Contents of issue # 4/2014

Requalification of Criminal Offenses after Change of Criminal Legislation

V. P. Kashepov

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: crim@izak.ru

This article discusses the signs algorithm qualifications specific breaches of the criminal law to be applied when it is changed in the process of verifying qualifications, make mistakes when implementing retraining offenses under criminal law changes and remedies at various stages of criminal proceedings.

Keywords: signs and stages of qualification forms of violations of criminal law, the legal consequences of changing the law, appellate review of qualification.

DOI: 10.12737/2913

Legal Aspects of Turnover of Agricultural Lands in Post-Soviet Russia

S. A. Lipski

doctor of economics

The State University of Land Use Planning

15, Kazakova st., Moscow, 105064, Russia

E-mail: lipski-sa@yandex.ru

The article is considering the development of the legislation regulating the turnover of agricultural lands in post-Soviet Russia. Such legislation is very peculiar, taking into account the complete ban of the civil turnover of land plots in the Soviet period and the lack of legal regulation of this problem in the active phase of the land reform (the middle and the second of the half 1990 years). The author used abstract-logical, comparative-legal, formal-legal and historical methods. The article highlights the stages in the development of legislation, their peculiarities, as well as the main tasks at these stages. Also the different sectors of modern domestic agricultural land use were revealed and the main differences in their legal regime were investigated. The main attention is paid to the Federal law “On turnover of agricultural lands” (2002), the conditions in which it was enacted, and its subsequent adjustments. The general conclusion is that the legislation which is regulating the turnover of agricultural lands, despite the its high dynamism and excessive politicization, turned out to be more stable than the other parts in the land policy of the state and the laws which define of such policy. The nearest prospect of the development of the legal mechanism for regulating the turnover of agricultural lands was reviewed. Also this article analyzes key factors which are affecting on this prospect.

Keywords: agricultural lands, turnover of lands, property, land shares.

DOI: 10.12737/2914

“Effective Contract” in Labor Law

S. N. Eremina

associate professor, PhD in law

Southern Federal University

105/42, Bolshaya Sadovaya st., Rostov-on-Don, 344006, Russia

E-mail: sneremina@bk.ru

In the Russian legislation of the 20th century the terms “contract” and “employment agreement” were used as synonyms. With the adoption of the Labour Code of the Russian Federation this duality has been eliminated. The agreement under the name “Employment Contract (Agreement)” has come to be used as the basis for the emergence of labor relations with employees, and the agreement under the name “Contract (Service Contract)” has come to be used as an agreement with those entering state service institutions. For example, in accordance with the Federal Law of 27.07.2004 No. 79-FZ “On State Civil Service of the Russian Federation” a person entering any state service institution has to sign a formal agreement under the name “contract”. Recently the term “effective contract” has been introduced into the documents of the Russian Government. “Effective contract” is an employment agreement with an employee whereby his duties, responsibilities and the terms of payment are specified. It includes assessment indicators (indices) for measuring the efficiency of the employee’s performance with the view of assigning monetary incentive payments to him depending on the results of his work and on the quality of services being rendered; it also serves as a measure of social support. It is true that the performance of such sectors of economy as healthcare and education, for instance, must be improved and their efficiency increased. Still, an “effective contract” for an employee is legal nonsense. The purpose of the author is to argue that on the basis of Russian labor laws and, above all, of the Labour Code, it is solely “employment agreement” that an employee shall enter, however identical the conceptual categories of “contract” and “employment agreement” might seem. These concepts are not recognized synonyms in Russian law. Hence, there is no need to substitute the name “effective contract” for the name “employment agreement”. Such a renaming will not contribute to the accessibility and better efficiency of education, healthcare and other public sectors of Russian economy. Similarly, it will not help to increase the level of their performance. The author concludes that the current labor legislation contains all the necessary elements to regulate labor relations in public sectors of economy, so no “effective contract” is needed.

