Contents of issue # 4/2016

New Regulation Vectors — “Alternative” Right?  Pdf 16

Yu. A. TIKHOMIROV

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: office2@izak.ru

Manifestations of crisis in Russia and other courtiers stimulate the effective use of law resources. Complicated processes in legal sphere encourage exploration of their tendencies and new vectors. Acknowledgement of the supremacy of law is not accompanied by a single-line trend of ensuring its actual high role in the society, one can observe phenomena of lawlessness and legal nihilism. That is why it is important to search for new aspects of legal regulation, among other things, by means of using alternative social regulators. In particular, we mean other alternative social norms that do not contradict the law, including non-state sources of law-making and self-regulation. Such phenomena can be observed both in the national law and in the sphere of international legal regulation where new forms of international obligations and self-commitments of states are successfully applied along with the traditional contract forms. Tangling of the abovementioned vectors is weakened by the tendency to power struggle with the law, when violence breaks down the legal framework foundations. That is why values, principles and fair legal rules enrich the social potential of the law.

Keywords: law, regulation, social regulators, national law, international law, state, violence.

DOI: 10.12737/18682

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Local Normative Legal Regulation: Status and Perspectives  Pdf 16

V. K. SAMIGULLIN

doctor of legal sciences, professor
East Economical and Legal Humanitarian Academy
215/4, Mendeleev st., Ufa, Russia, 450071
E-mail: Samigullin_v@vegu.ru

The article provides an overview of the development of the idea of local normative legal regulation in the Imperial Russia, during the Soviet and post-Soviet periods. The author upholds the idea that the local normative legal regulation is the form (way, means, method) of the decentralized legal regulation of social relations and at the same time it is a kind of a legal channel for familiarization with democracy. The author notes that the local normative legal regulation in the sphere of public law and private law has its own characteristics. In the area of private law corporate legal regulation is being developed. The author draws attention to the necessity of distinguishing between the local normative legal regulation and normative legal regulation carried out at the level of local government within the framework of the municipal law. The author draws the conclusion that the local normative legal regulation has vast perspectives, if one follows the social partnership doctrine, which means the acknowledgement of various social interests of any social groups and granting them with the legal right and actual possibility to participate in relevant social-legal processes, in the formation of public opinion and adoption of legal solutions at various levels, including at the level of enterprises and organizations, corporations.

Keywords: law, standardization, local regulation, decentralization, private law, public law, corporate relations, legal activities, development.

DOI: 10.12737/18683

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On Linguistic Expert Examination of Draft Laws  Pdf 16

M. V. BATYUSHKINA

candidate of pedagogical sciences
The Legislative Assembly of Omsk Region
1, Krasny Put st., Omsk, Russia, 644002
E-mail: soulangeana@mail.ru

The article is devoted to the problem of determination of the subject of linguistic expert examination of draft laws on the basis of the current legislation analysis in the aspect of theoretical and applied linguistics. In this research the author uses the comparative, statistical methods, as well as induction, analysis and synthesis. The article analyzes different types of definitions of linguistic expert examination of draft laws, and examines some problems related to the expert analysis of draft laws. The author of the article notes certain features of correlation between linguistic expert examination of draft laws and legal expert examination of draft laws. The author expresses her own position in relation to the concept and content of linguistic expert examination of draft laws, on the basis of the current practice in the rule-making sphere. The author pays attention to the criteria for evaluation of the text of the draft law: “consistency of presentation” (allows analyzing and evaluating linguistic units and the text of the draft law as a voice unit), “literacy” (allows checking the draft law text for grammar, spelling, punctuation, slips, factual or technical mistakes) and “matching style” (allows analyzing and evaluating the draft law text talking into account the compliance to stylistic features of drafting legislative texts).

Keywords: the language of the law, text, draft law, linguistic expert examination, legal engineering.

