№ 2 (125) / 2019

PUBLIC ISSUES AND POLITICAL SCIENCE

Mikheeva I. (Nizhnii Novgorod) Principles of the legal regulation of permissive procedures as a basis for effective public administration

The article asserts that there is a relation between the principles of the legal regulation of permissive procedures and the efficiency of public administration. It is emphasized that the principle of the differentiation of permissive powers of executive authorities should be necessarily legalized. The scope of this principle is defined through: 1) the correlation of federal and regional permissive legislation; 2) the clear definition of permissive powers of executive authorities with different competences (general and special one); 3) the consistent implementation through the federal-law «permissive» rules of the constitutional provision on a delimitation of authorities of the Russian Federation and its subjects. It is also suggested that the effect of the principles of administrative procedures is determined not so much by their legalization but by the formation of so-called «axioms of legal consciousness» that attributed to subjects of management.

Key words: permissive procedures, principles of law, legal regulation, public administration, executive authorities

Selikhov N. (Moscow) People’s sovereignty in the current context: the conceptual presentation of main problems

The article states the problems of the implementation of an idea of people’s sovereignty in the current context, in particular, the proper understanding of its source and carrier as well as the search of an adequate method of its implementation in public management. They are discussed via the opposition of two main forms of sovereign people’s authority: public representation and people’s self-government. According to the suggested options of public and law dispersion, which explains the social stratification, the people are considered as an object and subject of management. Based on the «state – state-owned people» concept, the article justifies that the people have a collective legal personality and need to be accepted as a subject of special kind of legal relations – power relations. The people are a central element in these relations and define the limits of power of public authorities designed to serve as a repeater of the will of the majority. To overcome the prevailing opposition of the state embodied by the political representation (social minority) and the rest of people, it is suggested to move from representation to people’s self-government in the regulation of social relations in the state. Also, it is emphasized that there is the need to move away from the partocratic method of staffing the representative authorities as well as to develop some other forms of social and political communications, which promote not the dissociation but the unity of the people. Along with this, positive law is expected to play the role of the main means of consolidating and implementing the ideas of people’s sovereignty.

Key words: people, people’s sovereignty, democracy, political representation, people’s self-government

INTERNATIONAL LAW

Tolstykh V. (Novosibirsk) International law as a mythology

International law uses not only prescriptive ideas but also descriptive ideas that explain reality. Descriptive ideas distort reality and, therefore, they are myths. The mythological structure of international law consists of five levels: the first is formed by the ideas of sovereignty and human rights, the second – by the liberal reformist ideas of the 19th century, the third – by the idea of international crime, the fourth – by the neo-liberal ideas of the second half of the 20th century, the fifth – by the idea of technologies. This structure coincides, for the most part, with the structure of internal law, since the theory of international law is based on the internal analogy, according to which the international order, like the internal one, results from an agreement between individuals pursuing security. Legal myths are often formulated by individuals who act under the influence of a personal situation but claim an objective assessment of historical facts. They are usually introduced in order to resolve an acute political crisis, accompanied by the depreciation of old ideas. The legal myth uses all three methods of legitimization – and, above all, the charismatic legitimization, which appeals to natural laws. The negative impact of myths is carried out in several ways: firstly, the myth forms limited and closed discourse; secondly, it generates logical contradictions; thirdly, it destroys social reality; fourthly, it is an instrument of domination; fifthly, it alienates from existence; sixthly, it interlocks with other myths and, thus, creates a mythological structure. Reality resists the impact of myths. When the resistance reaches a critical level, the myth isn’t able to organize order anymore and the mythological structure is forcedly transformed. This transformation does not mean the death of myth, but its mimicry or the formation of a protective myth. The myth can be exposed, although this is an extremely sophisticated task. The exposure does not imply an exit from the myth space; a person who is aware of the imperfection of myths remains bound to them by his own fate. In this regard, it is important to design the institutional level of overcoming myths.

