Contents of issue # 6/2016

Social Coordinates and Identification of National Legal System  Pdf 16

N. V. SILCHENKO

doctor of legal sciences, professor
Belarusian State University
4, Nezavisimosti avenue, Minsk, Republic of Belarus, 220030
E-mail: silch1954@mail.ru

Selecting the direction of the national legal system development is a topical scientific and practical issue under the conditions of complex globalization processes and legal systems integration. The course of the national legal system development should be determined through the establishment of its social coordinates and subsequent identification. For this purpose, it is necessary to outline the place of the national legal system within a higher-level system - the system of social regulation - to isolate and characterize the types and elements of the system of social regulation, which can be considered as social coordinates of the national legal system. The issue is studied using dialectical, historical and structural-functional methods of scientific research. Social coordinates of national legal systems are the right-centrist, religious-moral and political-centrist types of social regulation, each of which consists of seven elements: 1) generating element (renewal and renovation) of social regulation - social practices; 2) program-target (ideological) element; 3) information-evaluative element; 4) regulatory element (regulatory system); 5) the element of individual regulation of public relations; 6) element responsible for the preservation and transmission of social regulation; 7) element responsible for the protection of social regulation system and for monitoring its status. The analysis of the identified types and elements of the system of social regulation suggests that the Belarusian legal system is within a coordinate system of political-centrist type and is developing towards the legal system of the East Slavic type.

Keywords: system of social regulation, social coordinates, types and elements of social regulation system, national legal system, identification and course of the national legal system development.

DOI: 10.12737/19760

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The French Roots of Russian Law: Historical Analysis  Pdf 16

M. V. ZAKHAROVA

associate member of the International Academy of Comparative Law, candidate of legal sciences
The Research Centre for Comparative Law of the Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: avis_777@mail.ru

In the article, the author carries out a historical analysis of the French law influence on the development of the Russian legal system. In this article, the author refers to the assessment of such influence at the level of the “spirit” and the “letter” of the law. In particular, “the spirit” of the French law penetrated into the Russian terrain due to close relationship maintained between France and Russia for a long period. One can observe direct dispersive influence of the French law on the evolution of the domestic system of justice at the level of the “letter” of the law in the process of drafting and implementation of the private and public law reforms. Summing up the results of the conducted research, the author, in general, positively evaluates the results of the open model of development of the Russian legal system, involving the use of foreign (particularly French) experience in the reconstruction of the national legal order, and concludes that in the context of the reforms, the Russian legislator should not maintain aloofness to global legal trends, but be part of the whole, without ceasing to be individual.

Keywords: law, system, influence, Russian, French, evolution.

DOI: 10.12737/19761

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Supporting of Nomination of Candidates: Historical Context, Problems and Seeking Their Solution  Pdf 16

V. A. CHEREPANOV

doctor of legal sciences, professor, honored lawyer of the Russian Federation
Stavropol State Agrarian University
12, Zootekhnicheskiy lane, Stavropol, Russia, 355017
E-mail: sigma45@yandex.ru

Three forms of supporting of nomination of candidates have developed in the process of establishment of the Russian electoral legislation (collection of electors’ signatures, results of previous elections, municipal filter) which in the author’s opinion do not always display such support and whose practical application gives rise to certain problems. In this regard, in the author’s opinion, such forms of support of nomination of candidates as results of previous elections and municipal filter should be eliminated from the Russian legislation. However, a threshold during registration of candidates is necessary, but only to prevent the candidates from abusing their ballot access and exclude those candidates who stand for the elections not to be elected, but for other personal purposes. Electoral pledge while preserving the signatures collection for those who can’t afford the electoral pledge might be an effective threshold for candidates who abuse their ballot access.

Keywords: supporting of nomination of candidates, collection of electors’ signatures, municipal filter, electoral pledge, results of previous elections, political party, refusal to register candidates.

