Contents of issue # 3/2016

About Some Priorities of Legal Regulation of Local Government  Pdf 16

V. I. VASILIEV

doctor of legal sciences, professor

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

New moments in the ratio of federal and the regional legislation on local government are considered in the article. Some tendencies and perspectives of legal regulation of local government are analyzed. In particular, questions of the organization of local government, its territorial device, competency status of municipal organs, financial security of their powers. The main priority of generalizing the legal regulation of local self-government author sees in the release of local government from the excessive presence of the state. Need of more full embodiment in practice of local government of the constitutional instructions is justified. In article acceptance at the federal level of the concept of a state policy in the field of local government is offered.

Keywords: the Constitution of the Russian Federation, federal and regional laws, municipal bodies, democratic principles, powers, territorial unit.

DOI: 10.12737/18043

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Legal Status of the Head of the Municipality: Actual Problem of Finding the Optimum  Pdf 16

I. V. IRKHIN

candidate of legal sciences, associate professor

Kuban State University
149, Stavropolskaya st., Krasnodar, Russia, 350040
E-mail: dissertacia@yandex.ru

The content and specific legislative amendments in the regulation of the forms of substitution position of head of the municipality in accordance with the provisions of the federal law 03.02.2015 N 8 «On amendments to articles 32 and 33 of the Federal law “On basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation” and the Federal law “On general principles of local self-government in the Russian Federation”» are analyzed in this article. Author analyzed the problems and assessed, evaluated and formulated possible trends of the realization of the institution of city-manager replacement as head of the municipality, the person elected representative body of its members and the head of the local administration, the elected head of the municipality. The liability issues of head of the municipality are analyzed, the relevance of the regulatory definition of effective measures and quality assessment of performed official functions are given, the grounds and procedure responsibility for the improper operation of a regulation of an adequate mechanism for the application of these instruments as well are presented. In terms of issues of selection of the optimal model form of substitution position of head of the municipality author concluded that constitutional due to the trend of development of municipal democracy hampered by conflicting decisions of the sectoral legislative regulation.

Keywords: city manager, elected head of the municipality, deputy head of the municipality, local issues, local community effectiveness.

DOI: 10.12737/18023

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Interaction of the Preliminary Investigation Bodies and General Criminal Investigation Bodies in Russia in the Second Half XIX — Early XX Century  Pdf 16

T. L. MATIENKO

doctor of legal sciences, associate professor

Moscow University of the Ministry of Internal Affairs of the Russian Federation
12, Akademik Volgin st., Moscow, Russia, 117437
E-mail: pet4332@yandex.ru

The article deals with the problem of legal regulation of the criminal proceedings and practical activity of the court investigator and Criminal Police in the fight with crime. The author analyses legal acts of the Russian empire late XIX — early XX centuries and a wide range of archival and literary sources of this chronological period. The author points the systemic contradictions in the practice of the fight against crime, resulting from unresolved legal doctrine and legislation of the late of XIX — early XX centuries. The author considers issues of investigation and inquiry, and inquiry and investigation. The article notes that external expression drawbacks of legal regulation of pre-trial criminal proceedings under the Charter of criminal proceedings in 1864 was the duplication of functions and ignoring ordinary criminal investigation by court investigators and police authorities of the total. And this fact led to the stagnation of the entire law enforcement system and the need to fill organizational lack of judicial reform through the establishment of a part of the general police detective offices caused a new problem — the interaction between the general and the police detective’ analyzing the interaction between the preliminary investigation and the general criminal investigation the author consistently reveals the process of legal, organizational and structural differentiation of functions of the Russian pre-trial criminal proceedings, which began with the judicial reform of 1864 and expressed in the institutionalization of the preliminary investigation, inquest and general criminal investigation.

Keywords: Russian Empire, investigation, Crime Detection, pre-trial, inquiry, preliminary investigation, criminal procedure.

