Contents of issue # 12/2016

Executive Force of the ECtHR Judgments in a Legal System of the Russian Federation (on the Basis of the Practice of the Constitutional Court)  Pdf 16

S. D. KNYAZEV

doctor of legal sciences, professor
The Constitutional Court of the Russian Federation
1, Senatskaya square, St. Petersburg, Russia, 190000
E-mail: Knyazev@ksrf.ru

The article deals with the complex of issues concerned with the acknowledgement of the executive force of judgments of the European Court of Human Rights (ECtHR) and ensuring their implementation in the Russian Federation. According to the author, the main difficulties of the implementation of the Convention's provisions for Russia are not connected with the Convention for the Protection of Human Rights and Fundamental Freedoms per se, but the interpretation of its norms in the judgments of the ECtHR. The author emphasized that the ECtHR usually avoids the direct conflicts with the Russian constitutional order in a process of decision-making and their execution does not cause any problems in a majority of cases. However, the active using of such tools as evolutive interpretation, European consensus, limits of national discretion, etc. by the ECtHR leads to the fact that its judgments are in contradiction with the Russian Constitution or legal positions of the Constitutional Court of the Russian Federation. Such ECtHR judgments are the subject matter of analysis of present article in a view of the assessing their executive force. On a basis of the systematic analysis of the legal positions of the Constitutional Court of the Russian Federation, the author comes to the conclusion about the necessity of surveying of all available to the Russian authorities’ funds to maintain a cohesive European (Convention) and national (constitutional) legal orders. Derogation from the legal obligation of the ECtHR judgments can be permissible in exceptional cases only and may be dictated only by the aims of protection of the state sovereignty and the supremacy of the Constitution of the Russian Federation.

Keywords: Constitution of the Russian Federation, Convention on the protection of human rights and fundamental freedoms, the decisions of the European court of human rights, interaction between constitutional courts and Strasbourg.

DOI: 10.12737/22715

Adobe pdf 24  Full text in Russian

Risks in Constitutional Law  Pdf 16

T. S. MASLOVSKAYA

candidate of legal sciences, associate professor
Belarusian State University
8, Leningradskaya st., Minsk, Republic of Belarus, 220030
E-mail: maslovskayat@rambler.ru

The article analyzes and clarifies the concept of legal risk, and also contains the risk classification. The author has defined the special features of the constitutional-legal risks and has made a conclusion of their fundamental character. The author examines the key varieties of risks in the constitutional law — risks in the law-making and risks in law enforcement. The analysis of risks in legislative activities has taken a special place in a present study because of substantial nature such risks, which is related with the general problems of legal regulation. The risks arising from conducting of full and partial constitutional reform were also analyzed in the article in accordance with “circulation” of constitutional ideas and values. Institutional risks were mentioned as a particularly important risks. The author has made a few proposals to prevent, minimise and address risks in constitutional law. As a base of the study was used the legislation of Belarus, Russia and other foreign countries.

Keywords: risk, constitutional law, Constitution, constitutional reform, foreign countries.

DOI: 10.12737/22716

Adobe pdf 24  Full text in Russian

Codification of Russian Legislation: Modernity and Development Prospects  Pdf 16

A. I. ABRAMOVA

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: theory@izak.ru

The problems of codification of Russian legislation were analyzed in present article. Codification was seen as one of the most promising directions of improvement of national legislation and as the important task of its development and organizing. Special attention was paid to possible ways of increasing of the codification level of the Russian legislation, to possible ways of overcoming of the negative trends developed in this field in present time. The author stated that the solution to the problems of codification concerns issues of legal technique as well as substantive issues of law. The features of the codification of law in modern Federative Russia were considered. The author shares an opinion that the expanding of the practice of publication of the Legal Foundation is more appropriate. The Foundation as a distinctive form of codified act can effectively be used as the act which implementing the framework of legal regulation in joint competence of the Federation and constituent entity of the Federation, because of the its structure of internal organization of legal material. The author highlighted the increasing importance of the integrated (intersectoral) codification in a terms of prevailing trend of integration of legal regulation.

Keywords: codification, code, branch of legislation, codified act, scope of public relations.

