Contents of issue # 6/2015

Problems and Paths of Development of Investment Legislation of the Russian Federation  Pdf 16

N. G. Doronina, N. G. Semilyutina

N. G. Doronina, 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: office2@izak.ru

 

N. G. Semilyutina, doctor of legal sciences

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

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

E-mail: foreign3@izak.ru

Being a part of the economic legislation, investment legislation includes administrative regulation that deals with the mode of investors’ activities, as well as rules of contractual (civil) law, including laws on lease-purchase contracts, concessionary agreements and production sharing agreements. We can acknowledge that investment legislation is an integrated branch of legislation consisting of rules of private and public law. It embraces practically all branches of the national economy and it is its distinctive feature. Antimonopoly regulation plays a special role in investment regulation. In search of criteria uniting regulatory acts adopted with the aim of legal regulation of investment relations, it is necessary to refer to the Federal Law “On Protection of Competition”. Antimonopoly law is a strategic factor that can unite regulatory acts in the investment sphere into a single system of investment legislation. Transfer to the program planning criteria and interaction between the state and the private sectors, and raising funds from private investors is one the ways to minimize costs on the Programs execution. The following modes, among others, can be used as mode of interaction with private investors: concessionary agreements, project co-financing by commercial banks (credit organizations), placement of public (municipal) bonds, investment projects.

Keywords: investment law, аntimonopoly regulation, program planning principle, private investors.

DOI: 10.12737/11429

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Independent Deputy Mandate: Pro and Contra  Pdf 16

V. A. Cherepanov

doctor of legal sciences, professor

Stavropol State Agrarian University

12, Zootechnicheskiy pereulok, Stavropol, 355017, Russia

E-mail: sigma45@yandex.ru

The article considers some positive features of the independent deputy mandate conception and notes some of its shortcomings. For the purpose of analysis of the legal nature of a deputy mandate, the author considers it necessary to identify three interconnected legal relations where a deputy has different legal statuses and different rights, obligations and responsibilities. In a lasting legal relation with the electorate the deputy acts as their representative, in the legal relation with the party that has nominated him, he is a representative of this party, and in the legal relation with the people of the Russian Federation (their portion) he is a representative of these people (their portion) who should express their will in the adopted decisions as part of the relevant representative body. There are some imperative elements in the lasting electoral legal relations, but in his relations with the people of the Russian Federation (their portion) there prevail some features of the independent mandate. According to the author, all these legal relations are active pattern relations whose active centre is in the deputy’s obligations directly related to the interests of the representees and their relevant right to demand to observe them and bring the deputy to responsibility when these obligations are not performed. These features of a deputy mandate suggest a binding, imperative model of legal regulation at the heart of which there should be legal obligation and subsequent legal responsibility. At the present time, based on the prevailing interpretation of the independent mandate, in order to regulate the deputy’s constitutional-legal status, another permissible, dispositive model of legal regulation is applied, that allows for the deputy to act at his discretion. In this context the article justifies the necessity of the Russian federal legislation improvement by reinforcement of certain elements of a deputy mandate’s mandatory nature, laying down his obligations and responsibility including a recall as a form of pure democracy.

Keywords: imperative mandate, independent mandate, active pattern legal relationship, imperative model of legal regulation, dispositive model of legal regulation, recall of a deputy.

DOI: 10.12737/11545

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On Early Election Calling  Pdf 16

V. V. Viskulova

doctor of legal sciences, associate professor

Amur State University

21, Ignatyevskoe shosse, Blagoveshchensk, 675027, Russia

E-mail: viskulova@mail.ru

Every year the Russian Federation holds thousands of elections — primary, early, occasional, runoffs, etc. This article describes a great number of early election campaigns in Russia, reflects some discrepancies in the statistics, and also reveals some problems of an election process. The author touches upon the following points: 1) proves that early elections are called due to early termination of powers of the elected authorities and officials; 2) demonstrates a variety of the RF constituent entities’ legal approaches to determining of initiators of early election calling; 3) suggests an all-in-one approach to early election calling — by election committees. In her article the author uses statistical technique, comparative juridical and legal modelling methods. As a result the author proposes some amendments to the RF Federal Law “On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum”. The author assumes that it is the election committees that should call for early elections, and not the elected public authorities or local governments.

