№ 4 / 2017

CONSTITUTIONAL LAW AND PROCEDURE

Belov S. A. (St. Petersburg, St. Petersburg State University, e-mail: s.a.belov@spbu.ru) Reasonableness and rationality in constitutional law

The author tries to draw a line between reasonableness and rationality, to define domains of these two in constitutional law. The attention focuses on reasonableness and rationality in constitutional court practice, basing on the idea that the legal norms are not the only premises in making constitutional decisions by courts, and these decisions involve value, economic and political context. The author concludes that definiteness of law, requiring reasonableness and rationality, demands that the court shows up all these premises, which are the basis of its decisions.

Key words: reasonableness, rationality, constitutional court, constitutional review, values, proportionality

Fedotova Yu. E. (Yekaterinburg, Ural State Law University, e-mail: fedotovaje@mail.ru) Issues of defining the religion and related concepts in the Russian legislation

The author points out that, in the Russian legislation, there are no any definitions of the fundamental concepts regulating the religious sphere of human life. This leads to difficulties in law enforcement activities by allowing an enhanced interpretation of norms or, on the contrary, making the application of them impossible. The author considers dictionary definitions of the religion, belief, confession, exercise of religion, religious practices and, as a result, gives her own definitions of these concepts, which comply with the rules of logics and the rules of legal techniques and promote efficient law enforcement activities.

Key words: religion, faith, confession, exercise of religion, religious practices

COMPARATIVE JURISPRUDENCE

Irkhin I. V. (Krasnodar, Kuban State University, e-mail: dissertacia@yandex.ru) The constitutional status of Gibraltar as an overseas territory of the Kingdom of Great Britain and Northern Ireland

The author analyzes the features of the political and territorial status of Gibraltar as an overseas territory of the United Kingdom of Great Britain and Northern Ireland in the context of its relations with Spain and the European Union. He speculates about the prospects of these relations since the Kingdom has decided to withdraw from the European Union (Brexit). The constitutional status of Gibraltar as well as the constitutional and legal characteristics of its public authorities are investigated. As it is mentioned, there are some legal gaps in constitutional regulation of the powers and competencies of Gibraltar public authorities. The author thinks it would be reasonable to specify the constitutional grounds and the order of reconciling different views on the dissolution of the parliament and the designation of the council of ministers. He also argues that it is useful to lay down in the Constitution the legal procedure of reporting by the Gibraltar government to the House of Commons about its opinion on draft legislation concerning the Kingdom as a whole, as well as the procedure of submitting by the British parliament to its overseas territories draft legal acts affecting the interests of the Commonwealth. The author considers it appropriate to provide the Gibraltar Council’s representation on the UK government. In conclusion he says that there is a complex set of the British, Gibraltar, Spanish, and European interests that determines the current state of Gibraltar. In his view, the contradictions in this part of Iberian Peninsula are likely to grow after Brexit.

Key words: overseas territory of the UK, Spain, European Union, British monarch, Gibraltar, Constitution of 2006

Kuliyev T. A. (Baku, Azerbaijan, Azerbaijan Scientific and Research Institute of economy and agricultural management, e-mail: seyfedini@yandex.com) The legal regime of the property of agricultural consumer cooperatives under the laws of the Republic of Azerbaijan

The article considers the problems of legal regulation of the legal regime of the agricultural cooperatives’ property. The author mentions that the Law of Azerbaijan «On Agricultural Cooperation», passed on 14 June 2016, doesn’t affect the property relations between cooperative members. The cooperative legislation doesn’t guarantees safety of the cooperative property, doesn’t provide for the creation of a reserve and an indivisible fund. In the Azerbaijan Civil Code, there is also no any reference to the establishment of an indivisible fund by cooperative members. Therefore, the author puts forward proposals for improving legal regulation of the property relations in agricultural cooperatives.

Key words: agricultural cooperation, law, Civil Code, property of agricultural cooperatives, Republic of Azerbaijan, Russian Federation

Sivoplyas A. V. (Yekaterinburg, Ural State Law University, e-mail: AVS0201@yandex.ru) Issues of functioning of political parties in the Slovak Republic

The article focuses on the right to associate in political parties in the Slovak Republic. The author analyzes in detail the Slovak legislation on political parties and political movements, considers the procedure for registration of political parties. He describes the financial aspects of political party’s activities and pays particular attention to the formation of the party’s property and its reporting. Besides that, the responsibility for violation of the legislation on political parties is reviewed.