DOI: 10.12737/22717

Adobe pdf 24  Full text in Russian

State: Truth and Myths  Pdf 16

I. P. PONOMAREVA

candidate of legal sciences
Ural State Law University
21, Komsomolskaya st., Yekaterinburg, Russia, 620137
E-mail: normativa@mail.ru

The article is devoted to the investigation of the category of truth and the category of myth in the sciences of state. The phenomenon of the state was analyzed as a specific sphere of the science integration. Despite the considerable achievements of the modern juridical science, many questions on the real essence of state and the methods of its research sill do not hane any answers. Modern explanatory state-legal theory has essential faults. Dealing with these questions, the author proposes their solving in the context of the informational and systematic approach. The author paid a particular attention to the problems and prospects of integration of the latest philosophical, epistemological and methodological achievements in the sciences of state. The author appeals to some works by Plato, who studied the problems of truth and myths. Relevant fragments of the dialogues were found in “Theaetetus”, “Republic” and “Statesman”. The article deals with Plato’s (mathematical) version of state organization which looked forward to ideas of modern natural sciences. Etymology of the concepts “truth” and “myth” was analyzed in present article.

Keywords: state, truth, Plato, information, Plato’s philosophy, cognition, myth, complex dynamic systems, Universe.

DOI: 10.12737/22718

Adobe pdf 24  Full text in Russian

Hague Convention on the Law Applicable to Traffic Accidents  Pdf 16

I. O. KHLESTOVA

doctor of legal sciences, 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: pil@izak.ru

The article analyses of the Hague Convention on Law Applicable to Traffic Accidents of the 4 May 1971. Article 2 of the Hague Convention lays down the general rule: the applicable law is the internal law of the State where the accident occurred. At the same time the Hague Convention states a lot of exemptions from this general rule. In some cases it leads to the application of the law of the country of the vehicle’ registration involved in the accident. The Hague Convention determines the action sphere of the applicable law. The feature of the Hague Convention is that persons who suffered injury or damage has the right of direct action against insurer of the person liable. The problems of correlation of the provisions of the Hague convention and EC Regulation on the law applicable to non-contractual obligations of the 11 July 2007 were considered in the article.

Keywords: Hague Convention, applicable law, traffic incidents, EC Regulation on the law applicable to non-contractual obligations.

DOI: 10.12737/22719

Adobe pdf 24  Full text in Russian

Implementation of the Provisions on Termination and Modification of the Contract in the New Edition of the Civil Code of the Russian Federation  Pdf 16

E. V. POZDNYSHEVA

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 article is devoted to the analysis of practical application of provisions of Chapter 29 of the Civil Code of the Russian Federation which regulating the issues of modification and termination of the contract by courts. The relevance of such analysis was caused by the introduction of the new edition of Chapter 29 of the Civil Code as well as the practice of its application by courts resulting to increasing of the number of lawsuits concerning disputes on modification and termination of the contract caused by the economic crisis of the past two years. In addition, the number of lawsuits on refusal of one of the contractors from the contract in cases stipulated by the contract considering by arbitration courts was also increased. On the basis of the analysis of judicial practice the author has made a conclusion that if parties to a contract want to provide in the contract the possibility of cancellation of the agreement for any reason other than provided in the Civil Code, other laws or other legal acts, such grounds have to be expressly listed in the agreement, or the contract has to contain wording about the possibility of termination of the contract on any other grounds. The author has noted the necessity of unification of the approaches to the qualification of the sum which has to be paid in a case of the early termination of the contract as it provided by the clause 3, article 310 of the Civil Code for the unilateral refusal of execution of obligations regardless of how the specified amount named in the contract.

Keywords: modification of the contract, termination of the contract, significant change in circumstances, rejection of the contract (execution of the contract), the interpretation of contract terms by the court, the fee for a unilateral refusal to execute obligations.

DOI: 10.12737/22720

Adobe pdf 24  Full text in Russian

Framework Agreement as the Basis of the Obligation, or Criticism of the Concept of the Article 429.1 of the Russian Civil Code  Pdf 16

D. O. SHNIGER

candidate of legal sciences
Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: speaknot@mail.ru

The author analyzes the concept, features, scope and contents of the framework agreement from the point of view of the Russian Civil Code, the Concept of improvement of general provisions of obligation law of Russia and the needs of economic turnover. In the article the author formulated the definition of a framework agreement, which is seen as the basis of the obligation to conclude another one, main contract in the future (or several contracts). The author has analyzed the different ways to conclude the basic contract and has made legal qualifications of such contract documents (applications, specifications, etc.). Also the author has come to conclusion on the essential terms of the main contract and has provided practical recommendations for the conclusion of framework contracts and permits arising from them civil disputes. A few issues on accountability of the parties for breach of the master contract were also considered in present article.