Keywords: effective contract, employment contract, contract with state employees, the Labour Code of the Russian Federation, employee, employer, labour legislation.

DOI: 10.12737/2915

On Accuracy of the Terminology on Adoption of Law

V. Е. 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

This article deals with established over the centuries, the democratic, but not always in conformity with the same constitutional provisions, general formulations: laws are passed by the Parliament, the Parliament is the only legislative body, the laws are approved by one Chamber of the bicameral Parliament, the role of the head of State when adopting the law. There are different ways to adopt an act: the parliamentarian one, subparlamentarian (standing committees, sections and resolutive commissions of the Parliament), overparlamentarian (bodies, which included the Parliament), extraparliamentarian (adopted by referendum etc.), delegated and reglamented legislation. Reviews articles 105 and 107 of the Constitution of the Russian Federation. Contrary to article 105 legislative text adopted by the State Duma, if it does not overcome the veto other Chamber or the head of State, not yet the law (it’s not). In other cases, the date and number of the Act are also put in the next not when it passed by the Duma, but after the signature of the President of the Russian Federation.

Кeywords: enactment of law, parliament, ways to adopt an act, head of State, reglamentеd legislation, delegated legislation.

DOI: 10.12737/2916

The Doctrine of Rule of Law and Judicial Legal Positions

S. A. Gracheva

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: theory@izak.ru

The article comprises the analysis of the determination of the nature and essence of the rule of law as a doctrine and the general legal principle. The text explores the problem of correlation with the rule of law essential domestic legal principles — supremacy of the constitution, supremacy of the statute law, law-governed. The article focuses on the assessment of substantial characteristics of the rule of law in the judgments and legal positions of some international and national courts.

Keywords: rule of law, law-governed, supremacy of the constitution, supremacy of the statute law, judgments and legal positions of some international and national courts.

DOI: 10.12737/2917

Tradition and Modernization in Law: Comparative-Legal Aspect

T. V. Shatkovskaya

doctor of jurisprudence

The South Russian Institute of the Russian Presidential Academy of National Economy and Public Administration

70, Pushkinskaya st., Rostov-on-Don, 344002, Russia

E-mail: shatkovskaya.tv@gmail.com

The integrative processes of modern state-legal development make the problem of cultural variety actual. The stability of a social system is based on inheritance of the most efficient regulation tools from generation to generation. In its turn modernization prevents from stagnation of the system and makes it possible to form new models of social ties. The author proves dialectical interconnection and interdependence of a tradition and modernization. The legal categorization of the subject of study is necessary for working out the methodological tools of juridical activity in a modern state. The bases of the modernization theory are formed by the real processes characteristic of the western civilization in its relation with the historical- legal development of other national systems. Modernization implies a new quality of social development on the whole. The modernization processes should be aimed at changing the way of subjects interaction inside the system. In the author’s opinion, the primary target of law modernization should be widening of people representation participation in the right establishment activity. Traditions are considered as one of the manifestation of such a natural human quality as sociality. The author determines the traditions’ formation by the character of intercultural exchange between social groups. The sources of traditions are rooted in the mass unconscious behavior. When we correlate traditions and modernization, we should take into account the fact that any society is traditional. The opposition of traditions to innovations leads to the deformation of the current system of values? And it also results in the appearance of new defensive strategies in society.

Keywords: law, law tradition, law modernization, innovation.

DOI: 10.12737/2918

Legal Regulation of Feeding of Persons, Serving a Sentence in Institutions of Penal System

V. L. Barankov

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

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

E-mail: social@izak.ru

In the article considers the legal regulation of relations connected with the organization of supply of inmates in the penitentiary system, discusses binding standards for correctional facilities for material and social support of convicts. The subject of the study is related to the question that began at the moment the process of integrated improving the regulatory framework to ensure the realization of the rights of certain categories of people power.

