Contents of issue # 10/2016

Integrative Misunderstanding Law  Pdf 16

A. F. CHERDANTSEV

doctor of legal sciences, honored scientist of the Russian Federation
Ural State Law University
3, Pecherskaya st., Ekaterinburg, Russia, 620000
E-mail: tgp@usla.ru

The article proves negative consequences of the refusal of the long-standing characteristics in modern legal consciousness. Analyzes the current state of the Russian legal consciousness. Integrative legal consciousness is criticized. The author substantiates the falseness of attributing the principles of law to the forms of law. This is a typical example of a contravention of the logical law of identity, which has led to the substitution of the term “legal system” to the term “source (form) of law”. According to adherents of integration the complexity of law corresponds to the methodology, which is characterized by multilateralism, omnidirectional (different terminology) approach to the study of law. The author refers to a set of established research methods in the legal field: logical-linguistic (or formal logical), system-structural, concretesociological, axiological, information and cybernetic, mathematics (statistics), psychological, historical and others. and, of course, to the dialectical method with principles of the cognition, which to some extent are specified in the above methods. It is stated that an integrative approach to the law is contrary to the objective, scientific approach. Analyzes errors in the views of the supporters of the concept of integrative legal consciousness. It was concluded that legal science does not require an integrative approach to the law.

Keywords: legal consciousness, the Russian legal consciousness, integrative approach to law, scientific approach to the law, multilateral approach to the law.

DOI: 10.12737/21518

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Legal Criteria of the Welfare State: New Approaches  Pdf 16

N. V. PUTILO

candidate of legal sciences
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: social@izak.ru

The welfare state and its constant development accompanied by the appearance of new characteristics or changing old require to update scientific approaches to this phenomenon. The author researches existing approaches to the allocation of signs of the Welfare state. The article proposes a new system of formal legal criteria of the welfare state, which allows to determine the social orientation of the state excluding quantitative economic and social indicators. The author includes following criteria: 1) implementation of the principle of the social state; 2) reflected in the constitution of the list of social rights; 3) characteristics of the constitutional status of social rights; 4) enabling of the application of international law in the national legal system; 5) legislative consolidation of state duties in the social sphere and the mechanism of their implementation; 6) constitutional recognition of legal guarantees for the implementation of social rights (standards, specifying the general requirements for the economic structure of the state, taxation, redistribution processes); 7) legislative concretization of the mechanism of realization of social rights; 8) constitutional recognition of the special institutions, typical of the welfare state; 9) the presence of specific public authorities and other structural elements; 10) consolidation of the rule of law; 11) the status of social legislation. The proposed system of criteria based on international indicators of quality of life, takes into account the historical experience of the formation of the social state.

Keywords: the welfare state, indicators, functions, attributes, criteria, features, objects.

DOI: 10.12737/21519

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Actual Problems of the Enjoyment of the Right to Self-determination in the Modern Conditions  Pdf 16

M. B. NAPSO

doctor of legal sciences
North Caucasian Legal Institute
100, Kosmonavtov st., Cherkessk, Russia, 369000
E-mail: napso.maryana@mail.ru

The article covers the problem of the actualization of the right to self-determination for the current conditions, when various forms of ethnic self-assertion play significant role, and therefore, the collective rights of ethnic communities. The complexity of the processes of national and political development requires, on the one hand, strict adherence to international law, on the other hand, in-depth study of the concrete historical situation and consensus-building between all concerned parties. Therefore, it is rightful to consider the question on the interpretation of the right to self-determination for the specific conditions and the development of the mechanisms for its implementation by concerned parties, taking into account the features of these conditions and the interests of the parties. This will ensure a departure from the traditional forms of enjoyment of the right to self-determination, which adequately reflect the characteristics of a particular socio-political situation. On that basis, the author considers that it is productive to examine the problem of self-determination as a process of reconciling the interests, having a substantive and procedural components.

Keywords: ethnic self-assertion, the right to self-determination, law of nations, political and legal status of the nations, identity, geo-cultural space, national interests, international relations.

