Contents of issue # 5/2014

Sovereign Equality of States in the System of Basic Principles of International Law

O. I. Tiunov

doctor of jurisprudence

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

In the article have defined of the role of the principle of the sovereign equality of the states in the system of the principles of international law. The contemporary of the signs of the sovereign equality became aparent the grand total of the development of the international law. Its substance development was under the influence of the different history formations. The Charter of the United Nations there is the basic document of the contemporaneity in which has sealed the principle of the sovereign equality of the states as the part of the system of the principals the modern international law. The legal signs of the sovereignty appears on the supreme sovereignty within the limits of the state, and they must be independence of the state in the international relations. The basic principles of international law there are interdependence. They must be conform to the context each other.

Keywords: signs of the sovereign, sovereign equality, basic principles, the Charter of the United Nations, supremacy of the state, independence of the state.

DOI: 10.12737/3457

Legal Status of Technical Committees on Standardization in the Russian Federation

L. V. Andrichenko, V. Yu. Luk’yanova

L. V. Andrichenko, 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: lvandr@mail.ru

 

V. Yu. Luk’yanova, PhD in philosophy

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

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

E-mail: vlada.lukianova@rambler.ru

Federal law on technical regulation introduced into the national standardization system a new entity — technical committees for standardization. Currently it is a technical Committee on standardization are permanent working bodies in the sphere of standardization and define priority directions of development of standardization in their respective fields. However, the uncertainty of their legal status diminishing the effectiveness of the standardization activities. The authors of the article, having considered the most important problems of legal regulation of the status of technical committees for standardization, sharing their vision of the optimal ways to solve these problems.

Keywords: technical regulation, standardization, national standardization system, technical committees for standardization, national standard, expertise of the draft legal act.

DOI: 10.12737/3458

Legal Regulation of the Institute of Rehabilitation in the Russian Criminal Procedure

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

This article presents the problems of legal regulation of various aspects of institute of rehabilitation of persons, affected by unlawful and baseless criminal prosecution. Terms “rehabilitation” and “rehabilitated” used in the Law and also a list of grounds and a scope of persons entitled to rehabilitation are exposed to the critical analysis.

Keywords: rehabilitation of innocents, criminal prosecution, judgment of acquittal, termination of criminal case.

DOI: 10.12737/3459

Administrative Permit System: Origin and Content of the Modern Concept [part one]

A. F. Nozdrachev

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: adm1@izak.ru

The authorization system is one of the most important administrative institutes of the Russian law and order. In article the concept, appointment and the basis of introduction of an authorization system is investigated; concept «administrative permission», its forms; classification and categorization of permissions is carried out; the fundamental principles of an authorization system and timely tendencies of its development come to light. Permission represents the individual administrative act adopted by authorized government body, carrying out functions in the allowing sphere within the provided competence, addressed to particular natural or legal entities — subjects of allowing legal relationship, and attracting their emergence, change or the termination. Permission can be accepted only during performance of the established allowing procedures with observance of a special form and according to Law requirements. For the solution of problems of ordering of an authorization system and improvement of law-enforcement practice author’s classification of permissions by functional criterion and their categorization by degree of danger of adjustable activity is offered. As a result of such classification the exhaustive list of permissions by types and categories can be created.

Keywords: authorization system, administrative permission, legal forms of permissions.

DOI: 10.12737/3460

Understanding of Presumptions as a Basis of Their Effective Application (in Searching of Civil Law Features)

B. A. Bulaevskiy

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: bboulaevski@rambler.ru

The problem of inefficient application of presumptions in legal protection of participants of legal relations interests correlates to absence of unique model of determination of presumptions in doctrine and law-enforcement practice. The authors approach to determination of presumptions is analyzed in the article. It serves as a basis for valuation of possibility of branch features of presumptions implementation constitution.

Keywords: presumptions, vague, relations nature, branch features, protection of interests.

DOI: 10.12737/3461

Improvement of Criminal Policy in the Field of Counteraction against Corruption in the Russian Federation

M. F. Musaelyan

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: moretto@yandex.ru

The article deals with the analysis of some topical problems, connected with the improvement of criminal policy in the sphere of counteraction against corruption in the Russian Federation and working up the concept and the features of corrupt crime, improvement of criminal legislation and practice in the mentioned sphere.

Keywords: brives, bribery, corruption, act, crime, responsibility, legislation, criminal policy.