Key words: cognition, international law, mythology, sovereignty, human rights, history of law, politics

Kantur R. (Moscow) A minor as a perpetrator of terrorism-related crimes: international legal aspects

With reference to international legal norms, acts of «soft law», and judgments of international judicial bodies, the article highlights the international legal standards related to administration of justice for minors committed terrorism-related crimes. It is noted that the complex of juvenile international legal standards doesn’t specify the rules concerning administration of justice for terrorists but is applicable to such cases. The only international document, which summarizes good practices in the administration of justice for juvenile terrorists and puts them in line with international legal norms on protection of child’s rights, is the GCTF Neuchâtel Memorandum on Good Practices for Juvenile Justice in a Counterterrorism Context. The issue of qualifying prima facie terrorist acts committed by juveniles in time of war is analyzed. It is concluded that such acts should be qualified as terroristic, regardless of whether they were committed in times of peace or of war. Besides that, the rules of the modern international humanitarian law and international criminal law do not exempt from criminal responsibility those minors who committed a terrorism-related crime during a military conflict. The key element that allows qualifying such an act is a special intent (dolus specialis) to spread terror or to coerce an authority. It is revealed that a minor who perpetrated a terrorist attack falls within the category of unlawful combatants, belongs to civilians, and does not enjoy rights and privileges intrinsic to prisoners-of-war. The reason is that such a person doesn’t correspond to the characteristics of combatants enumerated in the Fourth Hague Convention 1907.

Key words: terrorism, minor offenders, juvenile justice, minimum age of criminal responsibility, criminal prosecution, Global Counterterrorism Forum, Dominic Ongwen, Omar Khadr, International Criminal Court

Gazizova A. (Kazan) On the tradition knowledge, tradition cultural expressions and genetic resources protection

The article mentions an upsurge of interest of the international community in the problems of traditional knowledge, traditional cultural expressions and genetic resources protection. Particular attention is paid to the concept of biopiracy; the most prominent examples of the illegal use of traditional knowledge and related genetic resources, such as Neem tree, Turmeric and Enola beans, are analyzed. The author also considers the illegal use of traditional cultural expressions, using an example of picture by the Australian artist Banduk Marika. The challenges faced in developing traditional knowledge, traditional cultural expressions and genetic resources protection system are analyzed. Their solution rests in the consensus on such matter as the proper definition of the mentioned concepts and the choice of an appropriate protection system.

Key words: tradition knowledge, tradition cultural expressions, genetic recourses, indigenous peoples, biopiracy

CONSTITUTIONAL LAW AND PROCEDURE

Cheprasov K. (Barnaul) The Confucian «Rectification of Names» and problems of parliamentarism in Russia

The author, on the basis of the analysis of a wide range of Russian and foreign scientists’ opinions, explores the modern understanding of parliamentarism. It is noted that, in the Russian science of constitutional law, there is no unity of views on the nature and content of this constitutional and legal category. There are two groups of authors, some of which offer a rationalist understanding of parliamentarism, others give this category an ideological and axiological content. It is argued that a full understanding of parliamentarism is possible only with the use of a multidisciplinary approach (at least political and legal). On the basis of generalization of modern democratic political and legal practice, it is concluded that parliamentarism as an independent phenomenon of state life can exist only in the parliamentary form of government. As a result, the author notes that parliamentarism is not inherent to modern Russian.

Key words: democracy, constitutionalism, parliamentarism, form of government

Safonov V. (Saint-Petersburg) Social partnership at work: some constitutional aspects

The author analyzes the points of view about a concept and contents of collective agreements and, on this basis, studies constitutional and legal grounds for social partnership at work. It is claimed that the workers’ right to bargain collectively and to conclude collective agreements follows from the constitutional right of association, and the relevant employers’ right is based on the constitutional right to free enterprise and other economic activities not prohibited by law (and, at the same time, is restricted by it), as well as on the right of association – at the levels of social partnership above local one. The author notes that the extension of a collective agreement to all workers is caused by protection of the constitutional values of equality, which are reflected in the ban of employment discrimination, and does not break the principle of freedom of association. He also thinks that the extension of the agreement to employers, who did not participate in its conclusion, doesn’t violate their economic rights and that the state authorities of the Russian Federation subjects are not authorized to establish procedures for the extension of agreements similar to procedures stipulated by federal laws. Based on the practice of the RF Constitutional Court, some criteria for evaluating the content of individual norms of collective agreements and minimum wage agreements of the Russian Federation subjects are proposed.

