Contents of issue # 10/2014

Modern Approaches to Classification of Legal Persons

T. Y. Khabrieva

academician of the Russian Academy of Sciences, doctor of jurisprudence, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: office@izak.ru

Along with the existing in legislation of Russia division of legal persons into commercial and noncommerсial, which is based on economic criteria, the article substantiates the classification of legal persons according to legal basis into persons of private and public law; it singles out legal entities of transitional forms and defines juridic features inherent to them. Developing the existing provisions of Article 48 of the Civil Code of the Russian Federation, the author proposes a revised general definition of a legal person and the definition of a legal person of public law.

Keywords: organisation, formation, legal person, legal person of private law, legal person of public law, public (solal) role of legal persons of private law, legal persons of public law in civil legal relations.

DOI: 10.12737/5770

The Place and Role of Court in Legal System

V. V. Lazarev

doctor of jurisprudence, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

22/24, Bolshoy Kharitonievsky pereulok, Moscow, 107078, Russia

E-mail: lazarev@izak.ru

For the purposes of articles made in clarifying understanding of the legal system and the characteristics of its components. The legal system assumes features of the evolution and structure: conceptual framework, sources of law, legal ideology, legal mentality, and the institutional part, referring to including the main branches of government and In particular, the court acts, judicial practice. Court in the position of public authority and at the same time the role of civil society institution powerfully harmonizes the legal system. Through the court goes becoming law, realization of the law, and protection of the law. In theory of state and law the place of judgment displayed in light of the general functions of the court and judicial decisions as an important component of communicative legal system. Court of the Russian legal system is primarily intended to serve a social function, referring to his total service of man and society, as well as a comprehensive action to protect specific social rights of citizens. No less important political function. The mere fact that the proceedings are implemented statutory provisions makes judicial acts politically colored. With certain possible to ascertain the impact of the court aimed at raising the cultural level of citizens in general and the formation of legal culture in particular. The Court itself represents the level of culture of contemporary society. And it would be wrong to remove him from performing cultural (ideological) function. Despite the significance oft he marked lines of communication activities of the court, characterized depending on the orientation of the sphere and, qualifying will be truly legal functions — they directly show the place of justice and judicial acts in the legal system. The main one — law enforcement, and three others accompany it and provide: interpretation of law; concretization of law; law making. Results communicative activities Court allow to conclude to the need to implement of its precedential decisions in the legislationof the Russian Federation. Means to solutions, both national and inter-state judiciary. One condition: account national realities. To harmonize national legal system with international law directed Federal Constitutional Law from 04.06.2014 No. 9-FKZ.

Keywords: implementation, court interpretation, the legal system, the European Court of Human Rights, case law.

DOI: 10.12737/5771

The Role of Information in Management of Civil Society: Philosophical and Legal Aspects

L. Yu. Grudtsyna, A. V. Lagutkin

L. Yu. Grudtsyna, doctor of jurisprudence, professor

Financial University under the Government of the Russian Federation

4, 4th Veshnyakovskiy proezd, Moscow, 109456, Russia

E-mail: ludmilagr@mail.ru

 

A. V. Lagutkin, doctor of jurisprudence

Plekhanov Russian Economic University

36, Stremyanny pereulok, Moscow, 117997, Russia

E-mail: a-lagutkin@yandex.ru

In article an attempt to define a place and information role in a difficult legal mechanism of formation and development of institutes of civil society taking into account application to this problem of cybernetic approach is made. In the system of civil society consisting of a set of elements interacting with each other (certain people, their organizations, communities), changing and supplementing each other, the perception, processing and information transfer is that basis which forms their behavior on near and far prospect. In other words, correctly picked up information — is the concrete administrative model applicable to the individual (or social group) taking into account specific conditions and circumstances. The right as information component also is, in the broadest sense, administrative model in which by means of certain information (scientific and legal, the current legislation, comments to the legislation, speeches of politicians, jurisprudence, etc.) the behavioural program of society, civil society depending on circumstances is corrected. At first the relations in society have to arise and be created, and then come a phase of their regulation by the law. The dual social and legal nature of a phenomenon of civil society in Russia consists that, on the one hand, it grows not “from below”, and is formed “from above”, at will of the state having opportunity to operate development of civil society by means of information, perceived by its institutes, on the other hand, civil society represents the difficult open social system which development qualitatively depends on development of elements making it. Dialectic possibility of such development is provided by information which elements of system exchange and which completely can’t be controlled by the state.