DOI: 10.12737/19762

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Redistribution of Powers: Interrelation of Federal and Regional Regulation  Pdf 16

S. B. NANBA

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: const@izak.ru

The article investigates the conceptual foundations of local self-government in the Russian Federation. The article analyzes the current status of the legislation on local self-government. The author analyzes in retrospective the limits of participation of the Russian Federation’s constituent entities with regard to local government. A peculiar feature of local government is the expansion of the powers of public authorities of the constituent entities of the Russian Federation in regulating the issues of local self-government organization. The article analyzes the legal nature of the redistribution of powers, provides classification of the redistributed powers. The author studies the laws of the Russian Federation governing the redistribution of powers. The author reveals the tendency of the transfer to the regional level of powers, which traditionally deal with local matters. These include the powers to address issues of local importance in organizing funeral services and burial places, disposal and recycling of household and industrial waste, organizing of transport services, forest monitoring, land use planning, and others.

Keywords: local government, redistribution of powers, federal, regional, reform, a model, law, constituent entity.

DOI: 10.12737/19763

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The Role of the Judiciary and International Law in the Process of Secondary Constitutionalization in Russia  Pdf 16

M. V. SMIRNOVA, Ch. THORNHILL

M. V. Smirnova, candidate of legal sciences, LLM
The University of Manchester
Oxford Road, Manchester, Great Britain, M13 9PL
E-mail: maria.smirnova@manchester.ac.uk

Ch. Thornhill, professor
The University of Manchester
Oxford Road, Manchester, Great Britain, M13 9PL
E-mail: chris.thornhill@manchester.ac.uk

This article is part of the project “Sociology of the Transnational Constitution”, carried out at the University of Manchester under the supervision of Professor Christopher Thornhill. This project is a comparative study of the legislation, case law, social phenomena with the aim to determine the effect of international law in the ongoing process of constitution-building in various countries and, particularly, in Russia. Extensive empirical data collected during the course of the project, results in the formulation of the following three main hypotheses that are discussed in the paper. First, legal accountability of the state to the citizens in Russia is asymmetrically high in comparison with political accountability. Second, there is a clear understanding in Russia that the successful state building depends on the efficiency of the judiciary; to a certain extent, the judiciary becomes the subject, or the main driver of constitutional reforms rather than being their object. Third, targeted and strategic use of international law plays a key role in all elements of the process of secondary constitutionalization, that is, not only in implementation of the constitutional guarantee of human rights protection, but also in the construction of the necessary institutions.

Keywords: secondary constitutionalization, international law and the Russian legal system, international law and domestic legal systems, state-building, court system, the judiciary, legal accountability, political accountability.

DOI: 10.12737/19764

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Billholder Rights in the Reorganization of a Legal Entity  Pdf 16

A. V. GABOV

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: gabov@izak.ru

Reorganization of a legal entity entails significant risks for creditors. To reduce risks, the law (article 60 of the RF Сivil Сode) vests the lenders with special rights. When a legal entity makes the decision about its reorganization, the creditor has the right to demand early performance of obligations, and in case of impossibility of early performance - to require the termination of obligations and compensation for losses. The application of this general rule to the creditors, whose rights are based on the bill, faces a problem: the Regulation on bills and notes of 1937 (article 43) does not mention reorganization as grounds for early repayment of the bill. In the present paper, the author proves that the bill holders have the rights envisaged by article 60 of the RF Civil Сode. The author analyzes the problems in case of bill presentation for repayment.

Keywords: legal entity, reorganization, creditors' rights, a bill, early performance of obligations.