Key words: social partnership, collective agreement, right of association, regional agreement on minimum wage, discrimination, extension of an agreement

CRIMINAL LAW AND PROCEDURE

Chernyshev D. (Nizhnii Tagil) Entrepreneurial fraud: does your business need its own criminal article?

The problem of identifying entrepreneurs as a privileged category of subjects is quite relevant. Despite the dubious philosophical and legal foundations of such an approach, the legislator persistently enshrines the criminal-law rules that improve the position of entrepreneurs only because of their special status of professional business participants. The author analyzes the pros and cons of such a situation. He comes to the conclusion that there are no grounds for the existence of special criminal-law norms on the entrepreneurs’ responsibility establishing their privileges. In the author’s opinion, the current state of affairs contradicts to the principle of criminal justice, as well as to the goals of state policy to decriminalize economics.

Key words: fraud, entrepreneurship, social danger, justice, economic relations, criminal prosecution, differentiation of responsibility

Barabash Anatolii (Krasnoyarsk) On the content of the concept of "principle" in various branches of law

Each branch of law has its unique subject and method of legal regulation of certain social relations. However, the principles of all these branches of law are identically comprehended by different scholars. Does this situation adequately reflect legal reality? Answering to this question, the author comes to following conclusions: the legal regulation of each law branch is different, therefore, their principles are different too; the principles of law should be used only in procedural law where it is necessary to regulate possible behaviour of actors aimed at achieving procedure goals.

Key words: principle, civil law, civil procedure, criminal law, Criminal Code of the RF, criminal procedure

Sofronov G., Kholstinin R. (Yekaterinburg) Desire for truth as a dominant in the development of criminal procedure law of evidence

The article is devoted to the use of philosophical categories in procedural law of evidence. The article is based on the results of the analysis of current views on the development of law of evidence in Russia. The authors reflect on different concepts of truth used in criminal procedure. It is emphasized that a criminal procedure jurist should «embed» himself in the philosophical coordinate system since this determines the ideological basis for its activities. There is a paradoxical conclusion that the criterion of truth is an «inner conviction», which means that it is necessary to abandon the ideological clichés and turn to the internal logic of the law of evidence.

Key words: philosophy of law, logic of law, law of evidence, truth

CIVIL LAW AND PROCEDURE

Kleponosova M., Lushina L., Loginova A. (Nizhnii Novgorod) Efficiency of the legal regulation of compensation for harm under the OSAGO contract

The article examines the main results of the reform of insurance compensation under the contract of compulsory insurance of civil liability of vehicle owners (OSAGO contract). The Federal law of 28 March 2017 No. 49-FZ has established the priority of refurbishment as a form of insurance compensation under the OSAGO contract. Herewith, the Act of the Bank of Russia of 19 September 2014 No. 431-P has stipulated the list of criteria that must be met by a service station. Among the prerequisites for the adoption of the mentioned rules, there is the considerable number of court cases on payment of insurance compensation under the OSAGO contract, the numerous activities of intermediaries and the high level of fraud in the insurance sector. So, the purpose of the Federal law No. 49-FZ could be formulated as reducing the number of payments under the OSAGO contract, which may reduce the interest of intermediaries and unscrupulous market participants in this field. The research is based on the analysis of statistics of the Russian Association of Motor Insurers and the Judicial Department at the Supreme Court of the Russian Federation as well as of court and law enforcement practice. On this basis, the authors answer the question whether the goal of the reform of compulsory insurance of civil liability of vehicle owners was achieved, and come to the conclusion about the ineffectiveness of the adopted legal regulation. The main reasons for this are the inadequate regulation of the relationship between a service station, an insurer and an injured party; the lack of the number of service stations that meet all the criteria established by law; the high cost of refurbishment and the inclusion in the relationship between an insurer and an injured party of a third party – a service station, which is beyond the control of a supervisory authority; the problem of restriction of the victim’s right to choose the form of insurance compensation.

