in 2015. Actually it has become a pinnacle of the current stage of decentralization and regionalization in France.

Key words: France, territorial administration, decentralization, regionalization

CRIMINAL LAW AND PROCEDURE

Kozachenko I. Ya. (Yekaterinburg) The psychological problems of social adaptation of persons convicted to deprivation of liberty

Social adaptation of convicts is one of the priorities of the current penal policy. The author thinks that, in the procedure of enforcement of criminal punishments related to deprivation of liberty, there is a unsolved issue on how to optimize the ratio of the punitive and curative components. In fact, it requires further improvement of the correction mechanism and strengthening of a motivational force to be law-abiding.

Key words: social adaptation, socialization, psychological factors, persons convicted to deprivation of liberty

Sharapov R. D. (Tyumen) The existing and emerging problems of the Russian criminal punishment system

The article analyzes the traditional and emerging problems of the Russian system of criminal punishments, in particular the inefficiency of an arrest, the absence of exceptional punishment measures in the penal system and the appearance of «illegal» types of criminal punishment. The author proves that the arrest could be an effective preemptive way to combat non-trivial domestic violence; he also offers to introduce an exceptional punishment measure – life imprisonment without the possibility to release. Besides that, he analyzes in detail the punitive and restoring force of the rule on exemption from criminal liability in cases relating to economic crimes.

Key words: criminal punishment, punishment system, exceptional measure, arrest, release from criminal liability

Neznamova Z. A., Melyukhanova E. E. (Yekaterinburg) The concept of human capital in imposing criminal punishment

The article is devoted to the concept of human capital and prospects of its use in criminal law. It is necessary to take into account a level of human capital when imposing criminal punishment and determining its kinds and measures. The authors come to a conclusion that the main provisions of the concept of human capital should be considered when imposing criminal punishment because this contributes to making any criminal punishment more efficient and achieving its goals as well as to social well-being.

Key words: concept of human capital, index of human capital, criminal law, criminal punishment, imposition of criminal punishment, efficiency of criminal punishment

Balakshin V. S. (Yekaterinburg) To the fate of further investigation in the Russian criminal procedure

The author analyzes the rules of the RSFSR Criminal Procedure Code devoted to further investigation and points out its importance in correcting errors made by the preliminary investigation bodies. He also considers different doctrinal views on this matter, the results of generalization of judicial practice and the current RF Criminal Procedure Code. In the end, he says about the need to revert the institution of referring a criminal case back to a prosecutor for further investigation.

Key words: accused, defendant, further investigation, elimination of violations of criminal procedure law

Shiryaev A. Yu. (Kushva) Social danger and unlawfulness of a crime: the correlation and assessment issues

The author analyzes the correlation between social danger and unlawfulness and their place in the structure of criminal offence and the structure of criminal-law assessment. He attempts to overcome traditional perception of the correlation between social danger and unlawfulness as between purely material (social danger) and formal (unlawfulness) signs of criminal offence. As a result he mentions that social danger on its own will have no particular criteria until the relations regulated by law have been analyzed in a wider juridical context. In the author’s opinion, this correlation could be matched with the categorical correlation between an abstract principle and a substance of particular relations. Focusing on a nature of current criminal-law regulation the author asserts that the concept of unlawfulness needs further development and should be recognized as a sign of criminal offence that requires a specific verification during the criminal-law assessment of an act.

Key words: social danger, unlawfulness, act, crime, criminal offence, crime, sign of criminal offence

QUESTIONS OF INVESTIGATION AND OPERATIVE RESEARCH ACTIVITY

Drapkin L. Ya. (Yekaterinburg) The amendments to criminal procedure laws and the efficiency of crime detection

The author discusses some controversial amendments to the Russian Criminal Procedure Code, in particular the expansion of a scope of Art. 144 and the allocation of receiving information on connections between subscribers and (or) subscriber devices (Art. 1861) into the category of procedural actions. The author underlines that these amendments significantly increase the efficiency of crime detection and interaction of agencies responsible for conducting initial inquiries and investigations. He asserts that it is necessary for investigators to be creative in order to use all the opportunities provided by these amendments.

Key words: procedural amendments, crime detection, crime investigation, efficiency of proving, users’ apparatuses, receiving of information

Belyakov A. A., Deryugin R. A. (Yekaterinburg) Some issues of the assessment and use of information on connections between subscribers and (or) subscriber devices in crime detection

The article discusses some problems of the use of information on connections between subscribers and (or) subscriber devices by law enforcement agencies when disclosing and investigating crimes. The authors analyze a number of examples of judicial practice and focus on the ambiguous and complex issues arising from implementation of the investigative action provided by Art. 1861 of the RF Criminal Procedure Code, and make recommendations to address them.

Key words: cellular communication, subscriber, subscriber’s device, communication operator, information, investigator, detailing

ADMINISTRATIVE LAW AND PROCEDURE

Domchenko A. S. (Chelyabinsk) Normativity of an administrative act

The author proposes a new approach to determining the structure of a rule of administrative law and gives a definition of normativity. Particular attention is paid to a number of «problematic» documents of public administration which are difficult to attribute to normative legal acts.