Keywords: organization of feeding of convicts, material and social support of convicts, healthy diet, the concept of development of criminal-executive system, the placement of state orders.

DOI: 10.12737/2919

Justice for Juveniles: Broad Interpretation

N. M. Кhromova

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

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

E-mail: hromova-nm@yandex.ru

The author in the research devoted to justice concerning minors, considers it as part of social policy of the state. State approaches on realization of social policy, by means of the analysis of the federal legislation and other bylaws are for this purpose investigated. Also the analysis of the international documents concerning juvenile justice and their introduction in the national legislation is provided. The author provides the short analysis of features of mentality in teenage age and its influence on behavior of the minor, his ability of an assessment and perception of in society. Such analysis allows the author to draw a conclusion on importance of knowledge of the specified features at investigation of criminal cases concerning minors and administration of justice on such affairs. For interest of readers historical information on justice development concerning minors is given in Russia where existence of specialization of judges on affairs in the relation of minors is noted. The current state of judicial system of Russia concerning administration of justice concerning minors, and also court role is analyzed. Result of research is the conclusion about need of creation for Russia juvenile justice.

Keywords: juvenile justice, juvenile policy, juvenile court.

DOI: 10.12737/2920

Insignificance of Offense in Criminal Law: Features and Forms

V. N. Vinokurov

PhD in law

Siberian Law Institute of the Federal Drug Control Service of Russia

20, Rokossovskiy st., Krasnoyarsk, 660131, Russia

E-mail: VinokurSiblaw@mail.ru

The second part of the Article 14 of the Criminal Code of the Russian Federation comprises a provision that an insignificant act that doesn’t pose a threat to the society but having formal characteristics of any criminal act provided by the Criminal Code of the Russian Federation is not deemed to be a crime. With the aim to correct and uniformed application of the Criminal Code’s provision the article deals with characteristics and forms of insignificance of these acts. The analysis of scientific literature and the practice of the Supreme Court of the Russian Federation gave the author an opportunity to mark out the following characteristics of the insignificance of the act. Firstly, it is a subjective characteristic. The act should be committed deliberately. Secondly, a punishment for this act should be provided only by the Criminal Code of the Russian Federation. The forms of the insignificance of the act are committing acts manifesting themselves in (1) producing and transporting physical objects in area: weapons, property items and valuables, handing over as a bribe, documents containing false data; (2) infringing upon personal non-property rights such as short-term deprivation of liberty, violation of inviolability of home, inviolability of private life; as well as committing acts, having characteristics of the corpus delicti of the crimes against the interests of public service when consequences are described by evaluative characteristics.

Keywords: insignificance of act, small harm, consequences, offence.

DOI: 10.12737/2921

Actio Negatoria in the Russian and Foreign Law

S. A. Sinitsyn

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: SynSS@mail.ru

The article considers some issues relating to the concept, subject matter, grounds, scope of application of a negatory action in the Russian and German civil law (the latter being the closest to the former). A special attention is given to specific features of the negatory action in the light of the current reform of the Russian civil law.

Keywords: protection of corporeal rights, concept and scope of application of a negatory action.

DOI: 10.12737/2922

Extremism in Great Britain: Methods of Counteraction

N. A. Golovanova

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: foreign1@izak.ru

The article explores the problems of the legislative regulation of the counteraction of extremism in the United Kingdom. This problem has become especially topical in Russia lately. It analyzes the current legislation, law enforcement practices and the government’s program to counter the different types of extremism. Author used abstract-logical, comparative-legal, formal-logical methods. Due to the lack of codified legislation legislative regulation is performed via a large number of statutes examined in the article. The author comes to the conclusion that there is no statutory definition of extremism in the UK. However its absence is made up for by law enforcement practice. The latter distinguishes several kinds of extremism: violent extremism, domestic extremism and hate crimes. This conclusion is confirmed by the analysis of case law. The author draws particular attention to hate crimes which, according to the British legislator, constitute any crimes committed against another person or his/her property and motivated by hostility to that person on the grounds of disability, race, religion, gender identity or sexual preferences. The article highlights the current tendency towards tightening the responsibility for such crimes.

