№ 2 (131) / 2020

INTERNATIONAL LAW

Amirov D.  (Moscow) The legal assessment of the United States actions against Russian consular posts in San Francisco and Seattle

The article provides the legal analysis of the closure of Russian consular posts in San Francisco and Seattle. The legal assessment is given to the following actions of the U. S. authorities: the request for the closure of consular posts; the intrusion into consular premises and consular employees’ living quarters; the acquisition of consular archives; the removal of Russian national flags. The author carefully examines the status of premises of the closed consular posts. The intrusion of the U. S. authorities into the premises of the closed Russian consulates is considered as a blatant violation of international law. The subsequent prohibition on the use of that premises is commented. The author, based on the analysis of American law and judicial practice, concludes that the United States intentionally acts in so stringent way in order to prevent the Russian Federation from exercising the property rights to its real estate. It’s summed up that the U. S. side didn’t comply with its international obligations, which resulted in a violation of certain consular immunities. In conclusion the author indicates possible ways of protecting the violated rights by the Russian Federation.

Key words: law of foreign relations, consular law, consular post, inviolability of consular premises, consular archives, American law

Khalafyan R. (Yekaterinburg) To the performance of international rules in good faith by the Constitutional Court of Russia

The article, on the example of some rulings of the Constitutional Court of Russia, considers the question of the fair and effective implementation of the provisions of international legal and other acts which form the basis of the legal reasoning of the Court. The author raises concerns that the superficial, ambiguous and biased interpretation and application of international rules and regulations are quite possible, given a wide and varied treatment of international standards in constitutional justice. Such policy impedes the implementation of international law and is equivalent to its non-compliance. The methods of unfair use of international obligations by the Constitutional Court of the Russian Federation are listed. It is concluded that there is a negative practice at all stages of the authority’s work with international instruments (the selection, citation, interpretation, etc.). The possible reason for such treatment of international law is mentioned. The consequences of the unfair application of international instruments for international and domestic law are indicated.

Key words: Constitutional Court of the Russian Federation, international law, domestic implementation, good faith principle, counter-terrorism measures, European Court of Human Rights, right for referendum, restriction of human rights, Görgülü case

Mammadov U. (Kazan) The role of courts in enforcing international humanitarian law during and after armed conflicts with terrorist groups (the end)

The modern armed conflicts often involve organised armed groups including terrorist groups, and such conflicts are in many cases accompanied with the violations of international humanitarian law and human rights that raises deep concerns of the international community. The author examines certain issues of the enforcement of international humanitarian law during and after armed conflicts with terrorist groups in the context of international law, and formulates some conclusions and suggestions. He considers certain norms of international law and, on this basis, concludes that there are some gaps and matters in the enforcement of international humanitarian law during and after armed conflicts with terrorist groups; he puts forward some assertions on the role of courts in strengthening the compliance of such groups with international humanitarian law.

Key words: armed conflicts, international humanitarian law, terrorism, terrorist groups, organised armed groups, courts, law of armed conflict

PUBLIC ISSUES AND POLITICAL SCIENCE

♦ V. I. Lenin on the role of the socialist culture in building socialism (an interview with V. M. Syrykh)

There is an interview with one of the leading researchers of state and law V. M. Syrykh on the occasion of the 150th anniversary of the V. I. Lenin’s birth. It is emphasized that the opinion of Soviet ideologists about the successful building of socialism by Soviet society is untenable. A systematic analysis of V. I. Lenin’s works prepared in late 1922 – early 1923 shows that socialism cannot be built until society and officials have acquired the socialist culture. V. I. Lenin argued for the universal literacy, collectivisation of the peasantry, democratisation of the leadership party bodies, eradication of bureaucracy, red tape, and neglect of the people’s rights and interests. However, successors of the party leader followed only one his recommendation on the development of popular education. It is concluded that, until its break-up, the Soviet Union had been not a socialist society, but a society of state capitalism, which did not fully acquire the socialist culture.