DOI: 10.12737/18024

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Category of Legitimate Interest in Legal Science  Pdf 16

E. A. TSVETKOVA

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

A study of category of legitimate interest in law has a value for its application in practice in various areas of law. At all stages of the of research of legitimate interest, scientists have considered this category by category of interest. These categories relate to each other as a private and common. During the research a legitimate interest in the law the author identifies three periods: the pre-Soviet (the end of XIX century until 1917); Soviet (1917—1990 years); Post-Soviet (from 1990 to present). The legitimate interest was examined by the researchers in a broad sense as the target of subject which it seeks to achieve, and in a narrow sense — as a legal mean. Category of legitimate interest remains the same no matter in what area is its implementation. Legitimate interest provides only the subjects’ desire that is not contrary to law and is within the scope of legal regulation. Relevant to the present time in the scientific studies is that they point out the need for protection of the legitimate interests on a par with the subjective rights.

Keywords: legitimate interest, interest, interest protection, rule of law.

DOI: 10.12737/18025

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Realisation of the Rights of Spouses During Realisation of Activity of the Legal Person  Pdf 16

A. N. LEVUSHKIN

doctor of legal sciences

Russian Law Academy
10a, Bolshoy Karetny pereulok, Moscow, Russia, 127051
E-mail: lewuskin@mail.ru

The article analyzes some of the peculiarities of the legal regulation of family relations in the aspect of the spouses’ participation in the activities of the legal entity. To manage these relationships on the one hand, the rules of family law relating to the regulation of property relations between spouses are used, and on the other — the rules of civil and corporate law defining the legal status and activities of commercial entities. The procedure for disposal of the common property of the spouses is considered, and the cases when it is necessary to obtain the consent of a spouse for transactions are analyzes. Attention is drawn to the possible existence of a conflict between the interests protected by family and civil law. The conclusions which were made by the author are supported by examples from the judicial practice.

Keywords: joint property of spouses, legal body, property section, consent of the spouse.

DOI: 10.12737/18026

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Choreographic Work: Issues of Copyright Protection  Pdf 16

K. A. KIRSANOVA

Russian State University of Justice
69, Novocheremushkinskaya st., Moscow, Russia, 117418
E-mail: k.kirsanova@bk.ru

The article deals with the choreographic work as an object of copyright. The author analyses the notion of choreographic work, proposes the definition of choreographic work. Then the author makes the analysis of two categories: the part and the element of choreographic work, which is resulted in the conclusion, that the common understanding of these definitions in not applicable for the choreographic works. The author also finds inappropriate collective management of rights in the choreographic art. Using selected elements and parts of the choreographic works the author proposes the classification of choreographic works, which has legal value. Dance styles are considered in terms of their eligibility for copyright protection. It is proposed to extend to them copyright protection in a truncated form — by laying down the right of authorship. Finely, the author makes an attempt to formulate criteria for distinguishing choreographic works from the performance of choreographic work.

Keywords: copyright, choreographic work, performance of choreographic work, the element of the choreographic work, the part of the choreographic work, types of the choreographic works.

DOI: 10.12737/18027

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Legislation on Insurance Benefits: Current Status and Trends in Further Development  Pdf 16

M. L. ZAKHAROV

doctor of legal sciences, 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

A comparative study of the state of providing insured for various types of social benefits, including an injury at work is made. It is noted that the basic, most important insurance benefits are granted and paid in the present time, in accordance with two federal laws: of July, 24 1998 No. 125-FZ “On compulsory social insurance against industrial accidents and occupational diseases” and of December, 29 2006 No. 255-FZ “On compulsory social insurance against temporary disability and maternity”. It was found that in recent years the rules for calculation of earnings, on the basis of which they are determined was unreasonably changed. The purpose of these changes is to reduce the level of benefits paid and the corresponding increase in the profits of the business community. Proposals for immediate restoration of previously existing rights of the insured and the old concept of injury in the workplace, in accordance with international standards are prepared.

Keywords: social insurance, insured, employers, temporary disability benefits, maternity leave, child care, income, calculation of wages and benefits, industrial accident, employment injury Convention.