Keywords: framework agreement, organizational commitment, cooperation, delivery, contract.

DOI: 10.12737/22721

Adobe pdf 24  Full text in Russian

Institute of Criminal Liability of the Legal Entities as a New Stage of Development of the Criminal Law  Pdf 16

V. E. KVASHIS, Yu. A. SLUCHEVSKAYA

V. E. Kvashis, doctor of legal sciences, professor, honored scientist 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: kvashis@mail.ru

Yu. A. Sluchevskaya, candidate of legal sciences
The Ministry of Internal Affairs of the Russian Federation
12А, Zhitnaya st., Moscow, Russia, 119049
E-mail: ula-sl@mail.ru

The prerequisites for the formation of the Institute of criminal liability of legal entities are under consideration of present article. The author has assessed the current conditions which can affect this institute and has examined the role of this institution in common and civil systems of law. Preconditions of formation of this Institute of the criminal liability of legal entities can be as external, which consists of combining factors of formation of qualitatively new social relations, as internal, due to existing provisions of the Russian legislation. The first group of prerequisites is related to the development of social consciousness, complication of technological processes and economic relations, the processes of globalization. The second group includes the obligations caused by the state participation in international agreements, the norms of existing national legislation, defining characteristics of a legal entity, and existing elements of criminal-legal influence concerning legal entities in the criminal law. The author has noted that the existing provisions of the Russian legislation are not an obstacle to the introduction of this institute and concluded that further development of the Institute of criminal liability of legal entities in the domestic legislation related to the scientific rationale of its relationships to existing elements of the national legal system. In this context the presence of a social conditions is essential, such conditions can help to effective functioning of the mechanisms of self-regulation and control of legal entities.

Keywords: criminal responsibility, legal entities, historical and contemporary background, national legislation.

DOI: 10.12737/22723

Adobe pdf 24  Full text in Russian

Combating Legalization and Transferring of Bank Assets Abroad  Pdf 16

Yu. G. TORBIN, O. V. YANCHURKIN, V. G. MAMATOV

Yu. G. Torbin, doctor of legal sciences, professor, honored lawyer of the Russian Federation
Russian Law Academy of the Ministry of Justice of the Russian Federation
2/1, Azovskaya st., Moscow, Russia, 117638
E-mail: torbinug@rambler.ru

O. V. Yanchurkin
Academy General Prosecutor’s Office of the Russian Federation
2/1, Azovskaya st., Moscow, Russia, 117638
E-mail: agprf09@mail.ru

V. G. Mamatov, candidate of legal sciences, associate professor
Plekhanov Russian Economic University
36, Stremyanny lane, Moscow, Russia, 117997
E-mail: mamatov.vg@rea.ru

The article considers the issues of combating money laundering and illegal transferring of bank assets abroad, which are the most important in the period of full-scale economic crisis in Russia. The author analyzed the data of official statistics and identified the main criminal ways (schemes) of the bank assets transfer abroad and give them a lawful appearance to possession, use and disposal. There is the practice of investigation of criminal cases of this category in present article, as well as examples of permissible violations of the law. The author identified the most significant direction to effectively combating crimes of such kind, formulated the criteria of the activities of the bank activity aimed at the transfer of cash and other liquid assets of the bank abroad. The measures of improving of the existing legislation in the sphere to combat money laundering and illegal transferring of bank assets abroad were proposed by the author.

Keywords: legalization, laundering, offshore companies, bank assets transfer, cash, criminal, bankruptcy, misappropriation and embezzlement, abuse of power.

DOI: 10.12737/22724

Adobe pdf 24  Full text in Russian

Historical Aspect of Criminal Liability for Fraudulent Bankruptcy in Russia and Foreign Countries  Pdf 16

S. P. KUBANTSEV

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: spkubantsev@mail.ru

The article highlights the issues of legal regulation of public relations related to the unfair bankruptcy, in their historical aspect. It outlines the legislative instruments used by foreign countries and Russia for regulating of liability for bankruptcy in the period up to the 19 century. The author studied the laws of foreign countries and the Russian legislation, which contains provisions on liability for bankruptcy, the regulation of the debtor's property distribution of priority, as well as differentiation of debtors to those who can not meet its debt obligations, and those who simply do not want to fulfill its debt obligations (malicious insolvency). Due to this situation the questions about the time of distinguishing the respective responsibilities of the bankrupt entity are arise. The author mentioned the move away from a single penalty for any debtor who is unable to pay its debts, which depends solely on the fact of the debt of non-payment, in the direction of several forms of punishment, depending on the fault of the debtor in its own bankruptcy, differentiation punitive and coercive measures of material nature, the development of methods and means of implementation creditors' rights.

