№ 5 / 2017

THEORY OF STATE AND LAW

Sergeev A. A. (Moscow, Academy of Labour and Social Relations, e-mail: ufatiso@yandex.ru) The sources of Russian law: issues of classification and some tendencies of development

Topical issues of classification of the sources of Russian law are considered. The author analyzes judicial law-making, private law-making authorized by the state, normative and technical acts as the sources of law. He underscores the need to clearly delineate separate types of the sources of law which have a different nature and legal essence.

Key words: source of law, judgment, normative legal normative act, local act, normative and technical act

Mukhametzaripov I. A. (Kazan, Tatarstan Academy of Sciences, e-mail: muhametzaripov@mail.ru) The religious and legal norms in the Russian Federation: the examples of cooperation and competition

The author pays attention to the problem of relations between religious norms and secular legislation in the Russian Federation. There are the examples of both positive interaction and competition, offence-related conflicts between these two types of norms. The author analyzes the issues related to the waqf property, polygamy, child marriage, wearing of religious clothing in state and municipal schools of general education, religious cemeteries, female circumcision, and the use of violence by individual members of ethnic and religious communities. The article reveals the law enforcement practice and gives examples of the decisions of courts of general jurisdiction, arbitration courts, the Constitutional Court of the Russian Federation. It raises problems of subjective and distorted interpretation of the religious norms by some believers, which could be overcome through close collaboration between religious communities and the state within the system of religious education as well.

Key words: law, religious norms, state, religious communities

Akimova Yu. A. (Moscow, Institute of Additional Professional Education for Social Workers, e-mail: akimul2015@gmail.com) The well-established principle of gender equality in the light of gender theory

The article reveals the content of the fundamental principle of gender equality in accordance with the provisions of gender theory. It quotes a number of Russian and foreign scientists who studied the concept of gender and sex and the correlation between them. The author shows that in Russian jurisprudence the concept of gender is actually identified with the concept of sex, and the whole gender approach is solely reduced to the «women’s issue». However, today the category of sex has become more complex and the subject of gender studies runs deeper than the formal inequality of men and women and includes also gender relationships, differences and similarities of genders, gender’s representation in culture. The author refers to UN and CE documents concerning gender equality and comes to the conclusion that this principle couldn’t be limited to guaranteeing the women’s rights and covers much more aspects, in particular the rights of sexual minorities.

Key words: principle of equality, gender, gender equality, LGBT

PUBLIC ISSUES AND POLITICAL SCIENCE

Lazutin L. A. (Yekaterinburg, Ural State Law University, e-mail: mp@usla.ru) International security: contemporary practices and international law

The article researches the current international environment and the role of international law as a regulator of international relations, especially in international security law. The author underlines the need to create new approaches to the correlation between international and national systems in today’s multipolar world.

Key words: international relations, international law, security, security systems, international organizations

Antonov Ja. V. (Saint-Petersburg, North-West Institute of Management, branch of RANEPA, e-mail: antonovjv@gmail.com) Political and legal problems of the development of the e-democracy concept in Russia and CIS countries

The article analyzes some issues of the development of the e-democracy concept in CIS states, first and foremost in Russia. It points out that the concept of e-democracy is complex and multidimensional, has no general meaning and often identified with the concepts of e-government and e-government or associated exclusively with the regulation of the Internet without understanding the need for institutional changes and the formation of information and legal culture. In the Russian Federation, there are a number of problems associated with the development of e-democracy: the existence of a multitude of state structures with related functions, the lack of meaningful and systemic legal regulation, the inconsistency of certain legal acts, the confusion of concepts of information technology, information and communication technologies and information and telecommunication technologies, the lack of a legal definition of e-democracy. The article presents the analysis of Strategies for the Development of the Information Society in 2018–2030. The author concludes that the developer of the Strategy seems not to understand the concept, structure, principles of the development of e-democracy, the methodology of regulation of the virtual information space. He underscores the need to change approaches to information security as exclusively a public sphere. According to the author, self-regulation in the Internet and systematic information and legal education could be an optimal alternative to strict state regulation in this field.

Key words: e-democracy, e-voting, information and communication technologies, information and legal space, e-voting, information security, self-regulation, e-governance, e-government

INTERNATIONAL LAW

Vedel’ I. A. (Yekaterinburg, Ural State Law University, e-mail: igor_wedel@rambler.ru) Judicial practice on diplomatic protection and consular assistance: the international and national aspects

The article discusses the decisions of the International Court of Justice, which have a great significance for diplomatic protection and consular assistance, the judicial practice of the European Court of Human Rights, as well as some of the decisions of Russian courts affecting the provision of consular assistance to Russian citizens abroad.