Key words: Slovak Republic, legislation on political parties, political parties, registration of parties, participation of parties in political life, party funding

INTERNATIONAL LAW

Kritskiy K. V. (Moscow, Second Asian Department of the Ministry of Foreign Affairs of Russia, MGIMO University, e-mail: kkritzkiy@gmail.com) Unilateral restrictive measures in the context of international legal coercion

Proceeding from the analysis of normative and doctrinal sources the author examines the issue of coercion in international law. It is emphasized that currently legitimate implementation of coercion is strictly regulated by the UN Charter and circumscribed to sanctions, countermeasures and self-defense. Unilateral restrictive measures that are being applied with ever increasing frequency by certain states are an absolutely different phenomenon. Not being part of modern system of international law such measures are often identified with sanctions and countermeasures – though without sufficient basis for that. The issue of legitimacy of unilateral restrictive measures as a tool of states’ foreign policy is controversial. While advocates and adversaries of unilateral restrictions both have numerous reasons to substantiate their positions and while the issue has rather politicized nature it seems almost impossible to work out common approaches to the issue.

Key words: coercive measures, sanctions, countermeasures, unilateral restrictive measures

ELECTION LAW AND ELECTION PROCEDURE

Konovalchikov I. A. (Novosibirsk, Siberian University of Consumer Cooperation, e-mail: jarush999@mail.ru) The election control accomplished by political parties

The author investigates particular forms of political parties’ control over the election commission activity, which are stipulated by the Federal Act «On the basic guarantees of the Russian citizens’ election rights and the right to vote in the referendum». He refers to the German election legislation which, unlike the Russian one, doesn’t specify the rules of rigid control over the election process accomplished by parties. In Germany such control is founded on the general principle that any anti-constitutional activity is inadmissible. Therefore, the author concludes that there is a lack of efficient legal control instruments for political parties in Russia.

Key words: political parties, public control, election control, election commission, election rights protection, electoral process in Germany

CRIMINAL LAW AND PROCEDURE

Nagornaya I. I. (Moscow, National Research University Higher School of Economics, e-mail: strafrecht@hse.ru) Negligence of a medical professional who causes patient’s death or grave injury to his health

The article deals with problems of law enforcement practice that arise while finding non-intentional fault of a medical professional in cases of infliction of patient’s death or grave injury to his health. The author argues that a person who has special knowledge actually foresees social dangerous consequences in case of recklessness or might / ought to foresee such consequences in case of negligence. A medical professional who unreasonably expects the prevention of social dangerous consequences may overestimate his own knowledge and skills. The guilt of a medical professional who set an erroneous diagnostic is analyzed. It is noted that if an injured patient was treated by several professionals it is necessary to establish the guilt of each one. The author thinks that indirect intent and recklessness could be distinguished by considering the motivations and goals of a medical professional, as well as his mental and physical condition at the time of rendering of medical care.

Key words: medical professional, negligence, indirect intent, recklessness, patient

Nechaev A. D. (Moscow, Scientific Research Institute of the Academy of the Prosecutor General’s Office of the Russian Federation, e-mail: a.d.nechaev@mail.ru)

The article deals with the research paradigms, under which the grounds of (de)criminalization are studied: objective (pluralistic and monistic) and subjective (mixed and voluntaristic). The author also reveals some approaches to the occasions of (de)criminalization. As a result, he proposes his own alternative way of understanding of the grounds and occasions of (de)criminalization.

Key words: criminalization, decriminalization, grounds of (de)criminalization, occasions of (de)criminalization

Khorosheva A. E. (Barnaul, Altai State University, e-mail: khorosheva.defence@gmail.com) Conceptual problems of the formation of forensic techniques in criminal judicial proceedings

The author raises urgent issues of the formation of forensic techniques in criminal judicial proceedings. It is concluded that these techniques, as opposed to the private typical techniques of preliminary investigation of particular crimes, should have a competitive nature, which allows developing new conceptual bases of their formation. In this regard, priority should be given to researches related to the targeting of such techniques, the development of the concepts of trial model and technology of proving.

Key words: competitiveness, litigation, forensic techniques, tactics, defence, public prosecution

CIVIL LAW AND PROCEDURE

Semyakin M. N. (Yekaterinburg, Ural State Law University, e-mail: Misha2008@uralweb.ru) The individualistс conception of private law and its current transformations

The author gives a general characteristic of the individualistic conception as a research model of private law. He outlines main approaches of scholars, including foreign ones, to the matter, and shows some major trends of its transformations in today’s legal and economic dimension.