DOI: 10.12737/18684

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Problems of Property Law in Modern Russian Law  Pdf 16

E. A. SUKHANOV

doctor of legal sciences, professor, honored scientist of the Russian Federation
Lomonosov Moscow State University
1, Leninskie Gory, Moscow, Russia, 119991
E-mail: civil@law.msu.ru

The article analyzes the progress and further prospects of development of the Russian civil legislation in terms of actual and appropriate improvement of the proprietary legal regulation. The author notes the historical prerequisites of and, substantiates the possible areas for, development of the Russian civil law in terms of traditions of the European private law which originates from the Roman law and the law of pandects; in this connection, the author substantiates the necessity for systemic development of the legislative regulation of limited proprietary rights. In line with the existing specific features of legal regulation of proprietary relations in the Russian law, the author considers advantages of regulation of rights to land plots, which are in the public domain, by means of forms and types of limited proprietary rights; in this connection, the author demonstrates inefficiency of extending mechanisms of law of obligations only, mainly the models of lease contracts, on land relations. The author analyzes differences between legal regulation of homogeneous relations within the civil legislation and the land legislation as a temporary phenomenon and a feature of the transitional stage in the development of the Russian civil legislation.

Keywords: proprietary rights, land legislation, civil legislation, superficies.

DOI: 10.12737/18685

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Vindication of Contribution to Chartered Capital during the Creation of a Corporation (LLC)  Pdf 16

D. V. LORENTS

candidate of legal sciences
South Ural State University
76, Lenin avenue, Chelyabinsk, Russia, 454080
E-mail: lord-dv@mail.ru

This scientific work analyzes the characteristics of vindication of specific things that are contributed to the Chartered capital of a Limited Liability Company (LLC). The author critically assesses the doctrinal and judicial positions in relation to the commutative nature of contributions to the Chartered capital. The non-gratuitous nature of the contribution acquisition is artificial and unusual. The economic entity doesn’t provide the founder with the share in the Chartered capital as it does not possess it. The share is acquired by the founder by virtue of law in connection with the LLC state registration and is a converted contribution. In the light of the civil legislation reform in the Russian Federation and with regard to the English law particular attention is paid to understanding the bona fide of a legal entity through the behavior of its head. Under certain circumstances, it’s not reasonable to regard the head’s evil conscience as the will of the company. In case of a claim for the recovery of contributions to the Charter capital prior to the state registration of the Corporation in the register, the claim should be reported directly to the contributed assets, which are advisable to position as an “unused” contribution. The court must suspend the case until the establishment of a legal entity.

Keywords: vindication, contribution to the share capital, share in the chartered capital, additional contribution to the share capital, bona fide of the corporation.

DOI: 10.12737/18686

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On Absolute Legal Force of Obligations  Pdf 16

S. N. KASATKIN

candidate of legal sciences
Lobachevsky Nizhni Novgorod State University
4, Ashkhabadskaya st., Nizhny Novgorod, Russia, 603115
E-mail: sergcastro@yandex.ru

The article considers the recent legislative changes that allow the extension of the notion of an obligation as a relative relationship. Based on judicial practice and the positions of well-known jurists, the author comes to the conclusion that an obligation does not only connect the debtor with the creditor, but also generates passive duty for all the subjects of law to refrain from creating obstacles to the creditor in the exercise of its subjective rights. Meanwhile a creditor has the right to protect subjective rights from violations not only on the part of the debtor but also on the part of any third party. However, in a number of statutory cases, the creditor may be denied the opportunity to refer to the obligation in relations with third parties. Such legal consequences occur, in particular, in case of non-fulfillment of legislative requirements on the necessity of state registration of the contract, and in case of violation of the rules of the notification on the pledge of movables. The author proposes to refer to legal significance of relative relationship for third parties as an absolute legal force of obligations.

Keywords: obligation, relative relationship, subjective right, pledge accounting, registration of the contract.