Key words: V. I. Lenin, socialist society, socialist culture, communist party, Soviet state, cooperation, education

Kodan S. (Yekaterinburg) V. I. Lenin’s works in political, cultural and scientific practices of the Soviet times

The article actualizes the problem of studying ideological, political, cultural and scientific practices of investigating the personality, activities and heritage of V. I. Lenin. The author thinks that post-Soviet researchers, when studying the use of the «Lenin’s capital» by the party and the state, should take into account the epoch in which it appeared, was interpreted, and introduced for the further scientific research.

Key words: Lenin’s heritage, theory of state and law, history of the Soviet state and law, history of political and legal doctrines, legal source study

Dobrynin N. (Tyumen) Russian federalism and federation: a conjunction of meanings and realities

The author analyses the juxtaposed meanings of federalism and federation in the context of an outlook paradigm of the Russian social and political studies, as well as in the scope of general theory of systems. It is noted that any federative system are subject to the permanent external and internal influences. The author highlights that a more comprehensive implementation of the subsidiarity ideas in the national federative practices are required in order to meet challenges that Russia has been facing recently.

Key words: federalism, federation, state-territorial structure, state sovereignty, subsidiarity, integrity

COMPARATIVE JURISPRUDENCE

Pilikina M. (Yekaterinburg) The concept of damages, the aim of their compensation and the protected interests in terms of the Russian and Anglo-American contract law approaches

In Russian civil law, a comprehensive understanding of damages and their compensation is still evolving. The author refers to the legal comparative method in order to study the notion of «damages», the aim of their compensation and the types of interests which are protected while compensating damages, in terms of Russian and Anglo-American contract law approaches. She identifies some differences between these approaches, which concern the extent of damages and the assessment of the aim of damages compensation as a punishment. The most essential differences are connected with the types of interests which are protected while compensating damages. The author concludes that it is possible to expand the list of protected interests in Russian contract law through the implementation of an opportunity to compensate the reliance interest, based on the experience of the Anglo-American legal system.

Key words: damages, harm, compensation, expectation interest, reliance interest, restitution interest

CONSTITUTIONAL LAW AND PROCEDURE

Konovalova L. (Barnaul) Constitutionalism as a manifestation of the rule of law in the Russian Federation

The article concerns constitutionalism as a modern aspect of the implementation of the rule of law. It is considered as a political and legal regime based on the recognition of the supremacy of the constitution, a political system, a doctrine of the constitutional values, and a requirement to ensure the supremacy of the constitution in the current legislation. The author describes the specifics of the legal consolidation of constitutionalism in Russia, and considers the problem of the supremacy and direct effect of the Constitution of the Russian Federation. Based on the analysis of scientific literature, she reveals some signs of constitutionalism, which largely overlap with the particularities of the rule of law. Attention is paid to the discussion about whether it is necessary to amend the Constitution of the Russian Federation. The author favors the stability of the Constitution text, and refers to the doctrine of «unconstitutional constitutional amendments» that is actively developed abroad. The development of constitutionalism in Russia is associated with the constitutionalisation that means the implementation of the basic constitutional values in the special branch legislation. The problem of the so-called «global crisis of constitutionalism» is touched upon; however, the need to protect the postulates of constitutionalism is underlined.

Key words: rule of law, constitutionalisation, constitutionalism, direct effect of the constitution, higher legal force of the constitution

Plotnikova I. (Saratov) Constitutional and legal policy in the sphere of the implementation of the right to business in Russia

The article describes the category «constitutional and legal policy», and upholds the need to apply an ideological-activity approach to specify its essence. Conceptual elements and essential signs of the notion of «constitutional and legal policy» are identified. The author proves that the implicit ideology of the Constitution of the Russian Federation as well as political and ideological views and attitudes have an impact on the current policies of ensuring the right to business as well as the types and methods of legal regulation. The current Russian constitutional and legal policy in this field is analysed; according to the author, it is disordered, inconsistent and ineffective, moreover, it applies administrative methods of regulating entrepreneurial relations. It is concluded that the constitutional and legal policy in the sphere of ensuring the right to business should be science-based, complex, systemic, consistent, pragmatic, meet the current needs and opportunities (financial, organizational, etc.) of business entities, and be based on constitutional economic principles. In the author’s opinion, it is necessary to develop a «new» strategy of the market economy that would support the sustainable functioning and development of economic institutions; ensure the freedom of business; revise the strategic planning documents and business development state programs; and effectively specify the «economic constitution» rules in the branch legislation by using a dispositive method of legal regulation.

