№ 4 (133) / 2020

THEORY OF STATE AND LAW

Kondrashev A. (Krasnoyarsk) Doctrinal understanding of the place of the head of state in various republican forms of government

The article discusses the position of the head of state in various republican forms of government – both in traditional (presidential and parliamentary) and hybrid ones (semi-presidential, super-presidential). The author proves that, in most democratic countries, the role of the head of state in the system of public authorities is gradually decreasing, while in developing countries with authoritarian regimes, the head of state is constantly gaining new excessive powers that allow him to wield significant state power. The author examines the main doctrinal problems related to the status of the head of state under the Constitution of the Russian Federation, among which are the concept of a special «presidential power» as the fourth branch of government; the status of the president in a super-presidential republic; a departure from the traditional classification of forms of government into monarchies and republics. The author analyses various theoretical positions in the contemporary doctrine of Russian constitutional law in relation to the form of government and the role of the head of state in nowadays republics.

Key words: form of government, head of state, super-presidential republic, semi-presidential republic, parliamentary republic

Trapeznikova E. (Perm) The practical dimension of the concept of «regulatory prescription»

The article investigates various points of view on the definition of the concept of «regulatory prescription» and its relation with the concept of «legal norm» as a central element of the legal system. The meaning of the legal concept under study and, accordingly, the significance of its certain features are determined through the role of a regulatory prescription in preventing and overcoming legal conflicts. To resolve a legal case, it is necessary to investigate the actual composition and the wrongful act addressed to each of the parties to the legal relationship. In this vein, the regulatory prescription should be defined as a part of the legal norm addressed to one of the parties to the legal relationship.

Key words: regulatory prescription, legal norm, claim, representative and binding nature of the legal norm

COMPARATIVE JURISPRUDENCE

Siryakov A. (Ryazan) Penitentiary treatment in Spanish law

The article is based on the study of Spanish special legal acts, statistical reports, judicial practice, and penal-law doctrine. It takes a closer look at the issue of penitentiary treatment of people sentenced to deprivation of freedom in Spain. Spanish legislation establishes a constitutional goal of re-education and social reintegration of convicts which can be achieved through penitentiary treatment. The author notes that penitentiary treatment is a set of activities designed to help a convicted person to become a law-abiding citizen and to be responsible for himself, his family, neighbours, and society as a whole. The article points out some similarities between the Russian and Spanish penal legislation; in particular, both of them provide for the same means and methods of treatment. The author also discusses in detail the distinctive features of the legal regulation of treatment in Spanish prisons: treatment is the right of convicts, not their obligation; treatment programs are of normative nature; an individual treatment plan is developed for each convicted person. The author gives a classification of treatment programs and mentions their high prevalence. He proposes possible ways of reforming the Russian penal legislation, taking into account foreign experience.

Key words: penal legislation, deprivation of freedom, penitentiary treatment, treatment program, Spain

Sel’kova A. (Yekaterinburg) Implementation of the jura novit curia principle by English courts: reality or illusion?

The article considers the jura novit curia principle («the court knows the law») developed by ancient Roman lawyers. The author fully examines the substantive aspects of this principle, which reflects not only the knowledge of the legal rules by the court but also its independence in the legal qualification and application of the law. The author sheds light on the problem of understanding and functioning of the jura novit curia principle in English litigation. Attention is focused on the ambiguous interpretation of this principle by English legal scholars, who in most cases critically assess the implementation of the jura novit curia principle by English courts. The author reveals different aspects of law-enforcement activities of English judges, taking into account their role and functions performed in the process. She also touches upon the problem of a gradual change in the model of English litigation. The author concludes that there is a direct relationship between these changes and the efficient implementation of the jura novit curia principle.