DOI: 10.12737/18687

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The “Employment Deal” Category and the Problem of Contestation of Legal Acts that Determine Content of the Wage Labor Relations  Pdf 16

V. A. BOLDYREV

doctor of legal sciences, associate professor
The Far Eastern Law Institute of the Ministry of Internal Affairs of the Russian Federation
15, Kazarmeny pereulok, Khabarovsk, Russia, 680020
E-mail: vabold@mail.ru

The author proves that the existence of common problems associated with the need to invalidate employment contracts, apprenticeship agreements with employers, agreements on full material liability, and the desirability of legislative assumptions to contest collective agreements (local regulations) in whole or in part, does not indicate that they should be merged under the collective name of the “employment deal”. The author justifies that the core area of focus to resolve current problems related to corrupt practice during the adoption of local regulations, as part of social-partner relations among other things, should belong to a different domain — in legislative specialization of bodies competent to adopt (coordinate, approve) them, in particular, in transfer of relevant powers by discretionary rules of legislation to supreme corporate bodies of legal entities. The author proposes to enshrine in the law the rule on subsidiary application of the civil legislation on the invalidity of transactions to labour relations.

Keywords: employment deal, invalidity, labour agreement, extraordinary deal, major deal, interested party transaction, contestation.

DOI: 10.12737/18688

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Certification as a Way to Assess Teachers’ Qualification: Legal Regulation Issues  Pdf 16

L. A. EGOSHINA

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

This article investigates legal acts, both federal and bylaws (regional, municipal, local) that regulate teachers’ certification. The author points out a number of problems in legal regulation of certification of these employees. One of the problems concerning teachers’ qualification is the way how to carry it out. The current legislation does not provide clear definition for that. The article analyzes the draft federal law “On Amendments to the Labor Code of the Russian Federation”, which proposes to include a new chapter on the evaluation of employees’ skills. The draft law is aimed at forming a mechanism for evaluating employees’ professional skills that is carried out in two forms: certification (held by employers) and certification of employees’ skills (held by other organizations granted with the relevant authority in the prescribed manner). The author proposes solutions to address the gaps in the draft law.

Keywords: certification, employees’ qualification, teachers, qualifying commission, education, labor legislation.

DOI: 10.12737/18689

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Extraordinary (Special) Administrative-Legal Regimes  Pdf 16

S. M. ZYRYANOV

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: adm1@izak.ru

Legal regimes as complexes of legal means which help to establish more or less stable, sustainable administrative legal procedures for functioning of certain facilities or activities of certain subjects, are of considerable theoretical and practical interest in modern legal reality, characterized by high volatility, instability, because they ensure manageability not only under normal conditions, but also in emergency situations. The article discusses problems of systematizing administrative-legal regimes, determines the role of extraordinary regimes and proves the necessity of their introduction. The author comes to the conclusion, that extraordinary regimes are a variety of special administrative legal regimes introduced in emergency situations, temporarily, until the liquidation of such situations or when they naturally cease to exist or until mitigation of the effects from such emergency situations. Temporary nature of such regimes is conditioned by peculiarities of their content, among which there is excessiveness of measures envisaged by them under normal conditions, change in management system, suspension in functioning of enterprises and organizations.

Keywords: administrative-legal regime, case law, emergency situation, extraordinary regime.

DOI: 10.12737/18690

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Procedural Defects of Administrative Acts  Pdf 16

D. S. ANDREEV

candidate of legal sciences
Reshetnev Siberian State Aerospace University
31, Krasnoyarskiy Rabochiy avenue, Krasnoyarsk, Russia, 660037
E-mail: andredenis@yandex.ru

The article addresses the problem of procedural defectiveness of administrative acts, which has not yet been examined extensively in Russian legal literature. The article provides a definition of procedural defects of administrative acts and offers a brief comparative overview of the issue in legal systems of France, Germany, the UK, Bulgaria and Poland. The paper demonstrates historical development of the theme in the Russian legal doctrine while special attention is paid to the analysis of the current Russian law and application thereof. By a number of examples the author substantiates the thesis that contemporary administrative law of Russia contains sufficient ground for theoretical conceptualization of the notion of substantial procedural defects of administrative acts. The author puts forward a set of criteria for classification of procedural defects into substantial and non-substantial and argues that such differentiation constitutes a particular manifestation of general legal trends.

