Contents of issue # 4/2015

Efficiency of Understanding of Law in the Modern Legal Science  Pdf 16

N. A. Vlasenko

doctor of legal sciences, professor

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 question of the effectiveness of the methodological foundations of the study the essence of law in modern jurisprudence is raised. It is noted that researchers often neglected ontological and epistemological requirements needed to achieve a fair result. The praxeological criterion is also not considered. As the result there is a weak argumentation, unconvincing findings and the increasing number of theories, their hybrids. The author believes that one of the criterion of efficiency is using the knowledge of the categories of uncertainty and certainty, the properties of which include tangible and intangible nature. Universality and dialectical unity of these categories is confirmed by their prevalence in the social fabric, including the law. Moreover, the universality of the categories of certainty and uncertainty is limitless and includes not only matter, but also knowledge. It is concluded that these categories are an important cognitive tool. From this perspective natural law theory, integrative theory, communicative theory are analyzed. From the perspective of uncertainty and certainty categories it is analyzed classical and modern schools of law. The author talks about legal positivism, natural law school, integrative and libertarian and communicative understanding of the essence of law, offers evaluate the productivity of theories of law by means of categories of certainty and uncertainty.

Keywords: understanding of law, essence of law, principles of scientific knowledge, certainty, uncertainty, integrative legal thinking, natural law school, legal positivism, libertarian understanding of law, communicative theory of law, materialistic theory of law.

DOI: 10.12737/10444

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Legal Monitoring of Transnational Acts  Pdf 16

A. V. Pavlushkin, S. B. Nanba

A. V. Pavlushkin, 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: monitor@izak.ru

 

S. B. Nanba, 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: const@izak.ru

The article examines modern legal technologies that allow assessing the effectiveness of legal and regulatory framework — legal monitoring and regulatory impact assessment. The authors note that the activities on the evaluation of the regulatory impact of laws and regulations and their projects are seen as part of legal monitoring, as well as anti-corruption expertise of laws and regulations and their projects. It is noted that during the implementation of the regulatory impact assessment it is necessary to monitor interstate (transnational) acts, which were assessed. In this case, legal monitoring allows evaluating the conformity between the effects of regulation and its goals, set forth at the adoption of the legal instructions, as well as the quality of the regulatory impact assessment procedures performed at the stage of the development and adoption of regulatory legal acts. The authors offer suggestions and recommendations to optimize the mechanism of legal monitoring of transnational acts.

Keywords: legal monitoring, mechanism of legal monitoring, transnational acts, regulatory impact assessment, economic integration.

DOI: 10.12737/10296

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The Right of Private Property: Constitutional Evolution  Pdf 16

V. E. Chirkin

doctor of legal sciences, professor

The Institute of State and Law of the Russian Academy of Sciences

10, Znamenka st., Moscow, 119019, Russia

E-mail: vechirkin@yandex.ru

Attitude to private property in the mentality of nations and its constitutional regulation at the present day has changed significantly. Nowadays, constitutions do not contain former definitions of private property as sacred and inviolable (although the French Declaration of the rights of man and of the citizen of 1789, in Article 17 of which it is set forth, is a part of the non-consolidated Constitution of France). In the constitutional law there appeared new approaches to the regulation of the private property institution, the desire to its certain socialization; the constitutional law refers to economic and social justice, to the social function of private property. Certain restrictions on private property are posed, the legitimacy of its nationalization in the interests of the society and the State is recognized. Constitutions provide separate legal regulation to various forms of property. On the other hand, the remaining countries of totalitarian socialism have changed their attitude towards private property. Nowadays in such countries there are no longer rules on the private property elimination. On the contrary, their constitutions contain provisions on the practicability of its existence and use. Such socio-authoritative approach to the regulation of the right of property in the constitutional law considerably differs from the legal regulation of the property institution in the civil law. On the basis of the analysis and synthesis of legal norms, and using historical and comparative methods the article establishes core milestones in the development of constitutional regulation of the private property right, considers the new laws in the right in capitalist countries, in the states of totalitarian socialism and Muslim countries. The article analyzes the peculiarities in the maintenance of the private property institution in the constitutional law, the original idealization of private property in the interests of social strata, who won in bourgeois revolutions of XVII-XVIII, the forms of subsequent restrictions of this right; the article reads about the evolution of the legal status of private property and its legal regulation in the modern context.

Keywords: private property, restrictions on private property, public ownership, state property, social function of private property.