Key words: legal principle, implementation of the law, jura novit curia, litigation model, legal qualification

CONSTITUTIONAL LAW AND PROCEDURE

Dobrynin N. (Tyumen) On the nature of Russian constitutionalism

The article represents the key traits of constitutionalism in today’s Russia as a complicated socio-cultural phenomenon. The author believes that, from the philosophical point of view, constitutionalism should be regarded as a fundamental principle that fosters the formation of the political and legal regime in the state in accordance with constitutional values. The author points out several basic conditions, which have a direct and indirect impact on the actual state of constitutionalism in contemporary Russia. He also highlights that the further legal development and modernization of our country are severely impeded by the external challenges, distortions of mass legal consciousness of Russian society, and the exceeding bureaucratization of public authorities. The author asserts that the crucial qualitative transformation of constitutionalism in Russia cannot be provided merely through the total revision of the Russian Constitution. According to the author, the amendments to the Constitution should be targeted; the implementation of the constitutional ideas and values is impossible unless the distortions of mass legal consciousness are eliminated and the law-enforcement is inseparable from the moral and ethical fundamentals of the multinational Russian people.

KEY WORDS: constitutionalism, legal consciousness, political and legal culture, society, democracy, sovereignty

CRIMINAL LAW AND PROCEDURE

Gustova E., Markov E. (Moscow) Criminal-law regulation and implementation of active repentance as grounds for release from criminal liability

The article is devoted to certain problems of the regulation and implementation of the active repentance institution in the Russian Federation. It analyses the conditions for release from criminal liability in connection with active repentance. The authors provide statistical data on the number of persons released from criminal liability due to active repentance. They propose some measures to improve the criminal-law provisions on release from criminal liability in connection with active repentance.

Key words: active repentance, release from criminal liability, confession, assistance in the disclosure and investigation of crimes, compensation for damage

CIVIL LAW AND PROCEDURE

Semyakin Mihail (Yekaterinburg) Integration and differentiation of norms of the Russian civil legislation as the most essential trends in its reforming

Integration and differentiation of civil-law norms are objective processes arising as a result of the significant complication and formation of new social relations as well as the internal evolution of the normative system of civil legislation. The author underlines the need to assess carefully the validity of the specification of law in terms of ontology, epistemology, formal logic and the current needs of law enforcement. He puts forward a number of requirements for the specification of law, in particular the need to ensure the legality, consistency and legal certainty of norms.

Key words: integration, differentiation, specification of law, civil legislation, general norms, specifying norms

Malinova A. (Moscow) Legalization of the concept of «quality of life» in disputes on compensation for moral harm

Moral harm is considered in terms of the concept of «quality of life». The quality of life depends on the achieved level of physical, mental, and social well-being of a person. The aim of compensation for moral harm is to restore a victim’s normal self-esteem in conformity with the principle of equality of citizens in mutual respect for personal sovereignty. According to the definition of the concept of «degree of guilt», which combines psychological and value aspects, the author develops a scheme for identifying a relationship between the degree of victim’s sufferings and the degree of perpetrator’s guilt. It is shown that the nature of this relationship could be determined through the motivation of defendant’s actions and their impact on the quality of plaintiff’s life.

Key words: moral harm, quality of life, forms of guilt, human rights

Burova A. (Nizhnii Novgorod) Occasional intermediary: a definition and certain issues of its correlation with brokerage

The article researches the aims and substance of an occasional intermediary contract which is used in international trade relations in order to assist the parties in concluding an agreement. The author analyses The ICC Model Occasional Intermediary Contract and, on this basis, considers the types of services provided by an occasional intermediary as well as the issues of the exclusivity of intermediary’s activities and the protection of his interests; she also distinguishes the functions of an occasional intermediary and of a neutral intermediary (mediator). The author pays attention to the problem of fair allocation of charge in case of unilateral repudiation of the occasional intermediary contract and proposes possible solutions to this problem. The article reveals similarities and differences between an occasional intermediary contract and a brokerage contract. It is highlighted that the aim of both contracts is to find a counterparty for a principal and to perform a number of accompanying actions that lead to the conclusion of an agreement between a principal and a third party. It is noted that the subject of a brokerage contract cannot be limited to the provision of information to a principal because in such case a broker does not participate directly in putting a principal into contact with a third party and a brokerage contract becomes almost identical to a service agreement. Special attention is paid to the problem of factual actions taken by an occasional intermediary or a broker and intended to assist the performance of an agreement between a principal and a third party.