Key words: insurance compensation, civil liability, insured event, insurance organization

Voitovich E. (Novosibirsk) Recognition and enforcement of foreign judgments in Russia: conflicts of law enforcement

The advisability of expanding the range of judgments to be recognized and enforced in Russia is the issue, which has repeatedly been raised in Russian doctrine. It is of particular relevance today, as domestic procedural legislation is being reformed. The article identifies conflicts of law enforcement activities of Russian courts and suggests recommendations for improving the existing mechanism for recognizing and enforcing foreign judgments. International courtesy, reciprocity and international treaties are considered as possible grounds for recognizing and enforcing foreign judgments in Russia. The author comes to the conclusion that the expansion of the range of recognized and enforced foreign judgments due to international courtesy, reciprocity and international treaties in the formulations and meanings attached to them by Russian arbitration practice does not comply with the current procedural legislation, undermines confidence in the judiciary, creates a risk of the constant and unmotivated change of arbitration practice.

Key words: foreign judgments, recognition, enforcement, international courtesy, reciprocity, international treaties

Burmistrova S. (Chelyabinsk) On the application of good faith in the resolution of conflicts of interest

The author mentions that, in law doctrine, there is no reasonable, illustrative and simple algorithm for the application of categories of good faith and abuse of rights in law enforcement. A brief review of doctrinal approaches to the understanding of good faith and abuse of rights leads to the conclusion that most of them describe only individual characteristics of these categories and don’t reveal their essence. According to the purpose of good faith in law as a moral and ethical category, the author proposes her own understanding of abuse of rights as a violation of limits (qualitative and quantitative) of the subjective right that forms an inappropriate legal interest, which is not subject to protection and, at the same time, violates legal interests of other parties to the relationship. It is concluded that good faith as a requirement to take into account interests of other persons implies the existence of subjective and objective principles of behaviour aimed at the realization of interests as well as the qualitative and quantitative limits of such behaviour, exceeding of which forms an abuse of rights.

Key words: good faith, abuse of rights, application of good faith, legal interests, balance of interests

LABOUR AND SOCIAL LAW

Zaitceva L., Kursova O., Khilchuk E. (Tyumen) Validity and consequences of increasing the retirement age

The adoption of the Federal law of 3 October 2018 No. 350-FZ «On amendments to certain legislative acts of the Russian Federation on the purpose and payment of pensions», which introduce inter alia the increase of the retirement age, was caused by a demographic situation in the country and financial problems of the Pension Fund of Russia. However, the grounds for increasing the retirement age are not exhaustive and unambiguous. Plans for increasing the retirement age are part of the state strategy for poverty reduction. At the same time, they do not take into account the current state of the Russian labour market and employment, the level of work capacity of older citizens. This can aggravate the employment problems, reduce the level of citizens’ incomes, increase the expenditures of state non-budgetary funds related to temporary or persistent loss of ability to work by citizens before the emergence of their right to an old-age pension. Moreover, the Russian labour legislation is not adapted to the potential increase in the number of working older people; it lacks effective measures of anti-discrimination protection and a special regulation of work of persons with a reduced level of working capacity due to their age and chronic diseases. The above-mentioned law has a number of logical and legal contradictions that prevent the actual application of norms introducing benefits for people with a long labour experience. As a result, the authors propose some measures to improve legislation, including by extending the transitional period of the pension reform in order to mitigate its negative social and political consequences.