DOI: 10.12737/10446

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Human Rights, Rights of Minorities and Rights of People  Pdf 16

M. B. Napso

doctor of legal sciences

North Caucasian Legal Institute

100, Cosmonavtov st., Cherkessk, 369000, Russia

E-mail: Sev-Kav-sgap@mail.ru

The article reviews the problem of the formation and validation of the peoples’ rights. In the modern context collective rights of ethnic communities are of key importance. The collective rights, together with the human rights make it possible for ethnic communities to preserve themselves as unique ethno-cultural communities and for the state — to regulate the ethno-social relations more effectively. Validation of the collective rights of ethnic communities is one of the most difficult modern law problems. Traditionally it favors individual rights and grants the rights to indigenous peoples and minorities, but not to all peoples. And this approach is still predominant in spite of the gradual advancement of the collective rights. Having investigated different views on the problem, the author offers a sight at the problem of the rights of people in the context of ethno-national interests.

Keywords: human rights, the rights of minorities, the rights of people, ethno-national interests, national identity, uniqueness, self-determination, multiculturalism, international relations.

DOI: 10.12737/10447

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On Admissibility of Use of the Terms “Trade Mark”, “Service Mark” and “Production Mark”  Pdf 16

M. A. Rozhkova

doctor of legal sciences

Kutafin Moscow State Law University

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

E-mail: rozhkova-ma@mail.ru

The analysis of the Russian legal literature allowed the author to make an assumption that the Russian lawyers are too constrained in the use, alongside with the terms “trade mark” and “service mark”, of other terms indicating the varieties of such marks (“trade mark”, “service mark”, “production mark” etc). This is the consequence of the widespread assertion that only terms “trade mark” and “service mark” are appropriate for the use, as opposed to other, “illegitimate” terms. Based on the study of the domestic legislation evolution in the field of regulation of relations concerning trade marks and service marks, the author concludes that the meaning of the terms used in the legislation during various stages of its development was frequently misrepresented, because doctrinal developments (both domestic and foreign) were not employed. In conclusion of the study the author elicits that the refusal from the use of the terms in question, as well as from a detailed classification of the marks applied to goods and services, impoverishes the domestic doctrine, which needs correction.

Keywords: trade mark, service mark.

DOI: 10.12737/10297

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New in Conflict of Laws Regulation of Obligations Arising from Unjust Enrichment  Pdf 16

M. P. Shestakova

PhD in law

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

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

E-mail: maksmar@bk.ru

The article considers modern trends in the development of the Russian conflict of laws regulation with regard to the regulation of legally binding relations arising from unjust enrichment. A brief historical background of this institution in the Russian civil law is provided. Special attention is paid to new amendments and alterations to Section VI “Private International Law” of the Civil Code of the Russian Federation as part of the recent reform of the Russian civil legislation. The author notes a significant expansion of the autonomy of the parties’ will in determining the law to be applied to noncontractual obligations. The author explores the interrelation of common and special rules which regulate the parties’ relationships, criteria and principles of choosing proper sources of legal regulation in respect of specific cases. Alongside with the tendency towards unification of the legal regulation of obligations involving parties belonging to different legal systems, the author notes universalization of approaches to their regulation — extension of a number of principles which were previously applied only to contractual obligations, to non-contractual obligations.

Keywords: conflict of laws regulation, autonomy of the parties’ will, unjust enrichment, unification of law.

DOI: 10.12737/10298

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The Impact of Judicial Practice on the Improvement of Legislation on Disciplinary Responsibility  Pdf 16

L. A. Lomakina

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: labour@izak.ru

The article reviews the issues of interrelation between judicial practice and law-making process. This article aims to show the impact of the explanations of the Supreme Court of the Russian Federation on the law-making process which served the basis for amending the RF Labour code, and also the impact of the explanations which should be implemented through their legislative consolidation on a priority basis. The analysis of the judicial practice has shown that clarifications of the highest judicial body also promote the uniform application of the law. The legal literature reviews judicial practice as a substantial factor of legislation perfection in general and draws the conclusion about the impact of judicial practice on the improvement of the legislation on disciplinary responsibility. Further improvement of the labor legislation requires a closer connection between legislative and law enforcement authorities.

Keywords: judicial practice, the impact of judicial practice on the legislative process, improvement of the legislation on disciplinary responsibility.