Keywords: early elections, election committees, early termination of powers.

DOI: 10.12737/11475

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Legal Regulation of Innovation Cycle Stages  Pdf 16

N. M. Kazantsev

doctor of legal sciences, PhD in economics, professor

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

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

E-mail: nm_kazantsev@mail.ru

Simplified understanding and regulation of the innovation cycle of scientific and technical innovations in the Russian legislation under the conditions of science financing, that lags behind the level of science financing in the BRICS countries, and the oligopolistic nature of the Russian economy results in undermining innovations on the part of such non-economic factors as extralegal appropriation of intellectual property, unilateral authority-based strategizing and interference into economy, inflated refinancing rate of the Bank of Russia. To implement the tasks of import substitution the author suggests introducing the practice, justified in the works of Jean Tyrol, 2014 Economics Nobel Laureate, which involves concluding agreements between a regulatory public authority and oligopolists, who target domestic markets, in the sphere of the innovation cycle from knowledge to consumer goods.

Keywords: innovation, scientific and technical innovation, innovation cycle, innovation cycle stages, innovation management, oligopoly, strategy.

DOI: 10.12737/11477

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Corporate Legal Relationship: Essence and Specific Features of Regulation  Pdf 16

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

Theoretical issues of the concept, classification, types, structure and system of subjective corporate rights have not been studied properly. As a result, scientists try to interpret subjective corporate rights within the framework of the law of property, and the law of obligation; to use analogy methods in their judgments that testifie to an attempt of applying existing scientific concepts to describe and reveal intrinsic specificity of legal relationship, whose legal regulation is just at the initial formation stage. The concepts of civil legal relationship, subjective civil law, and corporation that are currently far from being uniform in their interpretation by the juridical community should become fundamental and initial concepts in determining the independence of corporate legal relationship and subjective rights. Taking into account the definitions of the law in force, one cannot see solid grounds for defining common features, concept and system of corporate legal relationship. This demonstrates imperfection and defects in the Russian civil legislation with regard to regulation of corporate legal relationship. But without comprehensive detailed regulation of this relationship it is impossible to create a fully functional legal regulation system neither at present nor in future.

Keywords: corporate legal relationship, subjective corporate rights and obligations, legal entity.

DOI: 10.12737/11478

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Differentiation of Legal Regulation of Labor Relations as Typical Tendencies of Labor Law Development  Pdf 16

A. F. Nurtdinova, L. A. Chikanova

A. F. Nurtdinova, doctor of legal sciences

The Constitutional Court of the Russian Federation

1, Senatskaya square, Saint Petersburg, 190000, Russia

E-mail: labour@izak.ru

 

L. A. Chikanova, doctor of legal sciences

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 articles dwells upon the issue of differentiation of legal regulation of labor relations which is seen as a legal instrument, which allows taking into account the specificity of social relations that are formed under the conditions of or among the labor law subjects and that have specific features. The differentiation is a polar opposite to the legal regulation unity which embodies the existence of a unified legal status of employees, their equality, and, ultimately, the unity of the branch of law, which is unthinkable without stability and certainty of legal standing of principal participants of relevant legal relations. Further differentiation of legal regulation of labor relations is one of the most typical tendencies in labor law development. The article notes that the grounds for differentiation, out of necessity to coordinate with the principle of equality, and hence abidance by discrimination prohibition, must be entitative, justified and directly linked with an object of legal regulation and satisfy the principles of clarity and unambiguousness. Based on the abovementioned criteria, the authors analyze such grounds of differentiation of legal regulation of labor relations as peculiarities of labor process, its organization, and the type and nature of labor activity, the field of economic activity which uses labor, and the working and environmental employment terms. The articles notes that the grounds for differentiation, chosen by a legislator, do not always correspond to the mentioned criteria. They are often arbitrary and do not reflect their objective need or do not correspond to the reality. For example, inclusion into the Labor Code of peculiarities of legal regulation of labor relations for those categories of workers, in relation to whom these peculiarities have already been established by special laws. In fact these rules do not convey any regulatory meaning and therefore complicate the legislation and do not contribute to clarity and transparency of those workers’ legal status. The analysis shows that the employer’s legal form and the peculiarities of the employees’ professional activities have recently become the mostly widespread grounds for differentiation. The authors draw the conclusion that differentiation cannot be considered valid if it was derived on the basis of one criterion (the employer’s legal form) without taking into account other significant criteria. While the admissibility (and sometimes the necessity) of setting the specificity of legal regulation based on the peculiarities of labor (professional) activity does not raise doubts. The only issue that could be raised is the issue of existence (or absence) of such peculiarities and of the advisability of specific manifestations of the differentiation, i.e. special rules adopted by a legislator.