Key words: retirement age, old-age pension, age discrimination, peculiarities of the regulation of work of older workers, regulation of the labour market

ECONOMICS AND LAW

Popondopulo V. (Saint-Petersburg) Freedom of entrepreneurship and competition law

The article considers the issues of nature, role and significance of competition law, its conformity to the principle of freedom of entrepreneurship from a standpoint of liberal and institutional social doctrines. It argues in favour of representatives of liberal social doctrine. The author mentions institutional and liberal approaches to the question of whether competition law protects or regulates competition. Preference is given to a liberal one that is based on the economic interest of a competitor itself and gives him an opportunity to directly protect in court his absolute right to freedom of market actions. In the author’s opinion, the task of the state is to safeguard the relations arising in a free market environment and under law, but not to regulate them.

Key words: market, competition, monopolistic groups, cartels, protection of competition, competition law

Tolmachev I. (Yekaterinburg) Signs of bankruptcy of credit institutions

According to the results of the analysis of doctrinal provisions and domestic legislation, the signs of bankruptcy of a credit institution are described. The article defines the concepts of insolvency and non-payment, their relationship with each other, their advantages and disadvantages. It considers the problem of determining the volume of assets and liabilities of a credit institution for the purposes of bankruptcy, taking into account the fair value of loans, the formation of provisions for loan losses.

Key words: bankruptcy, credit institution, insolvency, non-payment, impairment of loans, fair value of loans, provisions for possible loan losses

LEGAL ASPECTS OF ECOLOGY

Nikishin V. (St. Petersburg) Determination and change of the boundaries of land and land plots, forest plots, water objects allocated for conducting the works related to subsoil use

The author analyzes a legal order of granting lands, land plots and forest plots, water objects, their parts allocated for conducting the works related to subsoil use as well as legal regulation of the establishment of their boundaries. He considers various approaches to the recognition of such objects as independent objects of the environmental management right and describes certain requirements to establish the properties and signs promoting their identification. Terminological shortcomings of the Russian ecological legislation and features of a legal regime of land and forest plots, water objects allocated for geological exploration and mineral extraction are mentioned. It is emphasized that such features are defined by the natural characteristics of environment components, by the branch approach to designing the mode of their use, and by the establishment of various forms of ownership and title rights to them. The sequence and interdependence of nature users’ actions for the registration of their subsoil rights are assessed. On the basis of certain examples of court practice, the author examines the problems related to change and specification of the boundaries of subsoil plots. He puts forth some proposals for the elimination of shortcomings of legal regulation of the relations concerning the complex use of natural resources.

Key words: land plot, forest plot, water object, subsoil plot, boundaries of a mining lease, license on subsoil use

PAGES OF HISTORY

Demidov N. (Tomsk) The contingent of wageworkers as a factor in the appearance of factory legislation

The article analyzes the impact of the qualitative composition of industrial workers on the genesis of factory legislation in the Russian Empire of the 18th and 19th centuries. It assumes that the evolution of legal consciousness played an essential role in the emergence of social-compromise labour standards. The logic of the development of the workers' strata from serfs employed in feudal industries through assigned, sessional, indispensable workers, and seasonal workers (otkhodniki) to hired workers is reconstructed. Paternalism, archaism, adherence to non-legal regulators, conservatism, legal nihilism, and corporate autonomy are considered as the archetypes of workers’ thinking, which have slowed down the establishment of factory law. The trend to free hiring is explained by two reasons: the search for the compromise and most efficient models of relations by workers and employers, and the administrative measures of the state to provide the national industry with working hands. It is substantiated that the emergence of the proletariat as an addressee of factory law was non-linear. Along with the main line of the evolution of workers from peasants, there was a special experience of the Urals. The phenomenon of indispensable workers as the first corps of industrial professionals governed by law sprang up right there. It is concluded that the key condition for the development of factory legislation in the 19th century was the formation of a new industrial-labour subculture among workers. It was necessary to have subjects of a specialized industrial hired labour for the formation of a new paradigm of legislator’s thinking.

Key words: history of labour law, anthropology of labour law, legal conscience, workers, factory legislation, Russian Empire