DOI: 10.12737/10301

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The Legal Nature of a Secondment Contract  Pdf 16

O. V. Chesalina

PhD in law, associate professor, LL.M. (LMU Munich)

The Centre for Labour Relations and Labour Law of Ludwig Maximillian University of Munich

68, Destouches st., Munich, 80796, Germany

E-mail: ol15ga@yandex.ru

The article examines the legal nature of a secondment contract. The investigation of this issue is of high theoretical and practical importance. From the theoretical point of view it is important to understand the place of such contract in the system of the contract law. From the practical point of view it is necessary in order to resolve the issue of the applicable law and the interpretation of such contract. To determine the legal nature of a secondment contract, the article investigates the issue whether this type of contract can be considered as a «mixed contract». Further the article investigates the issue whether a secondment contract is a paid service contract or a separate type of contract. While investigating this issue, a comparative-legal research method was used. In the research process the author reviews legislative definitions of the abovementioned contracts and terms, used in legislation, as well as law-enforcement and judicial practice related to this issue. Besides, the author analyses the subject matter of the secondment contract. As a result of the undertaken study, the author concludes that a secondment contract is a comprehensive contract regulated by the Russian legislation. This contract is a new type of contract.

Keywords: legal nature, secondment contract, mixed contract, paid service contract, independent type of a contract, subject matter of the contract, service, delegation of the employer’s powers, labor conrtact.

DOI: 10.12737/10449

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Criminal Policy in the Field of Taxation  Pdf 16

B. A. Nazarenko

PhD in law

Financial University under the Government of the Russian Federation

49, Leningradskiy prospekt, Moscow, 125993, Russia

E-mail: b-nazarenko@yandex.ru

The article uses statistical data about the number of detected tax crimes, the indemnification amounts based on the results of investigation of criminal cases initiated on tax and fees legislation violations and which contain elements of crimes, as well as analyzes the current legal mechanism for combating tax crimes and identifying its shortcomings. On the basis of the conducted analysis the author suggests measures to improve the criminal policy in the sphere of taxation, the implementation of which will ensure effective combating tax evasion and, thereby, increasing of the budget incomes in the budgetary system of the Russian Federation. The author focuses on the most problematic issues, among which we could highlight: factual impossibility of identifying tax crimes at the moment of their committing by tax control methods; absence of special law enforcement institutions which would fight tax crimes in the sphere of taxation, hindering the performance of operative and investigative actions on the basis of the arbitration court determination on the satisfaction of the plaintiff’s (taxpayer’s) petition on the suspension of the tax authority’s decision on tax prosecution, etc.

Keywords: tax crimes, criminal policy in the sphere of taxation, criminal corporate liability, tax and duties evasion, protection of the state’s financial interests.

DOI: 10.12737/10451

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International Legal, Constitutional and Criminal Legal Preconditions of the Publicity Principle in Criminal Proceedings  Pdf 16

S. S. Bezrukov

PhD in law, associate professor

National Research Institute of the Ministry of Interior of the Russian Federation

25, Povarskaya st., G-69 GSP-5, Moscow, 123995, Russia

E-mail: bezrukovsergeyperm@rambler.ru

The draftspersons of the Criminal Procedure Code of the Russian Federation never included publicity into the system of criminal proceedings’ principles, having considered previous ideological guidelines, which positioned the proceedings in criminal cases as a means of combating crime, as inappropriate. At the same time the task of uncovering of crimes also disappeared from the criminal procedure legislation. As such, the overwhelming majority of the norms, requiring competent authorities to respond to each fact of the discovery of indicia of crime and to institute criminal proceedings against persons guilty of criminal acts, remained virtually unchanged. The overrepresentation in the modern Russian criminal trial of publicity principles does not cause any doubts, as well as the absence of ideological underpinning in the task of crime solving. Furthermore, in the author’s point of view, the analysis of the dictates of the international law, the Constitution and the Criminal Code of the Russian Federation clearly shows the obvious need to grant publicity the status of a criminal process principle.

Keywords: criminal procedure, criminal procedure principles, a system of criminal procedure principles, the publicity principle in criminal proceedings.

DOI: 10.12737/10307

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Powers of the Court of Cassation in Civil Proceedings  Pdf 16

D. I. Kovtkov

The Ministry of Defence of the Russian Federation

19, Znamenka st., Moscow, 119160, Russia

E-mail: gleit@mail.ru

The article investigates the order of exercising of powers of the court of cassation set forth in paragraphs 4 and 5 of Part 1 of Article 390 of the Civil Procedural Code of the Russian Federation when checking enforceable judicial acts. The relevance of this article is conditioned by the need to resolve theoretical and practical issues of the exercising of the powers of the courts of cassation, courts of general jurisdiction, which arose after the adoption and entry into force of the Federal law of December 9, 2010 No. 353-FZ “On amendments to the Civil Procedural Code of the Russian Federation”. Based on the analysis of the provisions of paragraph 5 of Part 1 of Article 390 of the RF CPC and the judicial practice, the author comes to the conclusion about the need for its legislative clarification, with a view to single out the powers of the court of cassation on changing appealed acts into a separate provision, as the joint consolidation in one paragraph of the court’s power to recall and change the enforceable court rulings misrepresents the essence of such powers and confuses legal phenomena of different nature.