DOI: 10.12737/3462

Anti-corruption Expertise of Documentation on Procurement of Goods, Works and Services for State Needs

V. M. Koryakin

doctor of jurisprudence

Law Institute of Moscow State University of Railway Engineering

9, Obraztsova st., Moscow, 127994, Russia

E-mail: Korjakinmiit@rambler.ru

The article views the problem of possibility and necessity of the organization and carrying out the anti-corruption examination of documentation for purchases of goods, works and services for the state needs is considered in the. The purpose of this examination consists in identification of corruptogenic factors in specified documentation, i.e. such provisions which can create conditions for emergence of the corruption relations, and in development of offers on their elimination. The description of the main corruptogenic factors in the documentation about purchases is given. They are: 1) discrepancy of the initial (maximum) price of purchased goods, works and services to the average market prices for this type or kind of goods, works and services; 2) the unreal time period provided by competitive documentation on delivery of goods, performance of work, rendering of services in the state contract; 3) overestimated requirements to participants of placement of the order, imposed for participation in competitive procedure; 4) excessive specification of the nomenclature of bought goods, works and services, requirements to the content of the performed works, provided services; 5) legal-linguistic uncertainty — the use in documentation about purchase of not settled, ambiguous terms and categories of estimated character. In the article the general methodological approaches to formation of a technique of anti-corruption examination of purchase documentation are formulated, ways of identification of all the designated corruptogenic factors are described. The following conclusions are drawn on complex nature of the anti-corruption examination: a) every document is exposed to the analysis in its interrelation with other documents which are a part of purchase documentation set; b) verification of tender documents should be focused not on some separate corruptogenic factor, but on their aggregate as they form close interconnection; c) the intended result of the introduction of anticorruption examination of purchase documentation can be reached only if it is applied together with other means, forms and methods of anti-corruption activity. It is proved that the timely identification of corruptogenic factors and their elimination from competitive documentation is an important prophylactic way of the corruption prevention in the sphere of government procurements.

Keywords: government procurements, purchase documentation, corruption counteraction, anticorruption examination.

DOI: 10.12737/3463

Legal Nature of Lawsuit Challenging Registered Title to Real Property

T. P. Podshivalov

PhD in law, associate professor

76, Prospekt Lenina, Chelyabinsk, 454080, Russia

E-mail: podshivalovtp@gmail.com

This article analyzes the legal nature of the action contesting the registered rights to real estate. This requirement is often stated in the court proceedings, but hasn’t unique classification. Author on the base of civil law and judicial practice doctrine consideration comes to the conclusion that to contest the registered rights to real estate it’s necessary to apply consequences of the invalidity of legal transaction in the form of return of real estate unit, and if the application of restitution is not possible, take an replevin action (if the plaintiff does not know the subject of the dispute) or an action for recognition of ownership (if the plaintiff has retained ownership of the subject of dispute).

Keywords: real estate, the state registration of property rights, contesting the state registration of rights to real estate, replevin, negatory action, action for recognition of property right, recognition of the legal transaction as invalid, restitution.

DOI: 10.12737/3464

Issues of Formation of Jury Panel

T. A. Vladykina

PhD in law

Blagoveshchensk Branch of the Modern Humanitarian Academy 82/2, Politekhnicheskaya st., Blagoveshchensk, 675000, Russia

E-mail: vladikina_t@mail.ru

One of the fundamental problems of the effectiveness of criminal proceedings with jurors’ participation is the problem of the College of jurors’ formation. It is important to note that the unsolved this problem cannot provide the effectiveness of criminal proceedings with participation of jurors. The objective of this study is to establish the essential normative content of the mechanism of jury’s formation. Besides it deals with define the trends of its development and improvement. It must be admitted, that the application of the dialectical method of objective reality’s scientific cognition let to consider the stages of formation of the jury. Moreover, it was done fully, in correlation with other phenomena of social life and in according to its legal registration. This fact is connected with the distinction between the concepts of «preparing the preliminary list of jurors», «formation of the jury», «the preparatory part of the court trial». The analyzing date of the criminal procedure act recusals of jurors’ norms and its implementation in the judicial practice has allowed to conclude that the personal qualities of the speaker play an important role in the process of realization the citizens’ right of the Russian Federation to participate in the administration of justice. It is important to keep in mind that consideration these qualities could help to overcome a discussion about the correlation of rights, obligations and civil juror’s duties. The author used various methods of analysis to express and argue a number of his own positions, which reveal the «internal» technology of the court’s activities and of the parties to criminal proceedings for the resolution such a point as the allotment of jurors. The author worked on the basis of systematization of special literature in such a question as grounds and procedure of motivated and unmotivated branches of the jury’s applications. Moreover, he emphasized a significant contribution in the resolution of this question by the Supreme Court of the Russian Federation.

Keywords: introductory word of the presiding officer, interview with candidates for the jury, motivated and unmotivated taps potential jurors, protocol of the court session, the College of jurors, replacement of the jury.

