№ 5 (128) / 2019

COMPARATIVE JURISPRUDENCE

Salenko A. (Kaliningrad) The constitutional value of freedom of peaceful assembly: the doctrinal and judicial interpretation in Russia and Germany

The author analyzes the doctrinal and judicial interpretation of freedom of peaceful assembly developed in Russia and Germany. Based on a comparative study, the author concludes that the German constitutional doctrine defines in detail the constitutional value of freedom of peaceful assembly, which has several specific functions in a democratic state. Due to the German constitutional doctrine, among them, there are the function of protecting opposition, the stabilization function, the function of making a public opinion and identifying the truth as well as the self-protecting function. The German constitutional doctrine developed under the strong influence of the German Federal Constitutional Court’s case-law describes the modern democracy as an assembly democracy (Versammlungsdemokratie), and this indicates the special constitutional value of freedom of peaceful assembly. Great importance of freedom of peaceful assembly for building a democratic and legal state is emphasized. According to the author, exactly this constitutional principle should be the basis for resolving all conflicts between freedom of peaceful assembly and other human and civil rights and freedoms.

Key words: freedom of peaceful assembly, public events, communication rights and freedoms (Kommunikationsgrundrechte), assembly democracy (Versammlungsdemokratie), judicial constitutionalism, case-law of the German Federal Constitutional Court

Irkhin I. (Rostov-on-Don) Problems of qualification of the constitutional-law status of autonomous regions in the state-territorial structure of the Republic of Serbia

The article analyzes the issues of qualification of the constitution-law statuses of the autonomous regions of Serbia (Vojvodina, Kosovo and Metohija). The author notes that the Serbian Constitution of 2006 lacks a clear and detailed definition of the concept of «legal regime of autonomy». It is stated that the autonomy regime does not apply to Kosovo and Metohija since most of the territory of this region is not under the control of the Serbian authorities. Vojvodina does not fully correspond to the attributes of territorial autonomies developed in the foreign constitutional tradition, because this region does not have exclusive competence. Besides that, there is no institution of representation at the level of public authority. In this regard, it is believed that Vojvodina has a very limited scope of self-government, and therefore, its constitutional-law status is closer to the administrative-territorial unit of a unitary state. The author concludes that an approach based on the principles of openness, accessibility, responsibility, mutual interest, and effectiveness is essential for the successful institutionalization of territorial autonomies. Otherwise, a territorial autonomy can become both a fiction and a hotbed of separatism, which are pretty common for Vojvodina (fiction) and Kosovo and Metohija (separatism).

Key words: Serbian Constitution, autonomous region, Vojvodina, Kosovo and Metohija, state-territorial structure, legal regime

PUBLIC ISSUES AND POLITICAL SCIENCE

Lapteva L., Yurtaeva E. (Moscow) Anti-corruption ethical rules

Legal regulators are considered the most convenient among various ways of social regulation. At the same time, the rigid forms of combating deviations do not always guarantee a desired social result. Moreover, it is quite easy to avoid the threats of criminal prosecution and administrative punishment for the corruption deeds by raising the risk charges. Under these circumstances, it becomes important to search for other – non-legal – mechanisms of combating corruption. Corruption causes not only economic losses; it is also disastrous for public morality, because it reduces trust in state authorities, destroys opportunities for public administration, doesn’t meet the society’s legitimate expectations, and gives rise to a false belief that the government system cannot function differently. The use of proactive and upbringing measures to prevent corruption can bring a positive result in the future. The state, developing and applying ethical and behavioural standards, simultaneously solves the problem of stimulating proper behaviour most naturally and humanely through the voluntary recognition of the social value of moral behaviour.

Key words: corruption, legal regulation, ethical and behavioural factor, ethical standards, ethical code

INTERNATIONAL LAW

Teslenko A. (Yekaterinburg) About the concepts of «migrant» and «international migrant»

The article analyzes such concepts as «migrant» and «international migrant». Particular attention is paid to the signs of an international migrant and his legal status. A refined universal definition of the concept of «international migrant» is proposed. Several grounds for the classification of international migrants are considered.