Keywords: defect, procedure, administrative act, material breach, the right to be heard, the concept of substantial procedural defects, administrative law.

DOI: 10.12737/18691

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Historical Conditionality of the Institute of Bribe Offering and Promising  Pdf 16

O. I. SEMYKINA

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: semykola@yandex.ru

The article discusses criminalization trends in the Russian criminal law of the institute of bribe offering and promising. Analyzing the rules on liability for bribery in the criminal law in mid XIX — early XX centuries, the author comes to the conclusion about historical conditionality of the review of legislative approaches to enshrine in the Russian Criminal Code the institute of bribe offering and promising in favor of recommendations of anticorruption standards. The study attempts to justify the possibility of introducing criminal liability for bribery not only in articles 290, 291 of the Russian Criminal Code, but also in other articles of the Code, that include giving and accepting any material wealth or other benefits as a criminal-forming characteristic (for example, in Articles 201—204, 285—286, 309). Thus, this article raises the issue of presence of a set of special hybrid rules in the Russian Criminal Code, forming part of the institute of criminal liability for offering and promising certain benefits. The author identifies and confirms by modern case studies three models of criminalization of bribe offering and promising or abuse of powers and recognizing them completed at an earlier or later stage of criminal activity.

Keywords: bribery in the public sector, bribe offer, promise of bribe, extortion, bribery in the private sector, model of criminal rules, institution of criminal liability.

DOI: 10.12737/18692

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Debatable Aspects of Determining Boundaries of Specific Object of Crimes Stipulated by Chapter 19 of the Criminal Code of the Russian Federation  Pdf 16

V. A. NOVIKOV

candidate of legal sciences, associate professor
Russian State University of Justice
69, Novocheremushkinskayа st., Moscow, Russia, 117418
E-mail: nva-2007@mail.ru

This article discusses issues of the boundaries of specific object of crimes stipulated by Chapter 19 of the Criminal Code of the Russian Federation. The author draws attention to the fact that the title of this chapter of the Criminal Code of the Russian Federation: “Crimes against the Constitutional Rights and Freedoms of Individuals and Citizens” does not accurately reflect its content. A number of crimes that infringe on the constitutional rights and freedoms are described in other chapters and even sections of the Criminal Code of the Russian Federation. At the same time corpus delicti in art. 1381 of the Criminal Code of the Russian Federation, unreasonably included in Chapter 19 of the Criminal Code of the Russian Federation as the main direct object of this crime, is not related to the specific object — social relationships that ensure the implementation of constitutional rights and freedoms. In this connection the author proposes to change the title of this Chapter of the Criminal Code of the Russian Federation using the citation method for groups of constitutional rights and freedoms of an individual and citizen, which are actually protected by articles of this Chapter and to move the legal rule of responsibility for trafficking in special technical devices intended for secret obtaining of information, to Chapter 29 of the Criminal Code of the Russian Federation.

Keywords: specific object of the crime, crimes against the constitutional rights and freedoms of an individual and citizen, trafficking in special technical devices intended for secret obtaining of information, violation of the secrecy of correspondence, telephone conversations, postal, telegraphic or other communications of citizens.

DOI: 10.12737/18693

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Criminal Law Interpretation of Victimization Aspect of Domestic Violence  Pdf 16

V. S. KHARLAMOV

candidate of legal sciences, associate professor
All-Russian Research Institute of the Ministry of Internal Affairs of the Russian Federation
5, 12th Krasnoarmeyskaya st., St. Petersburg, Russia, 190005
E-mail: valentinx55@gmail.com

The article examines criminal-legal features of victimization aspect of domestic violence, presents the analysis of the use in legislation of such terms as “victim” and “injured person”, their legal specifics, reflects debate in criminal law theory about characteristics of victimization aspect. The author provides classification for victims of criminal assault, reveals gaps of the Russian criminal legislation in the sphere of family protection, puts forward proposals for improving the criminal law aimed at harsher punishment for the violation of rights and interests of a family and its members. The author sees a wider scope of persons recognized as victims to be one of the possible ways of improving legal protection of personal interests, accompanied by enshrining relevant public-law mechanisms of protecting rights and interests of “other persons” as victims in the Criminal and Criminal Procedure Codes of Russia. In order to extend the definition of “victim”, the author proposes to differentiate the legal status of the abovementioned category of persons, talking into account the specifics of each of those persons.