DOI: 10.12737/21520

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Contract Negotiations (Concept, Legal Regulation, Rules)  Pdf 16

M. N. MALEINA

doctor of legal sciences, honored lawyer of the Russian Federation
Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: aspirantstudent@yandex.ru

The article describes the two orders of the contract negotiations: non-contractual procedure based on the provisions of Civil Code of the Russian Federation, and the contractual order with the help of an agreement on the procedure for negotiating. Above agreement can be of three types: the agreement on the procedure for negotiating, the agreement on the content of the future treaty, the agreement of the mixed type. Regardless of the order of negotiation grounds for damages of losses are unfair negotiations, including disclosure of confidential information transmitted by the other party or use confidential information improperly for its own purposes, as well as the unfair termination of negotiations. The amount of damages includes the costs incurred by the other party in connection with the contract negotiations (rent for the meeting room, translation fees, the preparation of the main contract of the project), as well as for the loss of opportunity to conclude a contract with a third face.

Keywords: contract negotiations, the principle of good practice, confidential information, precontractual agreement, an agreement on the procedure for negotiation, pre-contractual liability, damages.

DOI: 10.12737/21521

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Application of Security Deposits under a Different Civil Legal Relationships: Theoretical and Practical Aspects  Pdf 16

K. D. GASNIKOV

candidate of legal sciences
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: civil@izak.ru

The author analyzes “a security deposit” as a new named way to enforce the obligations established by the civil legislation of the Russian Federation. Studying of the latest amendments of civil law in the sphere of obligations will determine the actual directions of the further development of contractual security relations. The purpose of the article — based on the study of the doctrine of the Russian civil law, the Concept of development of Russian civil legislation, legislation and court practice to determine the legal nature of the security deposit, its characteristics and differences from other ways of enforcement of the money obligations — forfeit and deposit. Particular attention is paid to the problems of enforcement of security payments as the named ways to enforce the obligations under the preliminary agreements, and also revealed the inconsistency of court practice in this area.

Keywords: contractual relations, way to enforce the obligations, security deposit, penalty, key money, preliminary agreement.

DOI: 10.12737/21522

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The Doctrine of Private International Law: Heinrich von Cocceji  Pdf 16

I. V. GETMAN-PAVLOVA

candidate of legal sciences
The National Research University “Higher School of Economics”
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: getmanpav@mail.ru

The target of this article is to evaluate the theory of Private International Law developed by the German scholar Heinrich von Cocceji in 17th century. The contribution of this scholar to development of PIL doctrine has not yet been studied in Russian literature. The article analyses the Cocceji’s thesis, where he examines the question of conflicts of different national laws and of an applicable law’s determination. To consider these issues, the German scholar uses the methodology of his French and Dutch predecessors — the supporters of the theory of statutes, and thus he argues in line with this theory. The basic difference of Cocceji’s theory from classical theory of statutes is the starting point of his reasoning — he does not attempt to distinguish legal provisions and their scope, and sets the specific connecting factors. This is a very important difference, that explicitly anticipates the approach of the modern legislator to design the choice-of law-rules. In addition, he constructs a separate “action statute”, including not only questions of a form of an act, but also leading to generating of abstract connecting factor for determining the law applicable to the general concept of action. The conclusion of the article is that it is reputed that the main Cocceji’s contribution to the development of the PIL doctrine can be consideration of his assertion that the choice-of lawrules have nature of public law and the basis for solving conflicts of laws is international law — “international consensus of nations”.

Keywords: private international law, the doctrine, the conflict of laws, the theory of statutes, Germany, XVII century, Heinrich von Cocceji, trichotomy of statutes, international legal consensus of nations.

DOI: 10.12737/21523

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Conflict Regulation of Voluntary Representation in Russia  Pdf 16

N. V. VLASOVA

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: natasha.vlasova@rambler.ru

Existence and certainty of conflict of laws rules on the representation provide predictability of legal regulation of these relations that have a foreign element. In this regard researches about issues of national and unified conflict regulation of representation are relevant. The present article is devoted to the questions of conflict regulation of representation in the Russian Federation contained in the article 12171 of the Civil Code of the Russian Federation — the novel of the domestic legislation which is in force since the 1st November 2013. The conflict of laws rules regulating internal (between an agent and a principal) and external relations of representation (between a principal and a third party and between an agent and a third party) are analyzed (on the base inter alia of comparative legal method). The author makes a conclusion about predictability, equation and flexibility of the conflict of laws rules of the Russian law on the representation, which in general comply with the rules of the Hague Convention 1978 on the law applicable to agency, and with the rules of many foreign legal systems. The author proposes the further development of the Russian conflict regulation of relations of representation, particularly: giving the possibility of choosing the law applicable to external relations of representation to an agent and a third party; determination of the moment of time when an agent has his habitual residence or place of business if a principal hasn’t chosen the law applicable to the external relations of representation.