Key words: occasional intermediary contract, intermediary, brokerage contract, assistance in the conclusion and performance of a contract

Belyaeva N. (Yekaterinburg) Some issues of consideration by Russian commercial courts of economic disputes arising from relations complicated by a foreign element

The article covers some issues of the application of law provisions by commercial courts when considering cases on economic disputes arising from relations complicated by a foreign element. Among them are the issues of establishing a legal status of foreigners, examining the credentials of their representatives, determining the applicable law, and applying the interim measures. The author refers to the official clarifications of the highest judicial authority.

Key words: commercial court, international civil process, foreign element, foreign citizens and organizations, international private law

Kazakov A. (Perm) On the distinct advantage of the authorized body in arbitration proceedings (on the example of Article 93.1, paragraph 2, of the Russian Tax Code)

The author doesn’t dispute that the tax agency is authorised to request documents (information) in the manner prescribed by Article 93.1 (paragraph 2) of the Russian Tax Code. However, he believes that the arbitrary use of this tax control tool in arbitration proceedings violates the principle of equality of arms and the adversarial principle, as well as the balance of private and public interests because it allows the authorized body, which acts as a party to the court, to use its official powers outside the tax control measures and bypassing the legal rules on demanding evidence. Such conduct of the tax agency is not permissible because it can disadvantage the parties to the proceeding and also contradicts the general meaning of Article 19 (Part 1), Article 46 (Part 1), Article 123 (Part 3) of the Russian Constitution, as well as Articles 8, 9, 65, 66 of the Arbitration Procedural Code of the Russian Federation. Thus, the author recommends that commercial courts refuse to attach to the case file documents received in an above-mentioned way under Article 68 of the Arbitration Procedural Code. This will encourage the authorized body to use a legal mechanism for demanding evidence according to Article 66 (paragraph 4) of the Arbitration Procedural Code.

Key words: equality of arms, adversarial principle, distinct advantage, tax audit, tax control, inadequate evidence

ADMINISTRATIVE LAW AND PROCEDURE

Smolyakov P. (Chita) Problems of individualization of punishment for crimes and administrative offences in public procurement

The article analyses the penalties of norms of the Russian Criminal Code and the Code of Administrative Offences, which establish criminal liability for violations in public procurement. The author points out that many of these penalties, unlike criminal ones, are not alternative, and this contradicts the doctrine, doesn’t allow to individualize punishment and results in discrimination against budget organizations and their officials bringing to justice.

Key words: public procurement, liability, alternative sanctions, fine

Gabucheva S. (Petrozavodsk) Legal consequences of the absence of state registration of rights or encumbrances to the land plot

The article analyses the legal consequences of including in the Rosreestr checklist the question of whether the rights or encumbrances to the land plot being used are registered. The author concludes that the provisions of the legislation on state registration of immovable property rights cannot be considered mandatory requirements and, therefore, compliance with them cannot be inspected by the state land supervision authority.

Key words: state registration of property, state land supervision, mandatory requirements, checklist

ECONOMICS AND LAW

Romanov G. (Yekaterinburg) The three-step test in international and Russian copyright law

On the basis of foreign studies and WTO case law, the author analyses the three-step test institution in international copyright law, investigates the interrelations of norms of different international treaties stipulating the test, interprets the criteria of the test and also considers the Russian legislation norms establishing the three-step test. The author concludes that the three-step test shouldn’t be applied automatically in order to promote a balance of interests of different subjects of copyright law, so it is necessary to take into account other factors along with economic ones. He also contends that the Russian legislation doesn’t allow the use of the three-step test by the court while considering certain cases.