Key words: individualism, «individualistic» law, private property, civil methodology, personalism, personality, sociocentrism, humanization, social solidarity, public and private interests

Lisachenko A. V. (Yekaterinburg, Ural State Law University, e-mail: fox@ues.ru) Compensation for damages caused by lawful acts of state and local authorities: the practical use and scientific understanding

The article analyzes the application of Art. 161 (compensation for damages caused by lawful acts of state and local authorities) that has been recently introduced in the RF Civil Code. The author discuses the nature of these rules and the prospects of their application, and concludes that it’s incorrect to identify compensation with legal liability.

Key words: civil law, compensation, damages, liability, lawful acts

Formakidov D. A. (Perm, Perm State National Research University, e-mail: formakidov@yandex.ru) The contract of renting dwelling premises as a separate type of civil contracts

The author argues that all four contracts of renting dwelling premises (the commercial contract, the social rent contract, the contract of renting specialized dwelling premises and the contract of renting dwelling premises in the social-use housing stock) constitute unidirectional obligations – an obligation to transfer the real estate (dwelling premises) to a tenant and members of his family in possession and use with a particular set of rights and duties. The author believes that the absence of general provisions on renting leads to the incoherent legal regulation of its types. As a result, it is necessary to include general provisions on the contract of renting dwelling premises into the Russian legislation and to declare this contract a separate type of civil contracts which includes four kinds of contacts.

Key words: contract of renting dwelling premises (commercial one), social rent contract, contract of renting specialized dwelling premises, contract of renting dwelling premises in the social-use housing stock, branch to which the contract belongs, housing legislation, civil legislation

LABOUR AND SOCIAL LAW

Demidov N. V. (Tomsk, Tomsk State University; associate professor of Civil law, West Siberian branch of Russian state university of justice, e-mail: fra_nickolas@list.ru) The implementation of p. 1 p. 1 Art. 81 of the RF Labour Code in the absence of regulation of employee’s dismissal moment

The author underlines that, in the Russian legislation, there is no rules covering the moment of termination of the labour contract with an employee due to the company’s liquidation and analyzes the judicial practice filling this gap. As a result, he concludes that the RF Supreme Court uses a destructive approach to the settlement of disputes on illegal dismissal of employees by an employer taken place at the time of terminating company’s activities. The author asserts that the Supreme Court’s position actually causes employers not to use p. 1 p. 1 Art. 81 of the Labour Code and instead to release employees due to redundancy.

Key words: gaps in labour law, employee’s dismissal, company’s liquidation, judicial practice, RF Supreme Court

ECONOMICS AND LAW

Gurov A. A. (Moscow, Moscow State Bar association Barshchevsky & Partners, e-mail: Advagurov@gmail.com), Kulikov A. S. (Moscow, Kutafin Moscow State Law University, e-mail: Annton94@yandex.ru) A business fraud: matters of implementing an unconstitutional law

The authors point out that there are some problems of qualifying the business fraud committed before Art. 159 of the RF Criminal Code had lost its effect. They think it is necessary to use Art. 1594 of the Criminal Code for qualifying the business fraud if it is committed before the 12 June 2015 and also at the time when Art. 1594 was an interim law. The research focuses at the Russian legislation, judicial practice, including the practice of the RF Constitutional Court.

Key words: business fraud, unconstitutional law, retroactive effect of law, interim law

Zubova E. V. (Moscow, Research Centre of Private Law under the President of Russian Federation, e-mail: e.zubova@privlaw.ru) Shareholder’s agreements: the legal nature and issues of law enforcement

In terms of amendments introduced to the RF Civil Code in 2014 the author considers the basic problems concerning shareholder’s agreements. She analyzes international practices and a domestic approach to the legal nature and legislative regulation of this institution and concludes that shareholder’s agreements have a binding effect. The most significant provisions of Art. 672 of the Civil Code are critically evaluated from both dogmatic and practical points of view.

Key words: shareholder’s agreement, amendments to the RF Civil Code, legal nature

ROUND TABLE «ENSURING ENVIRONMENTAL SECURITY OF INDIVIDUALS, COMMUNITIES AND STATES: THEORY AND PRACTICE OF LAW ENFORCEMENT»

Brinchuk M.M. (Moscow, Institute of State and Law of the Russian Academy of Sciences, e-mail: brinchuk@gmail.com) Sustainable development as the key to ensuring environmental security

The author points out that sustainable development is responding to the need of environmental protection. The decision on sustainable development can be taken only if the requirements of efficient ecological legislation are addressed. Thus, sustainable development becomes a major factor in ensuring environmental security.

Key words: environmental security, Rio Declaration on Environment and Development, sustainable development, ecological requirements, ecological legislation

Klyukanova L. G. (St. Petersburg, St. Petersburg State University, e-mail: lorimar13@mail.ru) The concept of environmental security in the Russian environmental legislation

The article is devoted to the concept of environmental security and its meaning. The author describes the main approaches to interpreting this concept found in the Russian environmental legislation, materials of law enforcement practices and doctrinal sources.