Key words: migrant, international migrant, legal status, signs of an international migrant

Glazova A. (Moscow) Law-enforcement measures within the maritime areas: the legal nature and application problems

The author explores the norms of international law, general and special international treaties regulating the application of law-enforcement measures within the maritime areas to combat unlawful acts at sea. The substance and content of these measures are described. The author concludes that law-enforcement measures within the maritime areas should be applied while taking into account certain factors (the international legal status and legal regime of the territories where the alleged offense is committed, the location of the alleged offenders, the offenders’ citizenship, the established jurisdiction of other states, etc.), since any unlawful application of these measures may cause the deterioration of interstate relations.

Key words: international law, law-enforcement measures, jurisdiction, maritime areas

INTERNATIONAL PROTECTION OF HUMAN RIGHTS

Dzherykin I. (Yekaterinburg) Liberal paternalism in the context of the 1989 UN Convention on the rights of the child

The article is devoted to the theory of liberal paternalism. In particular, the views of T. Hobbes, J. Locke, J. Mill, M. Freeman on the issue are considered. The reflection of the theory in the Convention on the rights of the child, especially in article 3, paragraph 1 (principle of the best interests of the child) and article 12, paragraph 1 (right to respect the views of the child), is revealed. A systematic and holistic interpretation and application of these articles implies the search for a balance between protecting the child, limiting his participation in public relations, on the one hand, and giving him the right to express his own views and take independent decision on issues affecting his interests and, thus, increasing such participation, on the other hand. According to the author, despite the difficulties in applying the Convention and searching for this balance, one cannot give preference only to liberalism and the «absolute freedom» of the child or to paternalism and the will to provide maximum protection for the child.

Key words: liberal paternalism, rights of the child, Convention on the rights of the child, best interests of the child

LOCAL SELF-GOVERNMENT AND MUNICIPAL LAW

Panov D. (Moscow) The population of a municipal entity and the local communities in the system of municipal public authority

The article investigates the problem of determining the key subject of municipal authority and local self-government. There is no definition of the concept of «local population» in Russian laws. The Constitutional Court of the Russian Federation and several scholars pay particular attention to the local communities. In this regard, the author analyzes the specifications of using these terms in the federal laws and practice of the Constitutional Court of the Russian Federation, as well as various approaches to the definition of these concepts in legal science. Some features of the main subject of the local level of public authority are revealed and analyzed. The unclear legal nature of this phenomenon impedes the proper self-identification of citizens as participants of the municipal process. According to the author, it is necessary to reveal the meaning of the concept of «population of a municipal entity» in law. At the same time, the population should be defined as a subject of municipal authority, the contents of which should be also clarified by law.

Key words: local self-government, local population, municipal entity, local community, municipal authority

CRIMINAL LAW AND PROCEDURE

Novoselov G. (Yekaterinburg) Types of punishment: the system and subsystems

The types of punishment enshrined in the Criminal Code of Russia are considered as a system that is not just a list of types of punishment or their various classifications, but a complex hierarchy of levels, subsystems and vertical and horizontal connections. At the most general level, there is a subsystem of punishments imposed only as the main ones, and other types of punishment. In each of these subsystems, there are secondary levels of the analysis involving the internal, «private» subsystems of punishments that perform their function within the whole system. The author concludes that the court’s possibility to impose the main punishment together with the additional ones in certain cases results not from the desire of the legislator to aggravate the responsibility of the guilty but from the will to broaden the discretion of the court when choosing the means to achieve the goals of punishment.

Key words: types of punishment, list of types of punishment, classification of types of punishment, system of types of punishment, main and additional types of punishment, ordinary and exceptional types of punishment, punishments related to and not related to isolation from society, additional and mixed types of punishment, general and special types of punishment

Barkhatova E. (Irkutsk), Vakutin A. (Omsk) Issues of distinguishing the entrepreneurial fraud from the related offences and civil torts

The authors study the judicial investigative practice, comments on criminal-law norms as well as the positions of criminal-law scholars and, on this basis, identify certain offences and civil torts, from which the entrepreneurial fraud should be distinguished. Those include non-fulfillment of contractual obligations, the organization of fund-raising activities, the attraction of citizens’ funds in violation of the requirements of the Russian legislation on equity participation in the construction of apartment buildings and (or) other real estate property. Criteria for making such a distinction are described.