Keywords: voluntary representation, agent, principal, power of attorney, conflict of laws rule, general connecting factor, subsidiary connecting factor, applicable law, party autonomy, choice of law.

DOI: 10.12737/21524

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Seized Property Regulation Issues  Pdf 16

N. A. GOLOVANOVA

candidate of legal sciences
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign1@izak.ru

This article provides some insight into foreign states’ regulation of seized property and weaknesses and opportunities for increasing effectiveness of existing regimes. Asset confiscation through proceeds of crime legislation, as well as assets originated from corruption, has taken on a new lease of life over the past few years. The main object of criminal proceeds confiscation laws is to divestiture the financial gain derived from criminal activity and to relinquish it to the state. The author evaluates the legislation and practice in the framework of regulation of seized property in Europe, USA and Australia, and lays stress on social reuse of propriety. In author’s opinion, Italian experience in transferring confiscated assets to local authorities in favour of the society is especially interesting for Russia. It is noted that besides achieving the common goal to seize illicit assets from criminals to the subsequent payment of compensation to victims of crime, to fight against organized crime, terrorism and economic crimes, it is important to create an economically viable asset recovery system, preserving their value in the interests of the state, society and victims, as well as ensuring accountability, transparency and public confidence in the system of asset recovery.

Keywords: regulation of seized property, seizure, proceeds of crime, corruption, social reuse, social entrepreneurship, reimbursement for victims.

DOI: 10.12737/21525

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Qualifying Errors: Essence, Classification and Causes  Pdf 16

A. Yu. RESHETNIKOV

candidate of legal sciences, associate professor
The Academy of the Prosecutor General’s Office of the Russian Federation
10, Novaya Basmannaya st., Moscow, Russia, 107078
E-mail: criminal-law@mail.ru

The article considers basic theoretical approaches for understanding of an essence of a qualification error in offenses, classification of these errors, causes and ways to correct the qualifying errors. It is underlined that the qualification errors are limited by the framework of criminal law. The subjects of such errors are investigators, prosecutors and judges, and the qualification errors’ reasons are objective (a large number of evaluative concepts, lack of wording clarity of the specific criminal legal norms) and subjective (incomplete investigation circumstances of a crime, wrong assessment of collected evidences, etc.) factors, while the error correction by means of application of prosecutor's supervisory measures or by judicial practice depends directly on the subject and the factors of the qualification error and limited by the Criminal Procedure legislation character. The author concludes that careful consideration of the causes and the conditions for the approval of qualification errors, as well as their correction by the subjects of qualification and applied organizational and legal measures, aimed at eliminating their causes, together are the key to ensure legality in criminal law and rights and freedoms.

Keywords: qualification of offenses, error, application of criminal law, justice.

DOI: 10.12737/21526

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Certain Application Issues of the Article 145 of the Criminal Code of the Russian Federation  Pdf 16

S. A. YURKOV

candidate of legal sciences
Vyatka State University
36, Moskovskaya st., Kirov, Russia, 610000
E-mail: yuramax@inbox.ru

The article considers some issues of application of the Article 145 of the Criminal Code of the Russian Federation. The number of convicts under this article has been exhibited in this work, and it also identifies a number of reasons why this Article, in the author's opinion, has almost never been applied in practice. In particular, the reasons for non-application of the Article 145 of the Criminal Code of the Russian Federation in practice are: unwillingness of pregnant women to protect their rights in criminal process; difficulty in proving unjustified refusal to enter into an employment contract with a pregnant woman; an evaluative character of an indicia — “unreasonable refusal”; differentiation problems of crime components under the Article 145 of the Criminal Code of the Russian Federation and the administrative offences’ components provided for by the Article 5.27 of the Code of Administrative Offences of the Russian Federation. It is also identified that there is discriminatory provision due to absence of guidance in the Article 145 of the Criminal Code of the Russian Federation about such a victim, like a man who has a child under the age of three years old. The conclusion defines the necessity to decriminalize a crime under the Article 145 of the Criminal Code of the Russian Federation.

Keywords: refusal to hire, unjustified job dismissal, a pregnant woman, a woman with a child.