Keywords: criminal law protection, legislation, crime, victim, family violence.

DOI: 10.12737/18694

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Achieving Balance between Private and Public Interests in Arbitration Disputes  Pdf 16

S. A. KAZHLAEV

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

The article is devoted to the issue of achieving balance between private and public interests in arbitration disputes. The author notes that arbitration proceedings as one of the alternative forms of civil rights protection, guarantee the realization by the parties of the right to freedom of contracts and the right to judicial protection in a voluntarily elected procedural form. The author draws attention to the fact that a legislator can impose certain restrictions, based on the need to ensure balance between private and public interests depending on the object of the dispute, its social importance, conditions of civil circulation, legal culture and development of the national social and economic system. The article contains proposals for amendments and additions to the new Federal Law “On Arbitration (Arbitration Proceedings) in the Russian Federation”. The author concludes that the new task of legal regulation is the creation of favorable legal environment for the functioning of arbitration courts which being an institute of civil society, will contribute to more effective functioning of national economy under the conditions of a civilized market, implementation of stability in economy management and attractiveness of the jurisdiction of the Russian Federation as a venue to conduct arbitration with participation of foreign countries.

Keywords: arbitration dispute, the Constitutional Court of the Russian Federation, private and public interests, reform of the arbitration court.

DOI: 10.12737/18696

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Rehabilitation of Victims of Political Repression as a Comprehensive Criminal Procedure Institute  Pdf 16

S. M. VOROBIEV

candidate of legal sciences, associate professor
The Academy of the Federal Penal Service of Russia
1, Sennaya st., Ryazan, Russia, 390036
E-mail: sergey.vorobev.78@inbox.ru

The article is devoted to development problems of the criminal procedure Institute of rehabilitation. The author makes a scientific analysis of the formation of the institute of rehabilitation as a comprehensive criminal procedure institute aimed at restoration of social justice for victims of political repression. In addition, the article describes characteristic features of the regulatory actions of the institute of rehabilitation in the system of the Russian law in its historical, political, and unique processes. In this paper we use modern general scientific and special methods of cognition: analysis, synthesis, historical, legal, structural-functional, normative-logical, comprehensive and comparative law. Scientific novelty of the work lies in consideration of normative-legal regulation of the institute of rehabilitation of victims of political repression as a comprehensive legal institution. Also this article reflects the author’s subjective position on the subject.

Keywords: rehabilitation, harm, prisoners of war, victims of repression, citizens, children, prisoners, justice.

DOI: 10.12737/18697

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Statute Splitting in Private International Law  Pdf 16

O. V. LUTKOVA

candidate of legal sciences, associate professor
Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123286
E-mail: ovlutkova@mail.ru

This article considers the basic concepts of the private international law doctrine about “splitting of the statute”. Statute splitting is the phenomenon when more than one legal order is applied at the same time to a single legal relation. However, there are several conflicting approaches regarding this scientific issue. Representatives of one of the approaches see splitting of the statute in the domestic law conflicts of state characterized by a multiplicity of legal systems. Representatives of the other approach believe that splitting of the statute occurs when separate parts of a single legal relation are subject to different conflict of law rules. The author of this article holds the opinion of the representatives of yet another approach to this issue and gives arguments in favor of the position that “genuine” splitting of statute means that a single legal relation is regulated by a single conflict of laws rule but in reality the laws of several states rather than the law of one state are applied according to the facts of the single legal relation. The author suggests new terminology for the “splitting of the statute” concept.

Keywords: private international law, splitting of the statute, choice of law, domestic law conflicts.