Key words: fraud, entrepreneurial activity, civil tort, contractual obligations, pyramid schemes

CIVIL LAW AND PROCEDURE

Lisachenko A. (Yekaterinburg) Identification of subjects of civil and legal relations: new problems and some solutions

The article examines the existing and prospective ways of identifying subjects of civil legal relations, as well as the urgent issues associated with the need to ensure accurate and reliable identification of subjects of legal relations. The author considers the advantages and disadvantages of biometric and digital identification systems in terms of their use in civil life. The current and draft regulatory acts governing the procedures for identification and authentication of individuals are analyzed. The author identifies some problems concerning the obsolescence of data protection methods and proposes their possible solutions.

Key words: identification, biometric identification system, digital identification system, electronic signature

Vakhitova Yu. (Perm) Legal regulation of theatrical performances: the historical and legal grounds

The article concerns the interrelation of historical and legal grounds that specified the legal protection of theatrical performances as objects of intellectual property rights. The author analyzes the components of theatrical performances, the reasons for the isolation of the stage director as a primary copyright holder, and the doctrinal civil-law approaches, which determined the modern legislative approach to the regulation of theatrical performances. It is concluded that the specific development of theatre has resulted in the need for amending the Civil Code of the Russian Federation, in particular for providing the stage director with additional legal guarantees.

Key words: theatrical performance, complex object, object of neighboring right, stage director

Dvoretskii S. (Sergiev Posad) Issues of the interaction between bailiffs and internal affairs officers during the executive search for a debtor and his property

The article deals with the legal problems faced by the bailiff when executing the court decision, and related to the search for a debtor and his property. The author considers in detail the example from law-enforcement practice, which indicates the lack of the effective interaction between bailiffs and internal affairs officers during the executive search for a debtor and his property. Proposals for improving relevant regulatory instruments are put forward.

Key words: bailiffs, internal affairs officers, cooperation, executive proceedings

LABOUR AND SOCIAL LAW

Demidov N. (Tomsk) Criteria for the formation of the labour-law branch in Russia

The author examines the criteria, which allow legal scholars to consider the labour-law branch independent. He studies the problems of dating the origins of the Russian legislation on wage labour. The subject, method, presence of a codified act, scientific generalizations, social needs, and some other criteria for the formation of the branch of law are critically assessed. It is concluded that the branch of law is a formal-dogmatic construction that is absent in objective reality and belongs to abstract systemology, but has a pragmatic meaning. The recognition of a particular branch of law is conventional and is carried out by scientists due to the prevailing reasoning. The use of any criterion of independence of the branch of law is subjective and not verifiable. The author believes that the presence of relations with certain attributes, normative generalizations, security mechanisms, and social demand are the most coherent criteria for the formation of the labour-law branch.

Key words: branch of law, criteria of independence of the branch of law, labour law, factory law, history of labour law, subject of labour law, method of labour law

Fedorova M. (Saint-Petersburg) The interaction of law and medical ethics in the regulation of the work of medical staff

The article demonstrates the mechanisms of formalization and legalization of medical ethics. Ethical standards of medical activities may be developed by professional medical non-profit organizations. They are given a form of an ethical document that is usually called a code. Rules of medical ethics may be approved by healthcare authorities of the subjects of the Russian Federation and healthcare organizations, and developed into a regulatory legal act. Their effect may be extended only to those medical workers who work under the employment contract. For them, a violation of ethical rules is equated with a violation of labour discipline and might cause negative consequences in a form of disciplinary or material liability, decrease of supplementary payments. For such consequences to be applied the rules of medical ethics must be formalized. The author brings out two forms of such formalization: direct (ethical rules are transformed into legal ones) and indirect (a rule of law establishes the obligatory manner of an ethical rule). These rules may be formalized in the regulatory acts, professional standards, and job descriptions. Based on the analysis of court decisions on labour disputes involving the medical workers who violated the rules of medical ethics, the author concludes that ethical rules together with legal ones may be applied to resolve a particular case. It is proposed to use the construction of statutory regulatory complexes in order to describe the interaction of legal rules and rules of medical professional ethics; the specifics of their formation, contents, and application are identified. The author makes recommendations for improving the legal and ethical regulation which might be addressed to healthcare authorities, professional medical associations, and medical organizations.