Keywords: civil society, information, social system, cybernetics, management, state, fluctuation, human rights, social environment, self-organization, ideology, energy, safety.

DOI: 10.12737/5772

Public Administration “On the Ground”: Some Issues of Russian and Foreign Experience

V. E. Chirkin

doctor of jurisprudence, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: vechirkin@yandex.ru

When studying public administration on the ground cannot be limited only to local government in municipal law. Metro areas in Russia and the larger territorial public groups in foreign countries are not, strictly speaking, the “municipalities”. This governmental regional education some other kind. Therefore in European continental system (Russia still closer to the Anglo-Saxon system) in such entities, “on the ground” have not only elected bodies (both at the grass-roots level), but also by top officials of the general competence (their bodies). Although they are concerned with public values or values of constituent entity of the Federation, they do so at the local level, manage, resolve issues “on the ground”. All this is somehow out of our attention (while in Moscow in municipalities (grassroots units) are also appointed by the Council, in the areas of St. Petersburg (regional unit) — appointed heads of districts, bringing together a total of 110 local municipalities). They work closely with the elected bodies in foreign countries, especially with the President of the Council (the local executive power) regional public education. Therefore, true understanding of local government in such regional sui generis municipal entities, as well as in the municipalities of the grass-roots level, (and the community) can only be achieved by studying the local governance in general. Course of municipal law too narrow. It could teach more broadly as “local public administration and self-administration”.

Keywords: public administration, local government, municipal self-government.

DOI: 10.12737/5773

Problems of Verification of Constitutional Norms

V. V. Ogleznev, V. A. Surovtsev

V. V. Ogleznev, doctor of philosophy, associate professor

The Institute of Humanities, Social Sciences and Technologies at the National Research Tomsk Polytechnic University

30, Lenin Prospekt, Tomsk, 634050, Russia

E-mail: ogleznev82@mail.ru

 

V. A. Surovtsev, doctor of philosophy, professor

The National Research Tomsk State University

36, Lenin Prospekt, Tomsk, 634050, Russia

E-mail: surovtsev1964@mail.ru

Authors by means of modern formal logic offer a new original interpretation of the nature of the constitution in general and constitutional norms, in particular. Authors prove that the analysis of legal norms if it has to be considered as valid is based on the following presuppositions: effectiveness, hierarchy, reality. The key point of the article is a comparison of the constitutional text with fictional fairy tale story. The authors interpret the character and nature of the constitutional norms by illustrating they conclusions on the example of an immersion of four logical forms of categorical propositions (universal affirmative — A, universal negative — E, particular affirmative — I, particular negative — O) in predicate logic, described in Herbert Hart’s article “A Logician’s Fairy Tale” (1951). The authors articulate that the Constitution can be compared with the axiomatic system in the modern science only in the sense that is given in research on logic and methodology of deductive sciences. The main problems with verification of constitutional norms arise because of their correlation with the facts so complex that sometimes this relationship is not so simple to establish. This approach allowed the authors to prove that, in fact, constitutional norms are contextual definitions of general concepts by which particular rules of the legal system are formulating.

Keywords: constitution, formal logic, legal validity, legal rules, ontology of law.

DOI: 10.12737/5774

Interaction of Parties of Payment System: Issues of Formation of Guarantee Fund

M. K. Belobabchenko

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: alpatova@mail.ru

After the entry into force on January 1, 2014, in full, of the Federal law No. 161-FZ “On the National Payment System” and the practical application of the norms of the mentioned law, when the payment systems in the Russian Federation, has identified the need to clarify and making some changes in the rules of this law regulating the procedure for the formation of separate structures of the payment system, ensure the effectiveness of its activities. This applies, for example, order of creation and use of the guarantee Fund specific payment system, the order of payment of the COP guarantee fees to ensure the satisfaction of the claims for the obligations. The author has proposed changes on the order of formation of the guarantee Fund of the payment system its participants. A large number of regulatory acts, developed by the Bank of Russia, as the body exercising supervision and control over activities of the payment systems, devoted to questions of protection of information in the process of transfer of funds, including in electronic form, as well as division of responsibility between participants of the payment system for determining the order of protection of information.