Keywords: violent extremism, domestic extremism, hate crimes, incitement to racial and religious hatred, offenders, criminal law, practice, prevention.

DOI: 10.12737/2925

International Legal Obligation to Respect Human Rights: Basic Elements of Content and Scopes

N. N. Lipkina

PhD in law

Saratov State Law Academy

1, Volskaya st., Saratov, 410056, Russia

E-mail: eurolaw@sgap.ru

Analysis of the principle of respect for human rights and fundamental freedoms, which is one of the basic principles of international law, definitely, has not only theoretical but also practical importance. Key provisions of the principle must be taken into account while implementing of any specific international obligations in the field of human rights. The purpose of this article is to identify the main elements of the principle of respect for human rights and fundamental freedoms at the present stage of development of international law, analysis of trends of development of its content. In the line of the specified objectives of the study the following new elements and tendencies of development of the maintenance of the principle are of particular relevance: first, the development trends of types of commitments included in the content of the principle, in particular, development and consolidation of such types of obligations as obligations to prevent, to respond to, to rebuilt and to punish; second, the strengthening and expansion of practice of recognition of state’s responsibility for human rights violations on the part of so-called non-state actors; third, the evolution of the content of the principles of the responsibility to protect and responsibility while protecting; fourth, the concept of state’ margin of appreciation as well as the principle of cultural relativism which are well established in the International Human Rights Law, are faced with new challenges in modern international law. Thus, the content and limits of the principle of respect for human rights and fundamental freedoms is undergoing significant changes at present and all new trends and challenges require a careful study.

Keywords: human rights, principle of respect for human rights and fundamental freedoms, positive obligations, responsibility to protect, general international law.

DOI: 10.12737/2923

Modern Trends of Development of the Law of International Trade

M. V. Mazhorina

PhD in Law

Moscow State University of Law by the Name O. E. Kutafin (MSLA)
9, Sadovaya-Kudrinskaya st., Moscow, 123995, Russia

E-mail: mazhorina@inbox.ru

A considerable complication of cross-border trade relations involves the development of the regulatory system. This is reflected in the emergence of new forms of existence of rules corresponding to the dynamic development of the market. There is the complication of known contractual structures in need for adequate legal regulation. International trade law in its classic sense is no longer relevant and do not reflect the essence of regulated relations and the emerging diversity of regulatory mechanisms. At present time, we can quite clearly see the tendencies of the modern law of international trade, some of which are studied in this article. Thus, among the modern tendencies of the law of international trade there are the following: the movement from the legal to the regulatory mechanism of regulation; a strong interest of the international business community as a new rule-making subject in the norms of a special kind — the principles and rules of cross-border trade, which are systematized in the relevant codes of rules; the evolution of understanding of the modern lex mercatoria; the expansion values of the precedent as a source of regulation of crossborder trade and etc. The study of tendencies will form a clear idea of the evolutionary processes that are taking place today in law of international trade as a system of principles and rules regulating the cross-border trade relations.

Keywords: international trade, applicable law, conflict of laws regulation, lex mercatoria, Principles of UNIDROIT, international commercial contracts.

DOI: 10.12737/2924

 

Bids in the Field of Water-Management

I. A. Rovenskaya

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

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

E-mail: study@izak.ru

The article focuses on unification of the trade legislation with the environmental legislation; the article considers the relationship between public and private law in the field of water industry. The article describes the basis for the conclusion of water use contract, water supply contracts. The article offers prospects of trades water use.

Keywords: water industry, surface water use, waterbody, water resources trading, tender, auction, сompetition, concession, trends and prospects in water use, water in the green economy, green laws for water.

DOI: 10.12737/2926

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