DOI: 10.12737/19765

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Modern Trends of Conflicts of Laws Regulation of Tort Liabilities: EU Regulation of 2007 “On the Law Applicable to Non-Contractual Obligations” (Rome II) and the Russian Legislation  Pdf 16

N. I. MARYSHEVA

doctor of legal sciences, 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: pil@izak.ru

The article is devoted to the conflict of laws regulation of torts under Rome II (Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 “On the law applicable to non-contractual obligations”) and under the Russian legislation. The analysis of the Rome II provisions and the relevant norms of the Civil Code of the Russian Federation (including significant changes made to the Code by the Federal Law of the Russian Federation, dated 30 September 2013) identifies current trends in the development of conflict of laws regulation of torts and the impact of the Rome II Regulation on the Russian legislation. The author notes that in the Russian legislation, as well as in Rome II, the operation of the basic conflict of laws rule is combined with the operation of special conflict of laws rules; the possibility to use the autonomy of the will of the parties in conflict of laws of torts is extended; the use of the principle of closer connection with the tort is allowed, though in a more restricted form than in Rome II. The author regards the whole complex of the conflict of laws rules on torts in the modern Russian legislation as the result of development towards softening of the basic conflict of laws rule aimed at the creation of a more flexible framework for conflict of laws regulation of torts. Here the provisions of the Rome II served as a sample in many ways.

Keywords: torts, non-contractual obligations, injurious action, compensation for damage, applicable law, conflict of laws regulation, private international law, Rome II Regulation, Russian legislation.

DOI: 10.12737/19766

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Development of Legal Coverage for National Innovation System of the Russian Federation  Pdf 16

V. A. PERKOVA

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

The transition to innovative economy has been one of the topical issues in recent decades in Russia. However, legal acts acknowledge the lack of development of the Russian national innovation system. The author of this article considers the economic category “the concept of national innovation systems”, which is now widely used in advanced countries for the development of innovative legal relationship and is analyzed by the economic science. The author notes that this concept has a number of advantages, and thus proposes to improve the regulatory framework of the Russian Federation on the basis of this concept. Despite the fact that there is no common approach to the definition of the national innovation system, the author concludes that the concept of the national innovation system, contained in the legislation of the Russian Federation has a number of significant shortcomings and can not be considered as satisfactory and requires prompt revision. The author reveals the existing problems in the legal base, that prevent the development of innovative legal relationship and offers proposals to be taken as a basis for preparation of draft legal acts in the sphere of innovative economy.

Keywords: innovative economy, national innovation system of Russia, the concept of national innovation systems, innovation, innovative legal relationship, development of innovative legislation, legal mechanism of innovation development.

DOI: 10.12737/19767

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Some Problems of Legal Regulation of Wages in the Russian Federation  Pdf 16

O. V. MOTSNAYA, L. A. CHIKANOVA

O. V. Motsnaya, 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: omotsnaya@gmail.com

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

The article covers the problems of legal regulation of wages. The authors analyze difficulties in the implementation of certain provisions of the Labour Code, dealing with the basic state guarantees in labor remuneration. In particular, the authors pay attention to the problem of raising of the minimum rate of labour payment to the subsistence level in the Russian Federation. Nowadays this rule of the Labour Code is not operating. Authors analyze the approach of the Russian Ministry of Labour to solving this problem. Special attention is paid to the establishment of the payroll schedule, because the Labour Code, determining the abovementioned schedule, does not set specific dates, proposing to resolve this issue in local regulations or in an individual employment contract. In addition, the authors present the analysis of the issues associated with limitation of deductions from the employee's salary by the employer, as well as the complexity of the interpretation of the term “calculation error” in the presence of which Part. 4 Art. 137 of the Labour Code allows for pay deduction or recovering of overpayments from an employee. At present, the Labour Code, using that term does not disclose its contents. Therefore, in practice, it is interpreted in different ways.

Keywords: wage, minimum wage, payroll schedule, average salary, pay deduction, remuneration following the results of the year, calculating error.