Keywords: payment system, the guarantee Fund of the payment system, electronic funds transfer funds.

DOI: 10.12737/5775

Authors’ Rights as Human Rights

E. I. Kaminskaya

PhD in law

Moscow State Institute of International Relations (University)

76, Prospekt Vernadskogo, Moscow, 119454, Russia

E-mail: e.i.kaminskaya@mail.ru

The article is aimed at searching the authentic legal nature of copyright. The author demonstrates the ways the specific and subtle background of copyright can reveal itself through inner conflicts of interests of author, on the one hand, and users (sometimes going to society in general), on the other hand. More visible are conflicts of laws, since copyright is deprived of the quality of extraterritoriality and bears strongly national features, distinguishing from one legal system to another as to standards of copyrightability of works, possible owners of copyright, subjective rights granted them by law and forming the copyright, legal remedies and general along with specially provided conditions of protection. Those numerous collisions, all of which are familiar and proper to the abovementioned intellectual property scheme, have always gravely stumbled its advancement. They present even deeper danger to the copyright of the new millennium, with its greater possibilities to distribution and use of copyrightable works and, thus, of practical infringement of the rights vested in their authors. As a result, unexpected new conflicts are born by the novels brought into national statutes aiming at resolve the old conflicts, and copyright goes into blind valley without visible way out. Author of the present article believes that the only possible way out be searching the true core of copyright to be taken as the non-variable foundation of every given special scheme, whether concerning list of infringements punished by law, or exonerations from civil liability (such as examples of fair use of copyrightable works). Copyright revealing as human right in every aspect of its existence — whether moral or pecuniary, whether monopoly or subject to restrictions, — such is the basis of copyright able to support legal decisions undertaken in order to favour authors or, incidentially, users or copyright. The author of the present article insists that such unique and whole constitutional foundation be given actually to copyright and be necessarily followed by copyright protection rules in development. Otherwise, separate and autonomously brought amendments could not only turn vain, but also initiate further, and possibly more cruel, conflicts. More than that, the said unique foundation should be undertaken as universal, forming mainstream of international agreements. While illustrating this conclusion, the article focuses on special legal decisions newly appeared in Russian copyright law, very often as the result of participation of the Russian Federation into international agreements and treaties, bi-lateral as well as multilateral. Amongst those novelties is accentuated the status of publicator which is cited in the article as an example of conceptually ill-balanced legal scheme.

Keywords: author, copyright, protectable works, monopoly, natural rights, rights of person, conflict of interests, principles and rules of international law, the Constitution of the Russian Federation, the Part Four of the Civil Code of the Russian Federation.

DOI: 10.12737/5776

Release on Parole from Serving Sentence and its Application

O. V. Makarova

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: Makov71@mail.ru

The release on parole from serving sentence is the important institute of criminal law, stimulating law-abiding behavior of persons, committed a crime and condemned to imprisonment. The existing Criminal Сode of the Russian Federation allows any condemned to imprisonment to petition for the release on parole, including condemned to lifelong imprisonment. Given opportunity testifies to humanism and liberalism manifestation in relation to condemned and is undoubted achievement of the legislator. On application of the release on parole from serving sentence it is important not only to allow the persons, which have followed a way of correction, to leave imprisonment places ahead of schedule, but also, on the contrary, not to allow an early release of persons who actually didn’t follow a correction way. The solution of the problem is possible thanks to joint efforts of the legislator and law enforcers. In the article on the basis of the analysis of scientific legal literature and jurisprudence theoretical and practical problems of application of the release on parole from serving sentence are considered. Frequent changes of the article 79 of the Criminal Code of the Russian Federation, testifying to lack of system approach of the legislator in the solution of the question of the release on parole are subjected to the critical analysis. The specified problem in the aggregate with the lack of uniform law-enforcement practice, according to the author, reduce value of the release on parole as incentive institute of the criminal law stimulating condemned to the law-abiding behavior.