DOI: 10.12737/3465

Works Councils in Russia: Balance of Economic and Social Rights

N. L. Lyutov

PhD in law, associate professor

Kutafin Moscow State Law University

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

E-mail: nlioutov@mail.ru

The Labour Code of the Russian Federation was amended in 2013 in a way that a new body of workers’ representation — works councils — can be established. These amendments don’t add any new rights or obligations neither to employers nor to employees. They are made with purely political purposes and only imitate the creation of the analog of the well-known German system of works councils. The author comes to conclusion that currently existing rights in informing and “taking into account” the workers’ representative body opinion, contained in the Russian Labour Code, are not sufficient for existence of the real industrial democracy. The article is aimed at answering the question, whether an implementation of functioning works councils may be beneficial to the adequate balancing of social rights of workers and economic rights of the employers. Although the full transposition of the German works councils system seems to be impossible, some of its positive features may be effectively adopted in the Russian law. For example, the employer’s obligation to consult workers shouldn’t be dependent on the existence of the workers’ representative bodies. Besides, a range of issues that are subject to the mandatory informing of workers by the employer must be significantly broadened. The procedure of consultations must include the real negotiations between the employer and employees on the basis of good faith principle.

Keywords: social rights, economic rights, industrial democracy, works councils, labour law.

DOI: 10.12737/3466

Constitutional Principles and Interaction of International and Domestic Law

B. I. Osminin

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: mp3@izak.ru

The article highlights the different approaches of states in implementation of international law in their municipal realm. As a general rule, international law leaves states free to implement their international obligations in a way they see fit. A distinction is made between customary international law and treaty rules of international law in the practice of states. There exists a general duty for states to bring national law into conformity with their international obligations or to fulfil these obligations in another ways. In this regard all that international law provides is that states cannot invoke the provisions of their internal law as a justification for not complying with their international obligations. There is no international regulation as to how national systems are to give effect to international law rules. As a consequence each state decides on its own, how to make international law binding and what status and rank in the hierarchy of municipal sources of law assign to it. A survey of national systems shows a complete lack of uniformity. The article analyses provisions of Article 15(4) of the 1993 Russian Constitution which provides that “generally recognized principles and norms of international law and international treaties of the Russian Federation shall be an integral part of its legal system. If other rules have been established by an international treaty of the Russian Federation than provided for by a law, the rules of the international treaty shall apply”.

Keywords: generally recognized principles and norms of international law, customary international law, international treaties, automatic incorporation, substantive incorporation, self-executing treaties, hierarchy of norms.

DOI: 10.12737/3467

The Concept of “Just War” in Contemporary International Law

K. L. Sazonova

PhD in law, PhD in politics

The Russian Presidential Academy of National Economy and Public Administration

82, Prospect Vernadskogo, Moscow, 119571, Russia

E-mail: kira_sazonova@mail.ru

The aims and goals of war have drastically changed during the recent decades. The prohibition of the use of force fixed in the Charter of the United Nations became a real challenge to many states. Nevertheless, we observe regular use of force in international relations. Though “classic” interstate wars became rather rare, the states continue to solve their political problems by exploiting the armed forces. In these circumstances it is problematic to explain the use of force from the legal point. That is why we talk so much about “preventive self-defence”, “humanitarian intervention”, “the responsibility to protect” and some other controversial concepts. One of the most disputable among them is a “just war” concept, which has practically not been analyzed in our domestic doctrine. However, the western school of international law is actively implementing precisely the legal dimension of the “just war” concept. Of course, the concept itself is extremely political, but the consequences of its practical implementation may have a great impact on contemporary international law, as it tries to legitimize the use of force in circumvention of the Charter of the United Nations. Because of the huge importance of the question, the analysis of the concept seems extremely actual.

Keywords: international law, “just war”, use of force, criteria, legal aspects.

DOI: 10.12737/3468

History of Development of Legislation on Reclamation of Lands in Russia

E. S. Pysh’еva

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

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

E-mail: Alena-pes@mail.ru

The article highlights the milestones of formation of the Russian legislation in the field of land reclamation. It gives the author’s periodization of the development of reclamation legislation of postrevolutionary Russia, with allocation of her stages. Brief characteristics of each stage is illustrated with the most important legislative acts in the field of public relations. The author uses historical, abstract-logical, formal-legal and comparative-legal methods of scientific knowledge. The article notes that the main achievement of the post-revolutionary legislation is that land reclamation came to be seen not only in the regulation of land use (mainly agricultural land), but also within the legal institution of their protection. Special attention in the article is paid to the adoption of the Federal Law “On Land Reclamation” and its effect. This law laid the legal foundation for the development of the modern reclamation legislation. An analysis of legal acts and scientific literature was allowed to make a conclusion, that reclamation law in Russia for a long period of time was mostly fragmented. However, with the publication of a special Federal Law “On Land Reclamation” this fragmentation of the rules was overcome, but not completely. In addition, since 70s of XX century legal regulation of land reclamation was provided gradually by several branches of legislation (land and water).

Keywords: development of legislation, land reclamation, reclamation activities, land reclamation, land protection.

DOI: 10.12737/3469

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