Key words: normativity, structure of a norm of administrative law, administrative norm-setting, program acts and standards of public administration, letters of executive authorities

LABOUR AND SOCIAL LAW

Zhiltsov M. A. (Yekaterinburg) The law-enforcement faults in setting labour disputes

The author defines the concept of law-enforcement faults and designates the features of such faults in labour law. He uncovers the reasons of these faults and pays special attention to unduly wide courts’ interpretation of Art. 76 of the RF Labour Code and the concept of an abuse of rights by en employee.

Key words: fault, law-enforcer, practice, abuse of rights, labour disputes

Pogosyan T. Yu., Pogosyan E. V. (Yekaterinburg) Some issues of applying the laws on the allocation of maternal funds to improve housing conditions

This article is devoted to the topical issues of applying certain legislative provisions on the allocation of maternal (family) funds to improve housing conditions in court practice as well as to the issues of illegal use of the maternal (family) funds. The authors propose to eliminate or enlarge the rules of law that regulate particular directions of allocating maternal (family) funds in order to prevent the involvement of families in the fraudulent schemes.

Key words: maternal (family) funds, disputes related to the exercise by citizens of rights to maternal (family) funds, cashing out of maternal (family) funds

ECONOMICS AND LAW

Murzin D. V. (Yekaterinburg), Olkhovsky R. M. (Moscow) Legal aspects of the regulation of community services in the field of physical culture and mass sports

The authors present the legal and economic analysis of community services in the Russian legislation. They propose a number of clarifying amendments to the list of community services in the field of physical culture and sports. Some troubles of legal qualification and classification of community services in the field of physical culture and mass sports are revealed.

Key words: community services, physical culture, mass sports, public function, social services

SPECIAL CASES

Vinnitskiy D. V. (Yekaterinburg) Application of international agreements on the avoidance of double taxation to withholding tax on agency fees

The article is devoted to the analysis of cross-border tax dispute which has been connected with the issues of scheduling income derived from an agency fee, as well as with the issue of interpretation of the term «income from employment» (Art. 15 of the OECD Model Tax Convention on Income and on Capital). The options for qualification of the respective income in line with Art. 21 «Other income» or Art. 14 «Independent personal services» are also under discussion.

Key words: international taxation, withholding tax on agency fees, tax agreement, OECD model tax conventions

LEGAL EDUCATION

Perevalov V. D. (Yekaterinburg) Methodology of legal education: the sources and stages of development

The article considers the genesis of legal education methodology and reveals the historical aspects of it. The author reviews the discussions, held on this matter in different periods, and summarizes his reflections with didactic mottoes. He also gives a brief overview of modern methodological approaches and means applied to legal education.

Key words: methods, methodology, education, training, knowledge, cognition, law, legislation, educational traditions, educational innovations

Yushkova N. A., Fedeneva Yu. B. (Yekaterinburg) The importance of reading in the modern legal education

Reading is considered as a mechanism of formation of professional and general competences of law students in the context of Federal State Educational Standard requirements related to the graduates training quality. The authors analyze the results of their own overture research of students’ reading competence, which identified their range of reading, readers’ preferences and value orientations. The authors bring out some negative trends inhibiting the formation of personal professional competences of students in contemporary social and cultural circumstances.

Key words: professional and general competences of law students, reading, reading competence, range of reading, existential reading, readers’ preferences and value orientations

MUSEUM OF HISTORY OF SLI – USLA – USLU

Towards the 100th anniversary of the University

Zipunnikova N. N., Kalinina A. V. (Yekaterinburg) «In the first year the historical and philological and the law faculties are starting out…», or on the foundation of the law faculty in the Irkutsk State University in the context of documents

The authors reveal a number of features of the foundation of the law faculty in the Irkutsk University that was an organizational scientific and research institution which gave rise to legal education at first in Eastern Siberia and then in the Urals region. A few documents extracted from the regional archive are examined in the light of a common issue concerning the sources of studying the university history and the history of legal education. The authors mark some challenges that are inevitable when opening a university and its faculty. They concerned, in particular, the regulatory support of university and faculty activities, infrastructure arrangements, teaching staff, admission, organization of educational process.

Key words: Irkutsk State University, law faculty, grand opening, archive document, «White House», principal, dean, professors, library, educational process

LIBRARY

From the sources of Russian law to studying the history of Russian state and law (Review of the book: History of native state and law: the textbook for seminars: in 2 parts / G. M. Davidyan, O. I. Kupriyanova, T. E. Novitskaya, P. L. Polyanskiy, ed. by T. E. Novitskaya. – Part 1 – Moscow: Norma: INFRA-M, 2016. – 640 p.; Part 2 – Moscow: Norma: INFRA-M, 2017. – 736 p.)