Key words: medical worker, medical ethics, labour law, professional standards, employment duties, statutory regulatory complexes

Golovina S. (Yekaterinburg) Wage indexation as a state payment guarantee

Based on the analysis of court decisions and clarifications by the competent state authorities, the author concludes that the question on the ways of indexing wages in organizations not funded from the state budget hasn’t found a clear solution yet. In order to implement the state guarantee providing the increase of real wages, it is proposed to give priority to the imperative method of regulating payment relations by setting minimum standards for wage indexation in non-governmental (commercial) organizations.

Key words: wage indexation, payment guarantees, judicial practice

ECONOMICS AND LAW

Kiskachi M. (Saint-Petersburg) The admissibility of choosing the UNIDROIT Principles as the applicable law in the case of considering a dispute in the court

Today, the conflict choice of the Principles of International Commercial Agreements of UNIDROIT (or any other non-national sources) is permitted only in international commercial arbitration. The author, using the UNIDROIT Principles as an example, disproves the arguments about the inadmissibility of choosing non-national sources when a dispute is subject to consider in the state court. Those arguments include purely dogmatic ones (such sources are not «law») and practical ones (non-national sources do not ensure the completeness of regulation, etc.). The conflict model of autonomy of the will of the parties to a dispute also introduces conceptual restrictions affecting this choice. At the same time, the article explains that the UNIDROIT Principles can serve as the applicable law on equal terms with national regulation. In this regard, it is concluded that there are no good reasons why the admissibility of choosing the Principles should be limited only to cases of arbitration. Moreover, the state always keeps the opportunity to control over the agreements established by individuals by using the super-imperative norms and public order clauses.

Key words: Principles of International Commercial Agreements of UNIDROIT, choice of applicable law, autonomy of the will, imperative and super-imperative norms

Pilikin G. (Yekaterinburg) Legal regulation of relations on the legalization and apostil of official documents

The article deals with the legal regulation of the legalization of the apostille institution in Russian law-enforcement activities. The classification of foreign official documents and the necessary comments on them are given; the features of the use of these institutions in Russian legal reality are described.

Key words: apostille, legalization, Russian official documents, competent authorities, apostille affixing procedure

Kokorev S. (Nizhny Novgorod) On the legal nature of a shareholder agreement in Russian law

The article discusses the legal nature of a shareholder agreement in Russian law, given the civil rights and obligations arising from its conclusion. The author distinguishes two models of this agreement – managerial and administrative one. He concludes that the shareholder agreement is civil, and this entails the existence of contractual obligations regardless of the model of the agreement. In this regard, the peculiarities of the shareholder agreement as an instrument of legal regulation of corporate relations are revealed.

Key words: shareholder agreement, civil contract, agreement, legal nature of a shareholder agreement

PROBLEMS OF LEGAL EDUCATION

Cherepanov V. (Stavropol) On the application of modern information technologies in theory and practice of constitutional law

The article considers two main directions of using modern information technologies in theory and practice of constitutional law. The first direction is related to the organization of a public discussion on topical issues of constitutional law, and for this purpose the special information portal «Constitutional Legal Forum» was created and is freely accessible. At the initial stage of its formation, there are three groups of creative projects, which could be discussed by the scientific community in a round-table format. These projects deal with the urgent problems of electoral reform, the development of the legal potential of the Russian Constitution and the constitutional development of Russian regions. The second direction is associated with the use of information technologies in constitutional-law education. An example is the author’s video course of lectures on constitutional law, which is available on the website of the Stavropol State Agrarian University, as well as on a special YouTube channel. Besides that, the author reflects on the reorganization of the educational process by using the problem teaching method, and that becomes possible through the special information portal «Constitutional Legal Forum».

Key words: information technologies, constitutional law, Constitutional Legal Forum, electoral reform, legal potential of the Russian Constitution, constitutional development of Russian regions

LEGAL HERITAGE

L. S. Mamut on the legal state as an ideologem (the material is presented by S. Kodan)

LIBRARY

Review of the book: Smirnov V. N. The Advocacy in Russia (XV–XXI centuries). – Yekaterinburg: Ural State Law University Publishing House, 2018. – 404 p.