DOI: 10.12737/19768

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Settlement of Labour Disputes through Mediation: Current Status of Legislation, its Practical Application and Development Perspectives  Pdf 16

I. A. FILIPOVA

candidate of legal sciences
Lobachevsky State University of Nizhny Novgorod (National Research University)
23, Gagarin avenue, Nizhny Novgorod, Russia, 603950
E-mail: irinafilipova@yandex.ru

Russian legislation envisages the possibility of using mediation in labour disputes. At the same time, in practice mediation in labour disputes is rarely used. In legal literature, different reasons of this situation are identified: reluctance of the parties to pay for mediation, distrust of the mediator, absence of demand for mediation. It is important to understand that an employee is usually the initiator of a labour dispute. The author of this article believes that scarce application of mediation in the settlement of labour disputes lies in the high level of employees’ guarantees and rights in the Russian labor law and civil procedural law. First of all, the Labour Code provides plenitude of employee's rights. If the employer violates these rights, the employee can go to court; the court will require the employer to restore the employee’s violated rights. Secondly, the employee is exempt from payment of judicial expenses. Thirdly, the employee may apply to the State Labour Inspectorate and the Prosecutor's Office. Thus, the employee does not need the mediation procedure. It is more useful for employers, but employers have little knowledge about mediation. Foreign experience shows that for successful implementation of mediation in practice it is necessary to introduce the concept of mediation in labour legislation.

Keywords: mediation, mediator, labour disputes, workplace conflicts, labour law, employee, employer.

DOI: 10.12737/19769

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Legal Regime and Importance of Sovereign Wealth Funds of the Russian Federation  Pdf 16

N. A. POVETKINA

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: pna127@mail.ru

The article is devoted to the study of the legal regime of the sovereign wealth funds of the Russian Federation - the Reserve Fund and National Welfare Fund. The article reveals the role and importance of sovereign wealth funds for the implementation of efficient financial activity of the state and the achievement of socially significant results. The article studies the evolution of the development of the Russian legislation on sovereign wealth funds, funds’ specific characteristics and their attributes and functions, presents the actual currency structure of these funds. The author pays special attention to the specifics of managing sovereign funds. The author argues that the Sovereign Wealth Fund represents a portion of the Federal budget funds, established to ensure the state’s financial stability, managed by a special body and intended for the financial support of the execution of the state’s objectives and functions, in the event of risks and threats to the budget balance. The author emphasizes that the transformation of the main purpose of sovereign wealth funds - from “Fund of financial stability” under the crisis, to the Fund - “Protector of stability and prosperity” presents itself as rather promising.

Keywords: sovereign wealth funds, Reserve Fund, national welfare Fund, financial stability, budget balance, risk, role and significance of sovereign wealth funds, the Russian Federation.

DOI: 10.12737/19770

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Legal Principles of Family Taxation  Pdf 16

O. O. ZHURAVLEVA

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: ozhura@gmail.com

The article focuses on the tax legal basis for family policy realization in Russia. The subject of the research is the principles of family taxation, their definition and implementation in the domestic legislation. Russian tax legislation is based on individual taxation of physical persons’ income. Taxation depends on a family’s status only for tax residents of the RF. There are some deviations in the implementation of the principles of equality and fairness in the tax legislation, which deal with the double deduction and in some situations may cause the infringement of taxpayers’ rights. The comparative analysis of the national Russian tax legislation and the Agreement between EAEU (Eurasian Economic Union) countries shows that national family tax deduction is not applicable to all EAEU residents. In this article, the author also examines the EU experience in this sphere. On the basis of the study, the author concludes that the participation of the RF in EAEU requires harmonization of some tax legislation’s institutions for implementation of the principle of equality in family taxation.

Keywords: principles, tax, equality, fairness, certainty, family, marriage, child, taxable unit, EAEU (Eurasian Economic Union), EU (European Union).