Keywords: differentiation, unity of legal regulation, grounds of differentiation, labor relations, peculiarities of legal regulation, specific categories of employees, equal opportunities, justification of differentiation.

DOI: 10.12737/11430

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Legal Methodology for Evaluating Educational Institutions in the Russian Federation  Pdf 16

O. Yu. Eremina

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

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

E-mail: eremina_ou@mail.ru

The nationwide trend of improving public authorities’ efficiency has put the education system under new performance conditions — commitment of educational institutions to improve their efficiency. The article describes methodological aspects of evaluating educational organizations, identifies components of evaluation activities’ logical structure. The main emphasis is on legal mediation of educational organizations’ appraisal. The author examines legal basis of educational organizations’ appraisal, highlights types of documents on issues relating to quality appraisal and performance evaluation of educational organizations. The author analyzes both the federal regulatory level, and regional, municipal, and local levels of the regulatory impact. The author notes key legal problems of the emerging system of educational institutions’ performance evaluation at various levels of public authority. The author considers some negative consequences of the introduction of the system of educational organizations’ performance appraisal.

Keywords: education, evaluation (appraisal), quality, performance, education authorities, performance indicators.

DOI: 10.12737/11479

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Corruptogenic Factors in Ecological Legislation  Pdf 16

N. I. Khludeneva

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: khludeneva@mail.ru

The article analyzes corruption risks of the ecological legislation, investigates shortcomings of the ecological legislation that directly affect the completeness and quality of the ecological legal regulation and contribute towards the intensification of corruption manifestations in the sphere of environmental protection. The author notes that the current Russian environmental legislation is characterized by the presence of a significant number of legal uncertainties, reference and blanket rules, norms that establish unreasonably wide margin of appreciation for subjects of law enforcement. The author concludes that not all shortcomings of the ecological legislation are the root causes contributing to corrupt practices.

Keywords: corruption risks, environmental (ecological) legislation, corruptogenic defects of legal regulation of the environment.

DOI: 10.12737/11438

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Expert’s Opinion Evaluation and Use of Forensic Examination Results in Criminal Cases Related to Penal Institutions  Pdf 16

E. V. Nazarkin

PhD in law, associate professor

The Academy of Law and Management of the Federal Penitentiary Service of Russia

1, Sennaya st., Ryazan, 390000, Russia

E-mail: evnr2012@yandex.ru

The article reveals general criteria for evaluating expert’s opinion, in particular, expert’s participation at the end of the preliminary investigation (inquiry) and during drafting of the indictment (crime bill), interaction between the investigator and the expert in identification and remedy of causes and conditions that facilitated the commission of the crime. The article considers two different methods of assessing expert’s opinion: the internal, which is confined to logical analysis of the opinion, understanding consistency of the scientific and technical means and methods of the research, applied by the expert, the nature of the identified features and their role in justification of the drawn conclusions; and the external, that assesses the opinion in the legal, procedural respect, and observance of the rights of the participants in a criminal case, as well as in relation to all criminal case files. Expert’s participation at the end of the preliminary investigation (inquiry) and during drafting of the indictment (crime bill) comes down to advice about the performed examinations, determination of the place and importance of the expert’s opinion in the totality of the available evidence collected for the criminal case. The interaction between the investigator and the expert in remedy of causes and conditions that facilitated the commission of the crime in penitentiary system of Russia is regarded as a daily routine in penal crimes’ investigation and a remedial measure with the purpose of prevention such crimes in future. As part of the study the author analyzed 60 files of criminal investigation on penalty crimes in various regions of Russia. The author highlights peculiarities and suggests conclusions after considering case studies on the issue. The research methodology involves the use of such techniques as analysis, synthesis, induction, interviewing and others.