DOI: 10.12737/18028

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Refusal to Recognize the Labor Relations: Some of the Shortcomings in the Structure of a Legal Fiction  Pdf 16

L. V. ZAYTSEVA, O. А. KURSOVA

L. V. Zaytseva, candidate of legal sciences, associate professor
Tyumen State University
38, Lenin st., Tyumen, Russia, 625000
E-mail: larisa_zaiceva72@mail.ru

O. А. Kursova, candidate of legal sciences
Tyumen State University
38, Lenin st., Tyumen, Russia, 625000
E-mail: kursova.oxana@yandex.ru

The fallacy in using the legal fiction in the construction of Article 671 of the Labor Code of the Russian Federation is substantiated in the following article. Since the year 2014 the employer has been given a right not to accept employment relationships with persons actually admitted to work but not authorized by the representative of the employer. The new rule does not take into account the nature of the legal fiction and its basic functions. Legal fictions in the labor law should be used in order to create the legal conditions for optimal coordination of interests between the parties involved in labor relations, the interests of the state, to protect rights and interests of workers and employers. Application of the legal fiction in the Article 67 of the Labor Code is assessed to be justified, allowing to harmonize labor relations. The Article 671 of the Labor Code makes an exception to the general rule of the Article 67 by applying the same technique — using a legal fiction. In addition to the failure of this approach, new rules are contrary to the principles of labor law and enforcement practices, as well as create new legal uncertainties without providing adequate mechanisms for implementation. The paper points out the problems which arise in connection with the new norm of Article 671 of the Labor Code solutions required to overcome them and improve labor law on these issues are formulated in this article.

Keywords: legal fiction, actual admission to work, employment relationships.

DOI: 10.12737/18029

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Information Risks and the Efficiency of Legal Policy  Pdf 16

O. Yu. RYBAKOV, S. V. TIKHONOVA

O. Yu. Rybakov, doctor of legal sciences, professor
Russian Law Academy
10a, Bolshoy Karetny pereulok, Moscow, Russia, 127051
E-mail: rybakov-oy@yandex.ru

S. V. Tikhonova, doctor of philosophical sciences, associate professor
Saratov State University
83, Astrakhanskaya st., Saratov, Russia, 410012
E-mail: segedasv@yandex.ru

Building the information society raises the issue of the legal policy efficiency. The achievement of legal policy objectives depends on the organization of information exchanges. In the information society information and communication technologies are used to organize information exchange so that the number of exchanges required for the resolving task must to be minimum with minimum period. The new information infrastructure of the legal policy means the new risks. The main objective is the identification of the key risks for legal policy efficiency in the information society. The authors used formal logical and formal legal methods. The authors have justified the application of a transdisciplinary science model to the theory of legal policy. They concluded that in the information society legal policy becomes transdisciplinary, its subject structure is expanded, including civil society and institute of science. Key risks for legal policy efficiency becoming the risk of errors in the subject's identification, the risks of a choice of model of interaction (information exchange), risks the downside of the qualitative characteristics information. The authors have reviewed the main approaches to the classification of risks. The key risks for transdisciplinary legal policy efficiency identified as information risks.

Keywords: theory of legal policy, legal policy, risk society, information risk, transdisciplinarity.

DOI: 10.12737/18030

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About the Federal Law Draft on the Bases of Public Administration  Pdf 16

E. V. TALAPINA

candidate of legal sciences

The Institute of State and Law of the Russian Academy of Sciences
10, Znamenka st., Moscow, Russia, 119019
E-mail: igpran@rambler.ru

The proposals on the federal law draft on bases of public administration, designing to create a complete legislative regulation in this sphere are given. Theprovisions of this law draft are directed on improvement of quality of public administration, including its effectiveness and efficiency, and also systematization of instruments of quality management ensuring. The principles of public administration and bases of the executive power organization are established. The main forms of executive authorities’ activity are the acts and the contracts. The author proposes to fix the rules of legality, validity, efficiency and responsiveness for executive authorities’ acts. The draft law has to define interaction bases in the public administration, the main priorities of electronic public administration. The author supposes that adoption of this federal law could become the start point of legal systematization in the sphere of public administration, «having oriented» all existing acts on uniform understanding and regulation of public administration, and also having set the tone for development of rule-making in the considered sphere.