Keywords: crime, punishment, condemned, court, imprisonment, release on parole.

DOI: 10.12737/5777

Multiple Offences in the Modern Doctrine: Notion and Features

E. G. Shkredova

PhD in law, associate professor

Smolensk University for Humanities

2, Gertsen st., Smolensk, 214014, Russia

E-mail: evashkredova@mail.ru

The article is devoted to the investigation of the conception concerning multiple offences in the modern criminal law doctrine. The author analyses different points of view of the scientists on the definition of multiple offences and comes to the conclusion that in the definition and the analyses of the signs of this or that phenomenon it is necessary to show its essence. In the conclusion a number of doctrinal views of multiple offences is criticized. In the connection our own view on the definition of multiple offences and its signs is suggested.

Keywords: multiple offences, criminal law consequences, criminal-procedure obstacles.

DOI: 10.12737/5778

The Principle of Language of Court Proceeding: Content and Guarantees

T. Yu. Vilkova

PhD in law, associate professor

Kutafin Moscow State Law University

9, Sadovaya-Kudrinskaya st., Moscow, 123995, Russia

E-mail: tvilkova@yandex.ru

The article deals both with the rules that govern the language suitable for criminal procedure in the Russian Federation, and with the set of procedural measures ensuring the right to a criminal proceeding of the party, which does not master or has insufficient knowledge of the language used during the criminal proceeding, to use their mother tongue or any other language that they have proficiency in, including their right to have a charge-free interpreter according to the established law. Author used abstract-logical, comparative-legal, formal-legal and historical methods. The article reveals the meaning of the rules for the language that is used in criminal procedure and accessible to any party in a sense of fulfillment of the criminal procedure tasks (article 6 of the Criminal Procedure Code of the Russian Federation) ensuring the right of the accused to a fair trial (article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms). There was an analysis of the statements deemed to provide the parties with the knowledge of criminal procedure language, the parties being authorized to make decisions at different levels of a criminal proceeding; in particular, the statutory requirements to master the language of criminal procedure for the applicants for the position of investigation officer, interrogation officer, prosecutor, judge, as well as for the applicants for the position of juror. There was a list of criteria based on which it is possible to say whether or not the party to a criminal proceeding masters the language used during the criminal proceeding to an extent sufficient for the protection of his or her rights. The article then deals with the statements deemed to provide for a charge-free interpreter and the extents which the written translation might have been applied to. Only the proceedings subject to be given to the corresponding party (not all the case materials) shall be translated into the language that this or that party to a criminal procedure has proficiency in.

Keywords: law, criminal trial principles, language, guarantees, translation, interpreter.

DOI: 10.12737/5779

Judicial Practice of Re-Adjudication of Entered into Force Court Decisions in Civil Procedure

N. Yu. Zabramnaya

The Bar “Moscow Legal Center”

3/5, Maly Poluyaroslavskiy per., Moscow, 105120, Russia

E-mai: natamatveev@yandex.ru

This article reviews the history of origin and development of the such base for revision сourt decisions in force on new circumstances in civil process as definition or change of practice in the application of legal norm in the decree of the Presidium of the Supreme Court of the Russian Federation or in the decree of the Plenum of the Supreme Court of the Russian Federation. The author has studied jurisprudence and оpinions of scientists on this subject and author concludes that its need to make changes into the Code of Civil Procedure of the Russian Federation and proposed a new edition of the item 5 of part 4 of the article 392 of the Code of Civil Procedure of the Russian Federation. According to the author, judicial act, which entered into force, may be revised on this basis, if in the corresponding act of the Supreme Court of the Russian Federation indicated on the possibility of revising the Court orders, which have entered into force, under the new circumstances by virtue of the circumstances. In addition, the author suggests adding the item 5 of part 4 of article 392 of the Code of Civil Procedure of the Russian Federation the provision that revision court decisions, which entered into legal force, allowed in the specified case, If as a result of new interpretation of the law the position of the subordinate (weak) side in a public legal relation does not deteriorate.

Keywords: new circumstances, revision of judgements, civil process, judicial practice.