Key words: environmental safety, environmental law, environmental priority, environmental policy

Rusin S. N. (Moscow, Lomonosov Moscow State University, e-mail: snr1959@mail.ru) Environmental security, environmental policy, environmental function of the state, and environmental law

The author argues that environmental policy, environmental function of the state and environmental law are forming and developing simultaneously. In his opinion, policy, function and law became environmental after they had combined the natural resource and environmental components, and then the environmental security insurance. Such a comprehensive understanding of environmental policy, function and law is rather promising and may have a positive effect on the development of legislation and law enforcement.

Key words: environmental policy, environmental function, environmental law, environmental safety

Kruglov V. V. (Yekaterinburg, Ural State Law University, e-mail: ecoland@usla.ru) The environmental security strategy and issues of environmental activities of industrial enterprises

The article provides an overview of the main environmental problems caused by industrial enterprises. Taking into account the main program documents, including the Strategy for Ecological Security of the Russian Federation for the period until 2025 approved by the Decree of the President of the Russian Federation of 19April 2017, the author identifies the tasks to be solved by the subjects of economic activity. Priority directions of the new environmental policy in the course of economic activity are singled out.

Key words: environmental strategy, environmental policy, environmental security, environmental protection, industrial enterprises

Nikishin V. V. (Saint-Petersburg, St. Petersburg State University, e-mail: faculty@jurfak.spb.ru) Environmental security in the Russian Arctic: the system approach in legal regulation

Development of the Arctic natural resources becomes more intensive, thereby it is important to create a system of ecological and legal measures that would help to minimize the adverse impacts of environmental change. The author considers the key parameters of specific modes of environmental management in the Arctic region of the Russian Federation and proposes to introduce the provisions on system legal regulation of the Arctic development.

Key words: Arctic region, natural resources, sustainable development, legal regulation, environmental law, legislation

Buchakova M. A. (Omsk, Omsk academy of the ministry of internal affairs of the Russian Federation, e-mail: mb290163@mail.ru), Vershilo N. D. (Moscow, Russian State University of Justice, e-mail: tvershilo@yandex.ru) On improving the efficiency of environmental control (supervision)

The article raises issues related to environmental control (supervision) in the Russian Federation. The authors examine the conceptual basis, approaches of scientists to considering this administrative mechanism in the system of environmental protection measures and emphasize its importance for environmental protection. They analyze the relationship between the concepts of ecological control and environmental control. It is noted that environmental control is the most efficient mean of regulation among all another environmental protection measures. However, in this area, there are some legal, personnel and financial problems; e. g. the principle of institutional autonomy is not fully implemented in exercising control and supervision activities.

Key words: environmental protection, environmental control, objects of control

Vypkhanova G. V. (Moscow, Kutafin Moscow State University, e-mail: viphanova@mail.ru), Zhavoronkova N. G. (Moscow, Kutafin Moscow State University, e-mail: gavoron49@mail.ru) Current state and the matters of ensuring environmental security

The article investigates the matters of ensuring environmental security though the acceptance of a new strategic planning document in this area. The authors raise issues related to understanding of environmental security, environmental protection, etc., to setting targets and tasks of the state environmental policy and to developing legal mechanisms to achieve them.

Key words: environmental security, environmental protection, state environmental policy, environmental management, sustainable development

MUSEUM OF HISTORY OF SLI - USLA – USLU

Zipunnikova N. N. (Yekaterinburg, Ural State Law University, e-mail: igp@usla.ru) «To establish the University in Irkutsk on the following grounds…»: on the 100th anniversary of the Ural State Law University through the prism of the document

In the course of conversation about the «birthday» of the Ural State Law University the author reflects on the content and peculiarities of the Council of Ministers Regulation of 26 April 1919 on the establishment of the Irkutsk State University. A few possible and promising directions in the study of this document are outlined. The author underlines that the date when the Irkutsk University with its law faculty was founded – 15 September 1918 – had been legitimized. The establishment and the further functioning of the law faculty is perceived as a very beginning in development of the institute of higher education which has become a law university almost a century later.

Key words: state university, Irkutsk, law faculty, regulation, White governments, Council of Ministers, 15 September 1918, centenary, Ural State Law University

LIBRARY

Lenin’s theory of socialistic state: reflections on the monograph by V. M. Syrykh (review of the book: Syrykh V. M. Unknown Lenin: theory of socialistic state (without favour or cringe): Monograph. – Moscow: Yurlitinform, 2017. – 520 p.)