Key words: judicial practice, International Court of Justice, European Court of Human Rights, diplomatic protection, consular assistance, protection of the rights of citizens abroad

Gusev A. V. (Yekaterinburg, Ural Law Institute of the Russian Interior Ministry, e-mail: gusev.1983.av@mail.ru) Improvements in the departmental regulation of implementing the international obligations of Russia in the RF Ministry of Internal Affairs system

The article researches the normative and law enforcement issues concerning the international legal work and international cooperation of the Ministry of Internal Affairs of Russia, as well as the implementation of international obligations provided by international treaties of Russia. The author provides suggestions for how to improve the regulation of organizational and administrative activities of the divisions of the Ministry of Internal Affairs of Russia engaging in the international cooperation. In his opinion, there is the need for a detailed regulation of functions of the bodies, organizations and divisions of the Ministry of Internal Affairs of Russia related to implementing the international obligations of the Russian Federation within their own powers. This should be done at the level of departmental rule-making (orders of the Ministry of Internal Affairs of Russia) and within the general mechanism fixed at the subordinate level.

Key words: Ministry of Interior Affairs of Russia, international treaty, international obligations of the Russian Federation, implementation of international obligations

CONSTITUTIONAL LAW AND PROCEDURE

Dobrynin N. M. (Tyumen, University of Tyumen, e-mail: belyavskaya@partner72.ru) On the constitutional model of delimitation of jurisdictions and powers in Russia: an experience in synthetic comprehension of subsidiarity

The author reflects on the current territorial structure of Russia taking into account the existing views on the meaning and current implementation of the subsidiarity principle within the territorial structure of different countries, as well as the scientific and philosophic legacy of the outstanding Russian thinkers and public figures. He shares the leading scientists’ opinion about the nature and role of the subsidiarity principle in delimitation of powers and jurisdictions of public authorities and highlights the key issues of searching and achieving an optimal balance in delimitation of powers and jurisdictions of the Russian Federation, its subject and local self-governance. The author assumes that when the subsidiarity principle is being implemented there should be no extremums both of the centralization, which is an inherent tendency of any state, and the decentralization which could result in dissemination of the state. He concludes that the search of an optimum balance in spreading the scope of public liabilities is permanent and kept on an ongoing basis; that’s why it is of the highest importance to renovate the idea of subsidiarity when one can see an exceeding centralization in today’s Russia.

Key words: territorial structure of a state, federalism, subsidiarity principle, public authority, delimitation of powers and jurisdictions

Usol’tsev M. M. (Yekaterinburg, Ural State Law University, e-mail: dobro2311@mail.ru) The principle of procedural economy in constitutional proceedings of Russia: should it be legislated?

The article deals with the principle of procedural economy and its establishment in the legislation on constitutional proceedings. It presents different scientific approaches to understanding of this principle and author’s own interpretation of it. The relationship between the principle of procedural economy and the reasonable time of court proceedings is analyzed. There are some examples of various legislative rules reflecting the principle of procedural economy.

Key words: constitutional litigation, constitutional proceedings, principles of law, principles of constitutional litigation, principle of procedural economy

LOCAL SELF-GOVERNMENT AND MUNICIPAL LAW

Selikhova O. G. (Moscow, Plekhanov Russian University of Economics, e-mail: og_selihova@mail.ru) The issues of peremptory reassignment of powers of local self-governance in Russia

The article deals with the authority of the people as one of the constitutional grounds of Russia which develops the structure of its public authority. The author points out that the recent changes in assignment of powers of state authorities and local self-government authorities could crucially modify the public authority mechanism and could result in a redundant state control over local self-governance and a continuing reduction of its role in civil society. She analyzes the rules of the Russian Constitution and laws on local self-governance as well as the legal positions of the RF Constitutional Court and, keeping this in mind, investigates the issues of transferring the powers from local self-government authorities to state authorities of the RF subject, the impact of this process on the constitutional structure of public authority in Russia.