Keywords: court of general jurisdiction, civil procedure, court of cassation, powers.

DOI: 10.12737/10308

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Legal Information as the Requirement for the Implementation of Modern Russian Legal Policy  Pdf 16

O. Yu. Rybakov

doctor of legal sciences, doctor of philosophy, professor

The Russian Law Academy of the Ministry of Justice of the Russian Federation

2, Azovskaya st., Moscow, 117638, Russia

E-mail: ryb.oleg13@yandex.ru

The author considers the issues of legal information significance as the most important and necessary requirement for the formation and implementation of the modern Russian legal policy; analyzes the problems of the content and classification of legal information; provides own definitions of the modern Russian legal policy taking into account the update of various aspects of its understanding; reveals dependence of legal policy efficiency from the communication space development level; differentiates between information legal policy and communication legal policy; shows that the variety of legal policy forms (law-making, enforcement, doctrinal etc.) makes actual the importance of information that can have legal value, which requires terminological reflection of this phenomenon. The author points out that communication legal policy focuses on the creation of legal basis for the information society formation, management over the technological development of the state’s communicative space, its timely modernization and improvement; determines that information that can be of legal importance, is differentiated according to the forms of the legal policy implementation, and is updated and used with the help of legal tools and methods.

Keywords: legal information, legal policy, information society, information legal policy.

DOI: 10.12737/10311

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Liability for the Migration Legislation Violation: Legal Issues and Ways of their Negotiation  Pdf 16

I. V. Plyugina

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: inna_wp@mail.ru

The article analyzes legal issues related to the liability for the migration laws’ violation. The study of foreign experience shows a general tendency of penalties’ upgrading for the wrongdoings in the migration sphere. Various instruments are used as part of prevention and interdiction of illegal migration; however the measures of criminal and administrative punishments remain basic. The article considers the issues arising as a result of the application of corpus delicti introduced in the Russian Federation in 2013; studies the issues related to the liability for a fake registration of a Russian Federation citizen at the place of residence, fake registration of a foreign citizen or a stateless person at the place of residence.

Keywords: illegal migration, administrative responsibility, criminal responsibility, fake registration, registration.

DOI: 10.12737/10312

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Retroactive Effect of International Treaties  Pdf 16

S. B. Bal’khaeva

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: mp@izak.ru

The author studies the issue of retroactive effect of international treaties. The author identifies and analyzes the following types of retroactivity of international treaties: 1) an international treaty contains explicit retroactive provisions; 2) retroactive effect follows from the interpretation of treaty provisions. The performed analysis indicates that the principle of non-retroactivity is not absolute and there may be exceptions that are permitted only upon the decision of the subjects of international law. Such exceptions can be justified both by the very nature of the international treaty (interpretative agreements, which are intended to ensure interpretation of the earlier concluded treaty) and by human considerations (international treaties in the sphere of legal assistance). Retroactive effect may also be caused by additional or explanatory nature of the treaty itself, for example, when the states seek to avoid interruption in the application of the rules of two successive treaties, etc. Thus, the causes of individual cases of retroactivity of international treaties should be interpreted in each specific case depending on the will and the position of the contracting parties.

Keywords: international law, international treaty, retroactivity of the international treaties, the Vienna Convention on the Law of Treaties.

DOI: 10.12737/10313

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Interpretation of the Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights and the Rule of Law  Pdf 16

N. N. Lipkina

PhD in law

Saratov State Law Academy

1, Volskaya st., Saratov, 410056, Russia

E-mail: eurolaw@sgap.ru

The Rule of law as one of the core principles of the modern international law is the key principle of organization and activity of any international body. The purpose of this article is to consider specific aspects of the Rule of law’s implementation in the practice of the European Court of Human Rights, which are related to the peculiarities in interpretation by the Court of the provisions of the 1950 Convention for the protection of human rights and fundamental freedoms and the Protocols thereto — the application of the «evolutive interpretation» concept and «subsequent practice in the application of the treaty» concept.

Keywords: the Rule of law, the European Court of Human Rights, international treaty interpretation, evolutive interpretation, subsequent practice in the application of an international treaty.

DOI: 10.12737/10452

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2009
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