Keywords: forensic examination, internal and external evaluation, completion of a preliminary investigation (inquiry).

DOI: 10.12737/11439

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Concept of Information Sufficiency as the Basis for Inspections on Compliance with the Established Anticorruption Requirements  Pdf 16

L. K. Tereshchenko, A. M. Tsirin, 

L. K. Tereshchenko, 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: adm@izak.ru

 

A. M. Tsirin, 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: antikor@izak.ru

The article is devoted to the concept of information sufficiency as the basis for carrying out inspections on compliance with the established anticorruption requirements. The authors note that the legislator, establishing the information sufficiency requirement, doesn’t envisage other requirements to it, in particular, its completeness and reliability. The authors believe that such approach allows ensuring observance of interests of both the person being verified and the society in general. The requirement of information sufficiency allows excluding unreasonable ungrounded inspections. On the other hand, completeness and reliability at the stage preceding control measures cannot be ensured. Only control measures and their results are able to determine the reliability (or unreliability) of the available information, which will be reflected in the inspection results. In their article the authors criticize the practice of using in the current legislation of categories with the uncertain contents that permit a law enforcement official to vary his administrative discretion; also the authors offer suggestions for improvement of the existing regulations.

Keywords: legislation, category, inspection, information, criteria, decision.

DOI: 10.12737/11440

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Difference between Monetary Responsibilities and Monetary Obligations: Financial and Legal Aspect of Research  Pdf 16

N. V. Omelekhina

PhD in law, associate professor

Novosibirsk State University

2, Pirogova st., Novosibirsk, 630090, Russia

E-mail: n.onv@yandex.ru

Analyzing one of the key forms of financial and legal liability — monetary responsibilities, the author explores the relationship between such legal categories as responsibility and obligation. For these purposes, the author makes a comparative assessment of the essential characteristics of monetary responsibilities established by the financial and legal norms and monetary obligations. On closer inspection, it becomes obvious that, primarily, civil law duties, being the most doctrinally and legislatively developed legal institution, should become the object of comparison. The article reveals differences between monetary responsibilities and monetary obligations on the grounds of their origin, subject matter, the nature of arising relationship and the date of termination. Among the key features that distinguish monetary responsibilities from monetary obligations there are extra contractual nature of their occurrence, mandatory participation of a public legal institute (in behalf of whom the execution is exercised and who is vested with the power in relation to the party liable), the impossibility of replacing the members, the public purpose of occurrence, the imperative nature of the definition of the duty and the date of its termination as of the moment of proper execution of the will by the party liable aimed at the termination of the duty.

Keywords: duty (responsibility), obligation, monetary responsibility, monetary obligation, financial law, positive enforcement.

DOI: 10.12737/11441

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Problems of Licensing Procedures Implementation in Communication Sphere  Pdf 16

E. А. Savchenko

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

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

E-mail: elen_savchenko@bk.ru

The article considers problems of licensing procedures implementation in the communication sphere. The author analyzes characteristic features of legal regulation improvement in implementation of licensing in the sphere of telecommunication services as part of a uniform industrial-engineering complex. The author reveals and justifies the necessity of modifying the Federal Law “On Communication” in regard to legal regulation improvement in provision of state services on granting licenses for telecommunication service rendering and approval documents for the use of radio frequencies, in regard to synchronization of standard legal regulation mechanisms in communication sector with the customs legislation norms within the framework of the Eurasian economic community, and modifying the Federal Law “On Licensing of Certain Types of Activity” with the purpose of unifying licensing procedures for the types of activity carried out with the use of information technology. The author focuses on the necessity of different licenses’ unification according to similar characteristics. The author justifies the necessity to envisage the possibility of licensing rights transfer to a reorganized legal body under the condition of continuity of the rendered services’ nature. On the basis of the conducted research the author suggests a stage-by-stage “inclusion” into the national legal system of the European law norms as the basis for overcoming the abovementioned negative tendencies.