Key words: reassignment of powers of local self-governance, nature of municipal authority, local state authorities, constitutional structure of public authority

CRIMINAL LAW AND PROCEDURE

Khilyuta V. V. (Republic of Belarus, Grodno, Yanka Kupala State University of Grodno, e-mail: tajna@tut.by) Theft and transformation of its signs in criminal law

The author argues that the signs of theft stipulated by penal laws are not substantiated enough due to current transformation of a subject of crime in criminal law, and describes a theory of criminalization of socially dangerous activities in the property sphere. He proposes a new conception of the subject of theft taking into account its tangible nature, determines the methods of theft in relation to the subject of crime and characterizes their peculiarities that help to systemize the forms of theft depending on similar bases and stable objective signs. The author makes some recommendation on the enhancement of certain norms containing in Chapter 21 of the RF Criminal Code and on further improvement of law enforcement.

Key words: theft, crimes against property, property crimes, signs of theft, economic crime

Sheveleva S. V. (Kursk, Southwest State University, e-mail: decan46@yandex.ru), Mus’yal I.A. (Kursk, Southwest State University, e-mail: ssh46@rambler.ru) The criminal and legal characteristic of scientific fraud

The authors consider the concept of scientific fraud and related categories. They assert that criminal norms on special types of fraud don’t stipulate the liability for fraud or abuse of trust in the scientific field, and it is quite true because the concept of scientific fraud is less criminal than criminological. At the same time, it is necessary to provide for a criminal and legal assessment of fraudulent actions in obtaining grants or state assignments. The authors point out that Art. 1592 of the RF Criminal Code has the abortive wording that excludes certain types of state support not obtaining an explicit social nature (including grants) from the offenses subject to this Article. As a result, there is a controversial practice when identical criminal assaults have a different legal assessment or go unpunished.

Key words: scientific fraud, plagiarism, grant, state support, social sphere

Borovkov A. A. (Krasnoyarsk, Law Institute of Siberian Federal University, e-mail: borovkov.aa@yandex.ru) On the compliance of legal description of business fraud with the constitutional principle of equality of all before the law and the court

The article analyzes the legislative amendments on criminal liability for fraud in business activities. The author wants to know whether the provisions of pp. 5–7 of Art. 159 of the RF Criminal Code comply with the constitutional principle of equality of all before the law and the court. The author notes that in the framework of limits differentiating liability the business entity is responsible for fraud depending only on the amount of damage, while the liability of the person committed usual fraud depends not only on the amount of damage, but also on other constituent elements of the offence. The author substantiates his own understanding of the mentioned problem basing on the current legislature, law enforcement practice and doctrine.

Key words: business fraud, constitutional principle of equality of all before the law and the court, constituent elements of the offence, crime situation, amount of damage

Smirnov A. M. (Moscow, Scientific Research Institute of the Federal Penitentiary, e-mail: vipnauka@list.ru) On the need for imposing criminal punishment above the highest limit

The author argues that it is necessary to state in laws the imposition of criminal punishment above the highest limit, and proposes to include Article 64.1 in Chapter 10 «Appointment of punishment» of the RF Criminal Code. According to this new article, if there are the exceptional circumstances related to purposes and motives of a crime, a role of a perpetrator, his conduct during or after the commission of a crime, and other circumstances significantly increasing public danger of a crime, it is possible to impose punishment above the highest limit provided by the relevant article of the Special Part of the Criminal Code. Herewith, as the author thinks, the exceptional circumstances include certain aggravating circumstances or the combination of them.

Key words: criminal policy, Criminal Code of the Russian Federation, imposition of punishment, aggravating circumstances, social justice

CIVIL LAW AND PROCEDURE

Mayfat A.V. (Yekaterinburg, Ural State Law University, e-mail: am@urallaw.ru) A trial penalty: a few issues of theory and law enforcement

The author analyzes the Art. 308.3 of the RF Civil Code. He raises a number of legal problems related to the recoverability of a so-called trial penalty or «astreinte». In particular, the author examines the ratio of the principle of specific performance and the liability for default specific performance, and wants to find out whether the trial penalty could secure a monetary obligation. The grounds for applying the trial penalty are investigated. The author considers separate judicial acts concerning the recovery of the trial penalty and its limits. Also he concludes that the trial penalty has a civil nature.

Key words: judicial penalty, «astreinte», specific performance, monetary obligation

Shtykov V. P. (Vladivostok, Vladivostok State University of Economics and Service, e-mail: evolution66666@yandex.ru) Restriction of the active capacity due to the propensity for gambling

The article analyzes the current legislative provisions restricting the citizens’ active capacity due to his propensity for gambling. There is a problem of dependence on gambling, which is still of high relevance in the Russian Federation. The author highlights the need to change both the legislative and law enforcement approaches to restricting the active capacity due to the propensity for gambling.