Keywords: public administration, law draft, quality of management, principles.

DOI: 10.12737/18033

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Licensing Activity of Public Authorities in the Field of Defense  Pdf 16

V. I. KUZNETSOV

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: adm1@izak.ru

The problem of legal regulation of licensing method of public relations in the field of defense allocated from the general problems of applying authorization method is considered in this article. Long and widely known form of legal permission (licensing, accreditation and other types of permits) the subject structure which can be defined by a pair of executive authority — the physical or legal person. Meanwhile licensing relationships can occur not only between these types of entities. In the licensing relationship between them can join public authorities at different levels. The study analyzes the current legislation in the sphere of defense, in which a special group of licensing relations associated with the use of the Armed Forces and special weapons. The conclusion about the need for detailed regulation of the internal legislation of the use of armed force of the state through the creation of a special administrative-legal regime is made.

Keywords: defense, public administration, public authorities, the President of the Russian Federation, a permissive way, permissive mode, resolution.

DOI: 10.12737/18035

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Form of Guilt and the Motives of Violations of Safety Rules and Operation of Transport (Art. 263 of the Criminal Code of the Russian Federation)  Pdf 16

D. V. TOKMANTSEV

candidate of legal sciences, associate professor

Siberian Law Institute of the Federal Drug Control Service of the Russian Federation
20, Rokossovskiy st., Krasnoyarsk, Russia, 660131
E-mail: den_tok@mail.ru

Proposals in the science of criminal law approaches to the definition of the form of guilt (intentional, reckless or determined by the court in a particular case) of a crime provided for in Article 263 “Violation of safety rules and operation of railway, air, sea and inland waterway transport and underground” of the Criminal Code of the Russian Federation are considered in the article. The place of motives (positive, neutral and negative) of violation of safety rules and operation as part of the crime is evaluated. Based on the analysis of legal literature and materials law enforcement practice the author made a conclusion that the crime under Article 263 of the Criminal Code is careless, but the study of its subjective side in the theory of criminal law, and the investigative and judicial practice must include the determination of the form of mental attitude of a person for violation of safety rules and operation of transport (which can be both intentional and reckless) and assessment of the motives of such violations.

Keywords: security, transport, movement and operation, safety rules, violation of the rules, consequences, guilt, intent, negligence motive.

DOI: 10.12737/18036

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Warning of Penal Crime: Problems and Solutions  Pdf 16

S. A. KHOKHRIN

candidate of legal sciences, associate professor

The Academy of the Federal Penal Service of the Russian Federation
1, Sennaya st., Ryazan, Russia, 390036
E-mail: hohrinsa@mail.ru

As a result of convicts employees’ poll, study of judicial practice and analysis of statistical data the author revealed the main problems preventing penitentiary prison crime. Bare stuff, insufficient qualifications of employees, employee turnover, crime liaison officer with the criminal world, lack of work organization convicted — these problems are causality reduction for convicts, increase the feeling of permissiveness supervision density from convicts, increase the number of complaints and appeals on the work of correctional institutions, a possible deterioration of the operating environment, reducing the output level of the convicts in paid work and as a consequence of the impossibility of the convicted have the funds to account. The author proposes measures of warning penal crime by improving the implementation of innovative safety systems which can reduce the burden on the staff of the correctional facility, arrange round the clock monitoring of prisoners, as well as the employment of convicts by attracting outside organizations on ways to use the best practices of some of territorial bodies.

Keywords: penitentiary crime, prevention measures, crime, condemned, video control, labor employment.