Key words: constitutional and legal policy, ideology of the Constitution, restriction of rights, right to business, type of regulation

Dmitriev M. (Novosibirsk) An obligatory assessment of regulatory impact as a general principle of organization of the system of state authorities of subjects of the Russian Federation

The article studies the obligation of subjects of the Russian Federation to conduct an assessment of regulatory impact. The author, according to the proceedings of the Russian legislation, analyses the concept of «general principles of organization of the system of state authorities of subjects of the Russian Federation» and finds out whether the obligatory assessment of regulatory impact corresponds to the meaning of these words. The author comes to a conclusion that Article 72 (para. 1, subpara. «m») of the Constitution of the Russian Federation does not grant the Russian Federation the authority to impose on its subjects the obligation to conduct the assessment of regulatory impact.

Key words: regulatory impact assessment, general principles of organization of the system of state authorities of subjects of the Russian Federation, issues under the joint jurisdiction of the Russian Federation and subjects of the Russian Federation

CRIMINAL LAW AND PROCEDURE

Dorogin D. (Moscow) Peculiarities of accounting for the status of representatives of indigenous minorities of the Russian Federation in criminal law

The article argues that representatives of indigenous minorities have a special general legal status, accounting for which have certain peculiarities in criminal law. Specific situations, in which belonging to indigenous minorities of the Russian Federation is significant, are distinguished taking into account the existing legal regulation and its application. The author touches upon the issues related to both the commission of certain deeds by representatives of indigenous minorities of the Russian Federation and the assignment of punishment for their deeds. The following peculiarities of accounting for the status of representatives of indigenous minorities of the Russian Federation in criminal law are considered: someone’s misconception about his deed that is actually prohibited by law (this misconception could be a circumstance precluding criminal liability); a lawful commission by representatives of indigenous minorities of certain deeds that cause criminally relevant harm; specifics of the criminal-law assessment of certain deeds; restrictions on the assignment of certain types of punishments and other criminal-law measures;  accounting for the fact that certain person belongs to indigenous minorities, at assignment of punishment. The author studies the legal positions of the Constitutional Court of the Russian Federation as well as the Supreme Court of the Russian Federation, and provides some examples from judicial practice.

Key words: indigenous minorities of the Russian Federation, circumstances precluding criminal liability, legal misconception, illegal hunting, illegal catch of aquatic biological resources, assignment of punishment, confiscation of property, burial, genocide

CIVIL LAW AND PROCEDURE

Golubtsov V. (Perm) The principle of good faith and the meaning of civil law: the logic of legislative changes and the tasks of law-enforcement

The author explores the genesis and current understanding of good faith in positive law and in law-enforcement. Taking into account legislative novels, the author notes that the principle of good faith in civil law is based not on the ethical standards but on the equality of parties to civil legal relations and the freedom of expression laid down by law. It is argued that new enforcement approaches formulated by the court should be derived from the fact that the notion of «good faith» is purely legal and consistent with the concept of «meaning of civil law», and the principle of good faith should be applied on the basis of objective (not subjective) standards. The author also examines various forms of misconduct in civil law and substantiates the need to distinguish between unfair and abusive behaviour in law enforcement, bearing in mind the concept of «meaning of law».

Key words: principle of good faith, discretion of the court, meaning of law, abuse of the right

Lisachenko A. (Yekaterinburg) Identification of the authors of scientific results: the past, the future and the birth of a global system

The article examines the formation and development of a historically established set of ways to identify the authors of scientific results. It proves that those eclectic ways are insufficient for the reliable and error-free identification of the authors of scientific achievements, the exclusion of falsifications, the plagiarism destruction, etc. Possible solutions are proposed, based on globalization and the use of modern technologies.