DOI: 10.12737/18701

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Legislation on Foreign Investments and Practice of Investment Dispute Resolution  Pdf 16

S. V. BORODKIN

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: borodkin.stas@gmail.com

Russian companies doing business outside of the Russian Federation require special protection of their rights and lawful interests. Several methods of protecting foreign investor rights are available under the international law, including national courts and tribunals and commercial arbitrations (both institutionary and ad-hoc). International Center for Settlement of Investment Disputes is a special institution established to resolve the controversies related to foreign investments. It was created under an international treaty and its decisions are not subject to sovereign immunity. The article considers ICSID practice regarding the definition of an investment, since disputes are related to an investment activity, which is a topical question when dealing with the determination of the Center competence. While the analyzed cases do not have the power of binding precedents, when the arbiters elaborate on the definition of a foreign investment they use specific criteria that could be relevant for the national law. Since international practice has a more specific definition of foreign investments than the Russian law, the author suggests that the former be taken into consideration when a foreign investment is defined in Russian legal texts. It could ensure better protection of the rights of Russian legal entities abroad.

Keywords: law, foreign investments, International Center for the Settlement of Investment Disputes, practice.

DOI: 10.12737/18702

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Judicial Power as Mandatory Attribute of a Constituent Entity of the Russian Federation  Pdf 16

A. M. TSALIEV

doctor of legal sciences, professor, honored lawyer of the Russian Federation
The Constitutional Court of the Republic of North Ossetia — Alania
1, Svobody square, Vladikavkaz, Russia, 362038
E-mail: constsudalania@mail.ru

The article criticizes the idea of territorial federalism and on the example of judicial power the author demonstrates that attempts to reduce the constitutional and legal status of constituent entities of the Russian Federation to the level of administrative-territorial units only pursue the aim to divest them of state authority and property. In order to substantiate his point of view, the author analyzes the legal status of constituent entities of the Russian Federation and notes that judicial power is defined as their mandatory attribute. The author underlines social demand and necessity in founding and functioning of constitutional (charter) courts of constituent entities of the Russian Federation. The author criticizes the draft law which proposes to exclude justices of the peace from the courts of constituent entities of the Russian Federation and grant them the status of federal courts. The author describes German experience, where constitutional justice is carried out as part of the model of a two-level constitutional control — by the Constitutional Court of the Federation and bodies of specialized constitutional justice of constituent entities as its integral part.

Keywords: federalism, constituent entities of the Russian Federation, judicial power, justices of the peace, constitutional courts of constituent entities of the Russian Federation.

DOI: 10.12737/18703

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Judicial Practice Impact on Law Making  Pdf 16

T. E. SHUBERT

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: Shtefania2014@gmail.com

The article discusses the role of judicial practice in legislative drafting activities, judicial precedent as a source of law, analyzes the problem of revealing legal gaps and contradictions in the current legislation. The author stresses the need for clarification of the term the “right to legislative initiative of the Constitutional Court and the Supreme Court of the Russian Federation on issues within their jurisdiction”, and proposes a mechanism for accounting court practice during consideration of draft laws. The author submits the proposal on the adoption of the Federal Law “On Regulatory Legal Acts in the Russian Federation”, which, in the author’s opinion, will permit to overcome legal conflicts between the law and other regulatory legal acts and will create a solid legal framework for law-making and lawenforcement processes, will contribute to the prevention of infringement of legality in the activities of state bodies, business entities and other organizations, and strengthening the guarantees for realization of citizens’ rights and legitimate interests. Besides, the author proposes to amend the State Duma Regulation by adding the provision that when introducing the draft law to the State Duma, the subject with the right of legislative initiative must submit the materials containing system analysis and judicial practice trends regarding the regulation of the draft law in question.

Keywords: judicial precedent, judicial practice, gaps in legislation, the right of legislative initiative.

DOI: 10.12737/18704

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Monograph Review: Contemporary Problems of Acquisition and Protection of the Rights of Civil Law Relations Participants (ed. by G. S. Demidova, T. P. Podshivalov. Moscow, 2015. 328 p.)  Pdf 16

A. V. KUDRYAVTSEVA

doctor of legal sciences, professor

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