DOI: 10.12737/18037

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Anti-Corruption Potential of the Code of Administrative Justice in the Part of Appeal of Actions (Inaction) and Decisions of the State Bodies, Local Self-Government Bodies and Their Officials  Pdf 16

N. V. SUKHAREVA, E. I. MURASHOVA

N. V. Sukhareva, 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: adm1@izak.ru

E. I. Murashova
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

In modern Russia, corruption should be seen as a socio-legal phenomenon that impedes the formation of civil society, consolidation of the State, development of the economy and improvement of the standards of living. Anti-corruption is our country’s strategic task today. An important step in the fight against corruption is reforming the administrative proceedings directly affecting the relations between citizens and officials acting on behalf of the Sate within their powers. Research on corruption in historical perspective discovers the need for adoption of regulations of high quality in the field of administrative justice. Disputes between public and private subjects should be settled in accordance with the valid constitutional provisions of the Russian Federation. Adoption of a unified code governing the administrative disputes settlement procedures is an important milestone in formation of administrative justice institution contributing to the creation of an effective mechanism of legal regulations development, as well as to the uniformity of court practice.

Keywords: corruption, administrative proceedings, codified act.

DOI: 10.12737/18038

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Civil Suit as a Part of Criminal Case: Theory and Practice  Pdf 16

T. E. SUSHINA

candidate of legal sciences

Kutafin Moscow State Law University
125993, Russia, Moscow, Sadovaya-Kudrinskaya st., 9
E-mail: suschin2011@yandex.ru

The article analyzes the problematic issues in resolution of civil suit for compensation of property or moral damage caused by crime. The author describes the concept of civil suit in criminal case, notes the advantages, disadvantages and some methods of providing proof. The civil suit is suggested to be seen as the right of victim that should be respected by prosecuting authorities and courts. According to statistics, there is a noticeable decrease in the total number of civil suits in criminal cases. The article includes some thoughts about the reasons for such a decrease and the difficulties which lawyers can face. The author develops new attitude towards civil suit in criminal case, contributing to improve the performance of the prosecuting authorities and courts.

Keywords: civil plaintiff, civil defendant, evidence, victim, criminal procedures, property damage, personal damage, justice, recourse action.

DOI: 10.12737/18039

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Modus of Judge as a Scientific Category  Pdf 16

G. T. ERMOSHIN

candidate of legal sciences, associate professor

Russian State University of Justice
69, Novocheremushkinskaya st., Moscow, Russia, 117418
E-mail: germoshin@list.ru

The article considers the substance of the constitutional-legal status of judges as a scientific category. View of the constitutional-legal status of judges as a set of four modes of judges (professional, business, corporate and modus citizen, a limited constitutional rights legislation on the status of judges in the light of their functional interactions and relationships is presented. The author provides definitions of professional modus of judges as persons, which is a carrier of the judiciary; official modus of judges as persons passing the civil service at the state the position of the Russian Federation (state positions of the Russian Federation subject); corporate modus of judge as a member of the judicial community that defines its special position in the public service, who is simultaneously in the system of state power and over it; the modus of citizen with special civil status of persons restricted in their civil rights and livelihoods of the law on the status of judges, which occupies a separate position in society.

Keywords: constitutional and legal status of judges, judge’s status as a scientific category, modus judges, professional modus judges, official modus judges, corporate modus judges, modus and status of an individual, limited constitutional rights legislation on the status of judges, public office, judicial community, member of the judicial community, civil status, system of state power, constitutional rights of citizens, participation in the administration of justice.

DOI: 10.12737/18040

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Review of the Book “Scientific Concept of Development of the Russian Legislation” (monograph. 7th ed. S. E. Naryshkin, T. Y. Khabrieva,  A. I. Abramova, etc.; еditors-in-chief T. Y. Khabrieva, Y. A. Tikhomirov; the Institute of Legislation and Comparative Law under the Government of the Russian Federation. Moscow, 2015. 544 p.)  Pdf 16

V. N. SINYUKOV

Worship to the Environmental Law: to the 80th Anniversary of S. A. Bogolyubov  Pdf 16

.

Scientists are Discussing the Draft of Updated Code of Administrative Offences of the Russian Federation  Pdf 16

P. P. KABYTOV, O. E. STARODUBOVA

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