Key words: identification, scientific achievements, authorship, challenge of authorship, copyright, patent law, creativity

Babintsev I., Berzin’ O., Shliagina E. (Nizhnii Novgorod) To the specifics of determining the legal regime of animals

The article discusses different aspects of the legal regime of animals. It highlights the substantial number of legal lacunas, which are associated both with the concept of «animal» in civil law and with legally significant features of this object. The authors analyse various theoretical approaches to the concept of «animal», as well as the provisions of regulatory legal acts, and, accordingly, propose their own definition of this concept and substantiate the feasibility of considering animals through the category of «things». Based on the differences in the treatment of certain animals, the key features necessary for classifying animals as an object of civil rights are described. The peculiarities of the exercise of property rights in respect of animals are highlighted, taking into account the latest changes in legislation as well. The necessity of considering some animals as a source of special danger is also justified, since they fully correspond to the characteristics of such an object.

Key words: object of civil rights, animals, legal regime, source of special danger

Zagidullin M. (Kazan) Types of legal responsibility in the civil procedure

The article analyses main classifications of legal responsibility and their implementation in the civil procedure. On the example of legal responsibility measures used in the civil procedure, it is shown that the traditional division of types of legal responsibility into criminal-law, administrative-law, civil-law, material and disciplinary ones, along with the diversity of branches / sub-branches of law, has lost its relevance and is poorly correlated with the cross-branch nature of many responsibility measures. In addition, this classification does not take into account the procedural responsibility. The author proposes an additional classification of types of legal responsibility according to their legal nature. It does not replace the traditional classification but clarifies the composition of legal responsibility measures in a particular branch of law, helps to use the analogy of law, and contributes to the uniform legal regulation of legal responsibility and its enforcement.

Key words: types of legal responsibility, civil procedure, civil procedural responsibility

LEGAL ASPECTS OF ECOLOGY

Ignat’eva I. (Moscow) Problems of the creation and unification of definitions of legal concepts denoting natural objects

The article highlights a number of legal concepts denoting natural objects, which have no normative definitions in the legislation. Some adjacent natural objects, such as subsoil and land, land and water, etc., were not separated properly in law when they had been defined. In environmental legislation, there are different approaches to the definition of branch legal concepts according to a type of natural objects. The author thinks that the indicated problems of the conceptual apparatus of environmental law could be solved due to the development of common criteria for creating definitions of legal concepts denoting differentiated natural objects. This can be done on the basis of the common features of natural objects developed in the theory of environmental law through their concretization for each natural object.

Key words: natural object, land, subsoil, soil, forest, flora, bio-resources

MUSEUM OF SLI – USLA – USLU HISTORY

Zipunnikova N., Kalinina А. (Yekaterinburg) The Sverdlovsk Law Institute during the Great Patriotic War: education and science through the prism of clerical documents

The article is devoted to the anniversary of the Victory in the Great Patriotic War. It raises the question about the need to investigate clerical documents of the Sverdlovsk Law Institute as a significant source of studying the development of the Soviet legal educational system in emergency conditions. The authors describe the range of clerical documents deposited, among others, in the archives of the Ural State Law University. They cite as an example the full texts or the fragments of some orders signed by directors of the institute. These documents characterize different spheres of life of the provincial university, which was drawn into the intensive scientific development during wartime. The authors conclude that there are significant opportunities for using the fund of clerical documents in order to learn about the history of the university, the domestic legal and educational tradition, the development of historical and legal source studies a well as the commemorative practices concerning the Great Patriotic War.

Key words: Sverdlovsk Law Institute, Great Patriotic War, clerical documents, director’s orders, sources of study, memory of the war

LIBRARY

Review of the book: Kunz K.-L. Introduction to criminological thinking / transl. by A. Kozlova. – Saint-Petersburg: Alef-Press Publishing House LLC, 2019. – 362 p.