DOI: 10.12737/21527

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The Conceptual Framework of the Information and Telecommunication Law: Enforcement Issues  Pdf 16

L. K. TERESHCHENKO

doctor of legal sciences, associate professor, honored lawyer of the Russian Federation
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: adm1@izak.ru

This article analyzes the existing conceptual framework of the information and telecommunication law in general and those norms, which recently have been included into the legislation of terms and their definitions, and relation of the terms used. It is shown that information law and communication law are heavily influenced by the information and telecommunication technologies, the Internet. First and foremost these technologies are sources of new terms in law. It is noted that the use of Internet technology arises questions in legal science: whether regulation is required within emerging relationships, whether it is possible to apply existing "traditional" legal norms and whether law is really able to influence these relationships. Given the fact that a mandative feature of norms established by a State should be legal certainty, it is necessary to adapt the new terms to law, to include them into the framework and to provide adequate definitions.

Keywords: information and communication technologies, internet, conceptual framework, terminology, communications provider, information broker, blogger, organizer of the information dissemination in internet, a provider, new offenses.

DOI: 10.12737/21538

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The Legal Construction of Financial Liabilities: Conceptual Bases of Formation  Pdf 16

N. V. OMELEKHINA

doctor of legal sciences
Novosibirsk State University
2, Pirogova st., Novosibirsk, Russia, 630090
E-mail: n.onv@yandex.ru

In this article the legal construction is considered as a method of cognition, interpretation of law and as means of law-making technique at the same time. The author outlines the legal construction of the financial liability and provides with its structural and substantive description. The author offers to consider the legal construction of the financial liability as an inter-branch construction that combines private law constructions and public law constructions of monetary obligations. The majority of these constructions have a complex structure, where each party has the right to claim the completion of obligations and duty to complete these obligations at the same time. In this case, the majority of studied constructions of civil obligations are characterized by counter retribution while public law constructions by counter gratuitousness. The structural elements of this inter-branch construction are subjects, object and conditions of the obligation. The paper analyzes maintenance of selected structural elements. Using the method of scientific abstraction it is proposed to allocate General and Special conditions of financial liabilities. Special conditions of financial liabilities depend on the peculiarities of private law and public law regulations and on target orientation of liabilities (on the formation or on the expenditure of public funds). The author focuses on the target characteristic of structural elements of financial liabilities legal constructions. It is proposed to allocate the total and the direct target orientation of the financial liability.

Keywords: legal construction, financial liability, monetary obligation, monetary duty, financial law.

DOI: 10.12737/21539

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Possible Ways of Reforming of the Liability for Violations of the Tax Legislation  Pdf 16

A. B. ZOLOTAREVA, A. V. KIREEVA

A. B. Zolotareva, candidate of legal sciences
The Russian Presidential Academy of National Economy and Public Administration under the President of Russian Federation
82, Prospekt Vernadskogo, Moscow, Russia, 119571
E-mail: zolot@iep.ru

A. V. Kireeva, candidate of legal sciences, associate professor
The Russian Presidential Academy of National Economy and Public Administration under the President of Russian Federation
82, Prospekt Vernadskogo, Moscow, Russia, 119571
E-mail: kireeva@iep.ru

The article contains the complex analysis of the existing system of the liability for violation of the tax legislation, including the problem of correlation of the tax, administrative and criminal liability for violations of the tax legislation; competition of the jurisdictional bodies, authorized to consider cases on violations of the tax legislation in limited action with prejudice; the shortcomings of the new procedure of bringing to responsibility for the tax offence and the institute of exemption from liability for tax crimes; the ineffectiveness of combating tax crime. According to the analysis the author have made a conclusion that there are systemic problems in the sphere of responsibility for violations of the tax legislation, which cannot be overcome by conservative methods. A radical revising of correlation between various types of responsibility for violation of the tax legislation and creation of a specialized tax justice are required. The article suggests a number of alternative directions for the complex reforming of the tax, administrative and criminal responsibility in the sphere of taxation.

Keywords: tax liability, tax offence, tax crime, active repentance, prejudice, exemption from criminal liability, tax penalties.

DOI: 10.12737/21541

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Secondment Contracts: Several Problems  Pdf 16

T. Yu. KORSHUNOVA

candidate of legal sciences, associate professor
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: labour@izak.ru 

The secondment contract is a new one in Russian legislation, and the question of its legal nature is both of theoretical and practical interest. The article analyzes the contents of such contract, legal status of its sides. As a result of the conducted researches the author has reached the conclusion that the secondment contract cannot be recognized as a paid service contract, but it is a package contract mentioned in the legislation, the regulation of which is carried out using the norms of civil and labour laws. In addition, the problem of determining the parties of the secondment contract was considered in present article. The author noted that such contracts can be made not only by the private employment agencies but by other legal entities, including foreign legal entities and their affiliates (excluding individuals). The author proposed an unusual approach to the definition of "foreign entity" and "affiliate" which claims an attention. Also in the article were analyzed the legislative provisions restricting the possibility of concluding secondment contract.