Keywords: bankruptcy, liability, criminal, fraud.

DOI: 10.12737/22725

Adobe pdf 24  Full text in Russian

Prevention of Corruption: Problems and Perspectives  Pdf 16

A. M. TSIRIN

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: antikor@izak.ru

The present article is devoted to the problem aspects of the prevention of corruption. The author suggests to adjust continuous monitoring corruption practice based on voluntary and anonymous providing information by officials, citizens, representatives and employees of the organizations. Such measures as prevention and a settlement of conflicting interests, prevention of a conclusion of the corruption income abroad, use of the stimulating mechanisms, and also distribution of anti-corruption bans and duties on the non-state organizations are analyzed. In the conclusion of article the author draws that the particular emphasis in respect of the general prevention of corruption should be placed on all-system measures of the prevention of corruption.

Keywords: counteraction, corruption, criminal case, prevention, standards, stimulation.

DOI: 10.12737/22727

Adobe pdf 24  Full text in Russian

Anti-Corruption Mechanisms in the Implementation of the Personnel Policy of State Bodies and Bodies of Local Self-Government  Pdf 16

E. M. PATOVA

candidate of historical sciences
Pitirim Sorokin Syktyvkar State University
55, Oktyabrskiy ave., Syktyvkar, Russia, 167001
E-mail: Patova@yandex.ru

The legislation in force imposes certain requirements for the organization of work of personnel services of state bodies and local self-government bodies on prevention of corruption and other offences, creating conditions that exclude the possibility of corrupt behaviour of state and municipal employees. Currently, the legal system of combating corruption is improving; new prohibitions and restrictions related to the passage of state and municipal services are introducing; the control over compliance with the legislation is enhancing; importance of the commissions on observance of requirements to staff behavior of state civil (municipal) staff and conflict of interests is improving. The anti-corruption issues are in the focus of law enforcement and regulatory authorities, the media and the public. However, existing measures are not enough. One of the reasons for the unsuccessful fight against corruption, according to the author, is a significant gap between the declared principles and real embodiment in practice. Continues the practice of appointing officers based on personal loyalty and loyalty to his superiors, violations of tender procedures, evaluation of activities of state and municipal employees does not depend on the level of their professional knowledge and competence, and the position of leadership, the presence of related and friendly relations. On the example of Komi Republic the article considers the issues of regulating the procedure of organization and conducting of a special psychophysiological researches with polygraph use, evaluated its role in reducing corruption in the system of state and municipal management.

Keywords: anti-corruption, civil service, municipal service, personnel technology, the polygraph.

DOI: 10.12737/22728

Adobe pdf 24  Full text in Russian

Anti-Corruption Legal Mechanisms in Education Sector  Pdf 16

I. V. PLYUGINA

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: inna_wp@mail.ru

The article analyses the specific anti-corruption legal mechanisms in education sector. The author has emphasized the problems of local regulation: the issues of prevention and overcoming of conflict of interests of teaching staff; problems of the commissions for the settlement of disputes between participants of educational relations; some of the problems of implementation of anti-corruption expertise of local acts. Special attention was paid to the rating system of evaluating of teachers, as well as applied indicators. The author has made the conclusion about the lack of effectiveness of internal controls, has highlighted the main legal mesures of corruption prevention for the legislation of the constituent entities of the Russian Federation. As a result the most common organizational forms of interaction of bodies of state power of subjects of the Russian Federation with organizations engaged in educational activities were identified by the author.

Keywords: corruption, educational services, educational institution, bodies of control, education, evaluation, quality, local acts of educational institutions.