Key words: three-step test, exceptions and limitations, free use of works, minor reservations doctrine

Sobolev O. (Yekaterinburg) Public services: differentiation of law-branch regulation

The author introduces his own approach to distinguishing public services from similar private-law instruments. By using a number of criteria significant for the public administration, he attempts to identify the essence, content, and place of public services in the structure of administrative activities of executive authorities. As a result of the research, it’s concluded that public services have a restrictive and compensatory potential to ensure a stable administrative-law order.

Key words: public services, administrative activity, paid services contract, administrative restrictions, administrative compensation, administrative regime

Yadrikhinskii S. (Vologda) Challenges of implementation of taxpayers’ legitimate interests

The legitimate interests of taxpayers are an independent object of judicial and administrative protection; however, implementation of them faces certain challenges. There are two groups of challenges of implementation of taxpayers’ interests: objective ones (doctrinal, normative, and law-enforcement) and subjective ones related to the enforcer’s intellectual activity. The author highlights the heterogeneous nature of these challenges. He proposes various ways for their elimination, the success of which largely depends on the legal culture of tax officials and the level of legal awareness of the legislator.

Key words: legitimate interest, taxpayer, tax authority, challenge

PAGES FROM THE INVESTIGATOR’S DIARY

Life for the benefit of the Fatherland, for the glory of science, for the good of people (opening remarks by V. Karagodin, E. Agafonov)

Drapkin L. (Yekaterinburg) Page seventeen. «Every investigative version must be completely verified»

PROBLEMS OF LEGAL EDUCATION

Kodan S. (Yekaterinburg) Ancillary legal disciplines in the structure of jurisprudence

The article raises the question of whether it is possible to distinguish in the structure of jurisprudence a special group of scientific and academic disciplines facilitating research activities. The general features of ancillary legal disciplines and their functional purpose are examined. The author believes that the development and introduction of these disciplines into the graduate and postgraduate studies will increase the level of culture and the quality of dissertations.

Key words: science, science studies, jurisprudence, legal education, classification of law disciplines, ancillary legal disciplines

PAGES OF HISTORY

Mamyachenkov V. (Yekaterinburg) Criminal situation in the Sverdlovsk region at the end of the 1960s – the beginning of the 1980s (on the materials from regional archives)

The article is based on the archival materials from the Centre for Documentation of Public Organizations of the Sverdlovsk Region. The author considers the criminal situation in the so-called stagnant period of Soviet Russia history (the end of the 1960s – the beginning of the 1980s). It is alleged that at that time the level of equipment of internal affairs bodies and the effectiveness of their activities were generally growing: during the above-mentioned period alone the supreme authorities of the USSR had issued several decisions and decrees on the fight against embezzlement. It is stated that the mass involvement of citizens in the protection of public order had negative side effects. It is concluded that the period under study was quite controversial and ambiguous in terms of combating crimes. By the beginning of the 1980s, the distortion of statistics had deeply rooted in the activities of law-enforcement bodies; corruption and other negative phenomena had been steadily growing.

Key words: Sverdlovsk region, crime, types of crimes, people’s squads

MUSEUM OF SLI – USLA – USLU HISTORY

Zipunnikova N., Kalinina А. (Yekaterinburg) Historiography of the history of law universities in Russia: what can be seen in the mirror? (On the example of the Ural State Law University)

The article attempts to consider the historiographical analysis of the history of Russian legal education and science as an independent problem. Its general outline is provided since historiography is of secondary importance for legal research. The authors show the role of university historiography in understanding the diversity of scientific and educational dimension and the intellectual landscape of our country. The historiographical tradition of the Ural State Law University is an example of a specific university history-writing. The authors reveal some aspects of law and university historiography including the focus on anniversaries and memorial occasions; the uniqueness of historiographical sources created in the Irkutsk period of university history is indicated. The authors present their own periodization of the Ural State Law University historiography. The metaphor of a mirror is used to characterize a complex of historiographical sources.

Key words: historiography, history of legal education and science, Sverdlovsk Law Institute, Ural State Law University, mirror