DOI: 10.12737/19771

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Administrative Prejudice in Criminal Law: Law Enforcement Problems  Pdf 16

E. L. SIDORENKO

doctor 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: 12011979@list.ru

The author analyzes the problem of inclusion in the Russian criminal law of the institute of administrative prejudice. The paper comprises three blocks: assessment of the need to introduce rules on prejudice in the Criminal Code; the timing of bringing persons to administrative responsibility and consideration of private issues of classification of individual components. The aim of the study is to develop scientifically based and up-to-date recommendations for the application of criminal law to administrative prejudice. The author achieves the goal through solving specific problems associated with the beginning of the expiration of the period of limitation for bringing persons to administrative responsibility, revealing differences in understanding by administrative and criminal legal institutions of the concepts of duplicity and recurrence and others. The author proposes the solution of these problems through the use of private-scientific methods of analysis: comparative legal, formal-legal methods, content analysis, and others. The study of court decisions and doctrinal positions on the classification of acts containing administrative prejudice has allowed the author to formulate a number of conclusions regarding the inconsistency of legislative structures of some articles of the Criminal Code. In particular, the use of different approaches to determining the time for bringing a person to administrative responsibility, the absence in Art. 154 and Art. 180 of the Criminal Code of indication on the prejudicial character of the rules etc draw objections. The author pays particular attention to assessing the recurrence of administrative offences and transition of this concept to criminal law relations.

Keywords: administrative prejudice, criminal liability, prejudicial rules, differentiation of responsibility, individualization of punishment, bringing to administrative responsibility, recurrence, duplicity, ruling in a case on an administrative offense, period of limitation for the institution of administrative proceedings.

DOI: 10.12737/19772

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Taking into Account Perpetrator’s Personality and Circumstances Mitigating or Aggravating the Punishment, as One of the Criteria of Fair Punishment  Pdf 16

E. G. SHKREDOVA

candidate of legal sciences, associate professor
Smolensk University for Humanities
2, Gertsen st., Smolensk, Russia, 214014
E-mail: evashkredova@mail.ru

The article is devoted to the analysis of the general principles, which are most frequently taken into account in infliction of penalty: perpetrator’s personality and the circumstances mitigating or aggravating the punishment. In particular, the author notes that negative personality characteristics, which do not manifest themselves in the criminal conduct and which do not give evidence of the social danger should not be taken into account in sentencing. The author examines which characteristics of the individual offender must be considered in sentencing. The author attends to errors arising from the use of the circumstances in question and resulting in the violation of the principle of justice. The main reasons for these errors are inattention of judges (with regard to non-recognition of a number of circumstances as mitigating or aggravating) and the imperfection of the law (in the wording of some circumstances). In conclusion, the author arrives at the idea about the necessity of formalization of the influence of aggravating and mitigating circumstances on punishment.

Keywords: justice, sentencing, perpetrator’s personality, circumstances mitigating or aggravating the punishment.

DOI: 10.12737/19773

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Growth Dynamics of the System of Law in Modern Regulatory Interpretation (Book Review: D. E. Petrov. Differentiation and Integration of Structural Units in the System of Russian Law. Ed. by I. N. Senyakin. Saratov, 2015. 472 pp.)  Pdf 16

T. N. RADKO, A. A. GOLOVINA

T. N. Radko, doctor of legal sciences, professor, honored lawyer of the Russian Federation

A. A. Golovina, candidate of legal sciences

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The Impact of E. V. Vaskovskiy’s Ideas on Modern Institutes of Review of Civil Court Rulings  Pdf 16

R. V. SHAKIRYANOV

candidane of legal sciences
The Supreme Court of the Republic of Tatarstan
72/2, Pushkin st., Kazan, Russia, 420015
E-mail: vs.tat@sudrf.ru

The article reveals the impact of the ideas of E. V. Vaskovskiy (1866-1942), the classic author of the Russian civil law and process, on modern institutes of review of civil court rulings in the Russian Federation. The article points out at the topicality of the scientist’s views on such fundamental principles of a civil process as equality of participants, oral and written proceedings, the principle of two instances in modern interpretation of the civil jurisprudence.

Keywords: E. V. Vaskovskiy, appeals instance, review of cases, civil process principles, oral and written proceedings, panel hearing and sitting of a single judge, the principle of two instances.

DOI: 10.12737/19775

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