Keywords: legal nature, secondment contract, labour conrtact, paid service contract, subject of contract, service, private employment agency.

DOI: 10.12737/21542

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The Question of the Establishment of a Scientific Legal Clinics in Russia  Pdf 16

M. Yu. OSIPOV

candidate of legal sciences
Institute of Jurisprudence and Management of the All-Russian Police Association
98, Boldin st., Tula, Russia, 300028
E-mail: osipov11789@yandex.ru

The problem of improvement of the Russian legal education is one of the topical issues facing the Russian legal science. One of the most important directions of the improvement of the Russian legal education is the development of a network of legal clinics under higher educational institutions of legal profile. The present article contains the analysis of the legal regulation peculiarities of the public relations in the field of establishing and activities of legal clinics. Gaps and lacks of legal regulation of work of legal clinics were identified, in particular statutory conflict which on the one hand aimed at the development of legal skills of students, as well as counselling skills, on the other hand — the voluntary participation of the students in the work of the clinic. The author shows the ways to resolve this conflict, including arranging of the students’ practice at the legal clinic, shows the possibility and the need to strengthen the scientific component of legal clinics work, including establishment of so-called scientific legal clinics which will provide legal assistance not only to the general public but also to the legislative, executive and judicial authorities in the sphere of improvement of legislation and practice of its implementation.

Keywords: legal clinic, educational organizations, legal education, lawmaking, law enforcement, public authorities.

DOI: 10.12737/21543

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Definition of “Permission” in Russian Criminal Procedure  Pdf 16

A. A. KHAIDAROV

candidate of legal sciences
Kazan Law Institute of the Ministry of Internal Affairs of the Russian Federation
35, Magistralnaya st., Kazan, Russia, 420108
E-mail: skywriter_al@mail.ru

The article deals with the definition of “consent” which understands as a the permission of the head of the investigative body for the production of the investigator or the resolution of the Prosecutor on the production of the investigator the corresponding investigative and other procedural actions and to their adopting procedural decisions in accordance with the paragraph 411 of article 5 of the Criminal Procedure Code. The author discovered a lack of conformity between the legal definition of “consent” and its use in the text of the Criminal Procedure Code. The definition of “consent” was examined in present article in its broadest sense, it was filled with new content, different from mentioned in paragraph 411 of article 5 of the Criminal Procedure Code. About the definition of "consent" was considered in the article as: 1) the power of the officials (authority), court (judge); 2) the right of a party to criminal proceedings to give consent to the production of the procedural actions or procedural decision; 3) condition of procedural agreements or condition for the adoption of procedural decisions; 4) consent of the two States on issues of international cooperation or the consent of the foreign state in bringing the citizen to criminal responsibility in Russia.

Keywords: consent, sanction, departmental control, judicial control, Prosecutor's supervision over the activities of the investigator (investigator).

DOI: 10.12737/21545

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Dispute Resolution in Modern Stream of Commerce: the Problem of Using of the Terms “Arbitration” and “Arbitration Court” in the Context of Existing Russian Legislation  Pdf 16

A. N. BOYCHENKO

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign3@izak.ru

The author studies the problem of using of the terms “arbitration” and “state arbitration court” in the context of their use in relation to relevant institutions for resolution of commercial disputes. Through a comparative analysis of the term “arbitration” in the legal systems of some States, including the Russian Federation, the author identifies the differences and possible resolving ways of the problem of mixing these terms in Russia. On the basis of the research the author has arrived to the conclusion that it will be useful to change this terms in relation to state arbitration courts. In particular, the author proposes to call them economic, commercial or economic in order to prevent errors in the name of the courts in daily life and avoid the introduction of potential user confusion. The author believes that more preferable in this context the using of the term “commercial and administrative courts”. Also in the article was examined the problem of the Russian approach to the status of International Commercial Arbitration and its resolution of commercial disputes.

Keywords: state arbitration court, dispute resolution, arbitration, international private law, International Commercial Arbitration, the ICAC, the Vienna International Arbitral Centre, arbitration clause, alternative dispute resolution, the Model law of UNCITRAL on International Commercial Arbitration.

DOI: 10.12737/21544

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