Key words: gambling, restriction of the active capacity, propensity

Kuznetsov E. N. (Yekaterinburg, Ural State Law University, e-mail: Corben2002@mail.ru) Self-protection of the right to voluntary execution of obligations

The author points out that the right to voluntary execution is a constituent part of a broader legal category – the right to execution. Self-protection of the right to voluntary execution of obligations allows implementing jurisdictional and other aspects of the mechanism of protection of rights, freedoms and legal interests.

Key words: right to voluntary execution, right to execution, execution of obligations, self-protection, execution procedure

Razdyakonov E. S. (Yekaterinburg, Ural State Law University, e-mail: E.Razdyakonov@gmail.com), Tarasov I. N. (Yekaterinburg, Ural State Law University, e-mail: razes82@gmail.com) Topical issues of proceedings on the cases on the issue of writs of execution for a forcible execution of the tribunals’ decisions

The article deals with the procedural issues regarding the pre-trial dispute resolution and the absolute grounds of refusal to issue a writ of execution for a forcible execution of the tribunals’ decisions. The authors come to the conclusion that there are no grounds for complying with the order of pre-trial dispute resolution when one applies for the issue of a writ of execution. If there are grounds for resolving a dispute as a class action this excludes the legitimacy of arbitration proceedings in such dispute.

Key words: pre-trial procedure, arbitration, corporate dispute, group of persons

ADMINISTRATIVE LAW AND PROCEDURE

Rublev A. G. (Yekaterinburg, Ural Law Institute of the Russian Interior Ministry, e-mail: andrewrublev@bk.ru) The problems of qualification of traffic violations by a person subjected to administrative punishment

The author proposes to entrench, by using the administrative prejudice, the criminal liability for repeat failure to comply with traffic regulations about prohibition to a driver to drink alcoholic beverages, to take narcotics or psychotropic substances after a road traffic accident in which he has participated or after the transport vehicle has been stopped by a police officer.

Key words: administrative prejudice, criminal liability, examination, intoxication, driving

Yarkovoy S. V. (Omsk, Arbitration Court of the Omsk Region, e-mail: om.as@yandex.ru) The legality and expediency of administrative law enforcement

The article discusses the concept and content of the expediency of legal acts and legal actions enacted (performed) by the executive authorities and other bodies of public administration as one of the characteristics of administrative law enforcement. The author distinguishes and analyzes the conditions under which administrative legal acts are considered expedient and, thereby, don’t exceed the limits of legal regime.

Key words: administrative law enforcement, administrative and public authority, legality, expediency

ECONOMICS AND LAW

Belykh V. S. (Yekaterinburg, Ural State Law University, e-mail: belykhvs@mail.ru), Panova A. S. (Kazan, Kazan Innovative University named after V. G. Timiryasov, e-mail: albina_2005@rambler.ru) Technical regulation in Russia: the current state and development prospects

The article is devoted to the main directions of enhancing technical regulation in Russia. The authors mention that the issues of safety and quality of goods shouldn’t be heavily regulated in the system of technical regulation; however, the broadening of self-regulation in this sphere is also inadmissible. Therefore, the authors make a number of conclusions concerning the methodology of formulating the requirements of technical regulations; the implementation of technical regulations by using the standards and other documents on standardization; the use of references to national standards in normative legal acts, etc. The article shows that it is quite important to step up the expertise activity on matters relating to technical regulation of economics.

Key words: technical regulation, standardization, economics and entrepreneurial activity, reform of technical regulation

Kurochkin D. A. (Yekaterinburg, Ural State Law University, e-mail: den.al.kurochkin@gmail.com) Mediation in tax disputes: development prospects in Russia and other BRICS countries

The author considers the legislative preconditions for the use of mediation procedures in resolving tax disputes in Russia, as well as doctrinal and practical approaches to reconciling a tax authority and a taxpayer when tax disputes are resolved inside and outside court proceedings. The author analyzes the foreign experience of applying various forms of tax mediation and provides justification for its institutionalization in Russia and for converging different approaches used by the BRICS countries to non-trial reconciliation in tax disputes. Actually the development of institutes of tax advisers and tax ombudsmen would help achieve these goals.

Key words: mediation, conciliation procedures, settlement agreement, tax disputes, BRICS

LEGAL HERITAGE

Ural scientific school of law

V. P. Reutov on the concept of juridical practice

LIBRARY

Review of the book: Drapkin L. Ya., Dolinin V. N., Shuklin A. E. Investigation of serial murders: the textbook. – Yekaterinburg: Ural State Law University Publishing House, 2016. – 152 p.