Keywords: licensing, telecommunication and information services, user, authorization procedure, communication, directive.

DOI: 10.12737/11442

 

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Problems of ECHR Decisions Implementation into Domestic Law  Pdf 16

T. E. Shubert

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: Barsic2@yandex.ru

The article examines the ECHR legal nature and types of its decisions, analyzes the activities of the Government of the Russian Federation and the RF Ministry of Justice on the implementation of the European Court of Human Rights’ judgments. The author notes the role of the Plenum of the Supreme Court of the Russian Federation in ensuring uniform application of the Convention and Protocols thereto, ratified by the Russian Federation, by the courts of general jurisdiction. The author analyzes reasons for slow and incomplete implementation of the ECHR decisions, and comes up with the measures for their implementation. The article discusses peculiarities of the execution of the ECHR judgments in the Russian Federation: mechanistic execution of the decisions, lack of a systematic approach to the legislation analysis, absence of identification of causes for non-compliance of the regulations with the Convention on Rights of Man and Citizen, lack of coordination between bodies executing the ECHR decisions, inadequate budgetary procedures and lack of funds. The author proposes to analyze structural and general deficiencies in the national law and practice with regard to the ECHR decisions; provides recommendations to improve the mechanism for the judicial decisions’ implementation; determines lines of development for legal regulation of relations in the field of ECHR judgments’ implementation in the Russian legislation.

Keywords: implementation, Convention on Human Rights, European Court of Human Rights, a legal precedent, legislation.

DOI: 10.12737/11443

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International and Legal Cooperation Development on Labour Migration Issues: from EurAsEC to Eurasian Economic Union  Pdf 16

R. Sh. Davletgildeev, O. V. Sycheva

R. Sh. Davletgildeev, PhD in law

Kazan (Volga Region) Federal University

18, Kremlevskaya st., Kazan, 420008, Russia

E-mail: roustem.davletguildeev@kpfu.ru

 

O. V. Sycheva

The Federal Tax Service of the Republic of Tatarstan

13a, Teatralnaya st., Kazan, 420111, Russia

E-mail: olga-sycheva1@mail.ru

This article is devoted to the analysis of international and legal cooperation in the area of labor migration in the Eurasian Economic Community and the Eurasian Economic Union. The authors study background for the creation and history of the Common Economic Space and the Customs Union, one of the main purposes of which is the creation and operation of a common labour market. The authors perform the analysis taking into account similarities and differences of legal regulation of the issue under consideration in the European Union, and make comparison. The authors point out to the continuity problems of labour migration legal regulation within the framework of the Eurasian Economic Union, including harmonization of legislation on labour migration of the Union’s member countries. The authors study the institutional system of the Eurasian Economic Community (Eurasian Economic Union) and powers of institutions in the field of labour migration, indicate the presence of special migration authorities in the EurAsEC and in the Eurasian Economic Union. Provisions of the Treaty on the Eurasian Economic Union devoted to labour migration are analyzed. The authors note the probability that the law harmonization function will be implemented in the Eurasian Economic Union not through model laws but through international treaties and decisions of the Union’s institutions. The authors assume that the Eurasian Economic Union will work out the desired integration model, based not only on political and economic interests, but which will take into account civilizational peculiarities of the Eurasian region.

Keywords: labor migration, the Eurasian Economic Community, the Eurasian Economic Union, the Common Economic Space, regional integration, harmonization of legislation, migrant workers.

DOI: 10.12737/11444

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Contents of issues:

2018
2017
2016
2015
2014
2013
2012
2011
2010
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997