DOI: 10.12737/22730

Adobe pdf 24  Full text in Russian

Public-Private Partnership in the Field of Physical Culture and Sports  Pdf 16

T. E. MELNIK

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

The article is devoted to problematic issues of public-private and municipal-private partnership in the field of physical culture and sports. Further development of this form of interaction between the state (municipalities) and businesses in the field of physical culture and sport involves a number of issues. Some of them are connected with a social component. The development of public-private partnership in the field of physical culture and sport must be dictated by the need for the implementation of the goals and objectives of the social policy of public authorities in this area. The availability of public services, including in the field of physical culture and sport, should be enshrined as a legal principle of state-private and municipal-private partnership. The author proposed to consolidate in legislation the priorities of the public-private (municipal-private) partnerships in the field of physical culture and sports. One of them has to be the development of mass sports. Public-private (municipal-private) partnerships can be used to develop the system of sport clubs at its place of residence. It is necessary to consider concluding agreements for such partnerships not only in relation to sports facilities, but also in relation to the state and municipal services in the field of physical culture and sports.

Keywords: public-private partnership, municipal-private partnerships; state and municipal services, sports objects, sports clubs.

DOI: 10.12737/22731

Adobe pdf 24  Full text in Russian

Regulatory Function of the Environmental Law: Realization Problems  Pdf 16

N. I. KHLUDENEVA

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: khludeneva@mail.ru

The article defines the content of the regulatory function of environmental law, which manifests itself not only in its ability to capture the already achieved level of development of social relations in the environmental field, but also in the determination of this branch of law on the further development of ecological relations. According to the author, despite the presence in the arsenal of environmental law in Russia a progressive, meeting the requirements of international ecological standards of ways and means, relations in the sphere of environmental protection cannot be considered as efficient. A high conservation potential tool of modern environmental law often plays a secondary role in coordination of interests of participants of ecological relations, not allowing them to exercise due legal activity. The article analyzes some problems of realization of regulatory functions of environmental law in the context of key challenges of environmental law regulation.

Keywords: environmental law, regulatory function, development of the ecological relations, problems of realization of regulatory function of environmental law.

DOI: 10.12737/22732

Adobe pdf 24  Full text in Russian

Legal Problems of Realization of Rights on Forest Areas  Pdf 16

Yu. I. SHUPLETSOVA

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: murrmel@mail.ru

Presented article is the result of study of the issues of legal regulation of forest exploitation in the Russian Federation made by the author. The work substantiates the position according to which the use of forests is a form of realization of the subjective rights of forest management. Forests are the main natural resources of Russia and of the world. Despite the fact that the forests are renewable natural resource, their protection from damage and destruction during use is one of the most important tasks of the forest law. The author concludes that taking into account features of object of legal regulation, in the process of implementation of right for the forest management responsibilities of the right holder are essential. The article also examines the main types of forest use envisaged by the forest legislation of the Russian Federation, as well as legal problems arising in the implementation of forest management by different actors of economic and other activities. The author analyzes a number of subordinate normative legal acts and court decisions to identify legal uncertainties and gaps in the forestry law.

Keywords: forests, forest management, forest use, subjective right, billet of wood.

DOI: 10.12737/22734

Adobe pdf 24  Full text in Russian

Polyfunctionality of Justice: Reality or Legal Reality Interpretation?  Pdf 16

P. P. SERKOV

doctor of legal sciences, professor, honored lawyer of the Russian Federation
Russian State University of Justice
69, Novocheremushkinskaya st., Moscow, Russia, 117418
E-mail: serkov_pp@vsrf.ru

In the article contains the analysis of such fundamental concepts as the judicial system and legal proceedings, which are the elements of justice as a whole. The article consists of three parts, which are containing the deductive analysis of the institutional structure of justice. In the first part of present article the interaction of the institutions of the judicial system and legal proceedings, the dynamics of institutional and functional changes, as well as evaluation of these changes were disclosed. Further the author examines every aspect of justice. Thus, in the second part of the paper the judiciary, as constitutional guarantees of fair justice, were studied. Also the judicial system and its components were analyzed by the author. The third part of the article focuses on the second element of justice — judicial proceedings. In this part of the work the author discloses the two components of judicial proceedings: judicial proceedings as a consequence of the conflict and judicial proceedings as a material expression of fairness in a particular conflict. The author defines the definition of the term "judicial proceedings" and provides its analysis from the different points of view, reveals the essence of the judicial proceedings. Also the fundamental functions and principles of justice were presented and examined in present article. In this part the author addresses the question of the relationship of the specialization of courts with the function of justice and of the relation of judicial proceedings and justice.

Keywords: functions of justice, multifunctionality of justice, justice, judicial control, judicial authority, judicial proceedings.

DOI: 10.12737/22735

Adobe pdf 24  Full text in Russian

List of Publications in the Journal of Russian Law for 2016  Pdf 16

Contents of issues:

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