DOI: 10.12737/5801

Procedural-Legal Forms of Provision of Consensus in the Field of Public Administration

Yu. E. Avrutin

doctor of jurisprudence, professor

Saint Petersburg University of the Ministry of Internal Affairs of the Russian Federation

1, Letchika Pilyutova st., Saint Petersburg, 198206, Russia

E-mail: axx2006@mail.ru

The article deals with the problem of shortages of public confidence in government, caused by improper public administration, offered his own definition of consensus in the public administration as a qualitative result of the right of citizens to proper public administration, reflecting a fundamental acceptance for its usefulness, quality, efficiency; analyzes the legal tools to achieve it. Grounded circuits multidimensional logical-conceptual model of the use of these instruments, which are highlighted and disclosed: a procedural form of positive production, creating a regulatory framework of proper public administration; procedural form — administrative justice as a procedural framework to ensure, “patterns in the management”, “prevention and suppression of administrative injustice”, forming the full mechanism of protection of the state and society from unlawful legal acts, decisions and actions of the public authorities, officials, state and municipal employees; alternative (neyurisdiktsionnye) authorization forms of legal and administrative disputes providing the parties an opportunity on an equal basis to take the initiative to resolve any differences over the public administration, while coming to a compromise or consensus.

Keywords: conflict, compromise, consensus, administrative justice, the administrative process, administrative process, administrative procedures, extrajudicial conciliation.

DOI: 10.12737/5802

Tax Sanctions: Notion, System and Prospects of Development

O. O. Zhuravleva

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: ozhura@gmail.com

Modern states are searching for new instruments to encourage voluntary compliance by taxpayers. The Russian Federation states on the same way. The improving of national tax sanctions system should base on scientific analyses modern approach and international experience. The article devotes to the examination of Russian tax sanctions system, relationships between tax penalties and different types of tax offences in light of some tendency in modern taxation. Collateral sanction is unusual instrument for majority of countries, but it also motivates to comply with tax obligation. Author concludes that the taxpayer’s information plays an important role for prevention offences and for tax comply. It proposed to use in Russian tax legislation new instruments for encourage compliance, for example such measure for some types of tax offences as notification. This paper suggests that Russian system of tax sanction should be reform and develop according to principals such as legality, fairness, equality.

Keywords: principles, tax sanction, system of tax sanction, collateral sanction, penalties, fairness, certainty, equality.

DOI: 10.12737/5803

Anti-Corruption Monitoring Mechanisms in Activities of International Organizations at Universal and Regional Levels

A. A. Kashirkina, A. N. Morozov

A. A. Kashirkina, PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: ccla1@izak.ru
 

 

A. N. Morozov, PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: ccla1@izak.ru

In the scientific article explores the issues of monitoring and evaluation of the implementation by States of international treaties in the field of combating corruption. The definition of the international anti-corruption standards. There are problems that arise during the implementation, monitoring and evaluation of implementation by States of international anti-corruption commitments under various international organizations, including the UN, OECD, Transparency International. We investigate various criteria and indicators for the international monitoring of manifestations of corruption, including political, legal, informational, social indicators based on the experience of functioning of various international organizations.A legal definition of indicators the evaluation of anti-corruption mechanisms and their classification. Explores the role of individual indicators in the international monitoring and evaluation of the manifestations of the level of corruption in the framework of the UN, OECD, GRECO and other international organizations. Proposals for the formation of the Eurasian anticorruptional strategy in promotion of Eurasian integration.

Keywords: international monitoring, corruption, anti-corruption standards, international treaties, international organization, Eurasian anti-corruption strategy, Eurasian Union, the global Programme against corruption, the Convention of United Nations against corruption.

DOI: 10.12737/5804

The Role of Declarations on Cooperation of States in the Arctic and International Law

V. R. Avkhadeev

PhD in law, associate professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: mp@izak.ru

The considerable part of modern sources of international law regulating relations arising in the cooperation on the Arctic region is Declaration. The legal validity of these declarations is determined by their place in the system of sources of contemporary international law. In this article, the author analyzes the declaration relating to issues of cooperation in the Arctic region for compliance with sources of international law referred in Article 38 of the Statute of the International Court of Justice.

Keywords: Arctic, sources of international law, international convention, international custom, judicial decisions and the teachings of the most highly qualified publicists.

DOI: 10.12737/5805

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