Contents of issue # 7/2016

Social Justice in Constitutional Law  Pdf 16

V. E. CHIRKIN

doctor of legal sciences, professor, honored scientist of the Russian Federation, honored lawyer of the Russian Federation
The Institute of State and Law of the Russian Academy of Sciences
10, Znamenka st., Moscow, Russia, 119019
E-mail: vechirkin@yandex.ru

Social justice is a social element of the universal human value of justice, associated with socialist teachings (not only Marxism). This word combination is increasingly becoming a principle of law and, in general, a principle of a democratic and socially-oriented society of our time. In Marxism-Leninism that notion had a class character. Now the principle of social justice, or certain elements of it (without the word “principle”) are enshrined in modern constitutions (Brazil, Nepal, Poland, etc.), including the Russian one, where it is expressed less clearly than in some other constitutions. Nowadays, social justice becomes one of the most important provisions of the modern constitutional law. In three major global systems of modern law - Muslim, liberal semi-social capitalist and totalitarian socialist, the content of that principle, its indicators are not identical and sometimes even antagonistic. The article compares the content and legal indicators of this principle, the practice in Russia and other countries. Among such indicators the author considers monetary value of the consumer goods basket, the minimum monthly wage, differences in income of population groups, pension coverage, etc. The article contains comparative figures, related to these indicators, for different countries and Russia.

Keywords: principle of social justice in law, elements and indicators of the principle of social justice in law, legislation and practice in Russia and other countries.

DOI: 10.12737/20141

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Constitutional Framework of Wages and Social Insurance in Russia  Pdf 16

N. A. ABUZYAROVA

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: abuzyar2013@yandex.ru

In accordance with the author's intention, and in accordance with the constitutional framework, the article analyzes the wages and social insurance in Russia, unjustified super differentiation in wages, which excludes financial participation of low-income workers in the compulsory social insurance, who should be included in the system of compulsory social insurance without any conditions and restrictions. The author analyzes the state of wages, the necessity of state regulation of wages, the basic state guarantee on wages - minimum wages and salaries in Russia, with the aim to determine the conceptual basis for legal regulation of the wages in Russia in the interests of its population, in particular, it is argued that consumer demand is the main and only engine of the market economy and it has to be moderately in advance of the production capabilities. The author draws the attention to the use of state and contractual regulation of labour, as it is objectively necessary and socially justified if public and private regulation of labor relations in the sphere of remuneration are correctly interrelated. The main purpose of contractual regulation of remuneration should be the improvement of the situation of workers on the basis of the agreement between the parties to social partnership. For its part, the state should not interfere with the balance and supply of labour in the labour market, the formation of a natural price for labour. According to the author, it is necessary to constitutionalize the concepts of “decent work” and “decent wages”, “compulsory social insurance”. “Decent work” and “decent wage” should be recognized at the constitutional level as the principles of work organization.

Keywords: discrimination, fair wages, decent work, voluntary social insurance, low cost of manpower, the mechanism of legal regulation, the minimum wage, mandatory social insurance, pension liabilities, insurance amount, superdifferentiated wage, subsistence minimum, wage, actual wage, the price of labor.

DOI: 10.12737/20142

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Topical Issues of Legal Status of Election Commissions  Pdf 16

N. Yu. TOURISHCHEVA

candidate of legal sciences, associate professor
Kuban State University
149, Stavropolskaya st., Krasnodar, Russia, 350040
E-mail: dom0023@mil.ru

The author analyzes changes to Federal electoral laws that set the procedure for the formation, legal status, competence and the correlation of the basic elements of the system of electoral commissions operating in the Russian Federation. Based on the analysis of the regional legislation, the author considers the diversity of legal approaches in the design of the system of election commissions of the subjects of the Russian Federation. The author analyzes the problematic issues of mutual confer of powers of election commissions, the proposed optimal solutions taking into account the obligatory use of automation means sets of the State automated system of the Russian Federation “Vybory”. The author focuses attention on the need to ensure equal representation of parties in election commissions.

Keywords: elections, the system of electoral commissions, professionalism, independence, authority, Commission members, party representation, state authority, public authority.

DOI: 10.12737/20143

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The Legal Nature of Purposes and Principles of Federal Parliamentary Control  Pdf 16

N. V. PETUKHOVA

Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: maru-natalya@yandex.ru

The aim of this Article is to analyze purposes and principles of federal parliamentary control, its comprehensive interrelation and regulatory impact on public relations. In this Article the author considers problems associated with the achievement of purposes and implementation of principles for the control activity in the modern era of development of popular representation in Russia. Essentially, solution to such problems lies in eliminating the formalist approach to the principle of separation of powers and limits of parliamentary control. The author comes to the conclusion that determination of purposes and principles, preparation of the list of parliamentary control forms is just the beginning of a long evolution path. Conceptual improvement of the content of forms of parliamentary control will become possible only under the comprehensive revision of the order of formation and organization of the activity of the Federal Assembly of the Russian Federation. Development of parliamentary control in the Russian Federation requires a set of legislative solutions, based on constitutionally relevant purposes and principles, which will ensure real democracy of the popular representation in the Russian Federation, necessary for the formation of a law-bound state.

Keywords: parliament, parliamentary control, separation of powers, legitimacy, human rights, legal monitoring.

DOI: 10.12737/20144

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Problems of the Status of Private Educational Institutions in the Light of the Reform of the Legislation on Proprietary Rights  Pdf 16

N. V. KOZLOVA

doctor of legal sciences
Lomonosov Moscow State University
1, Leninskie gory, Moscow, Russia, 119991
E-mail: civil@law.msu.ru

In the light of the reform of the legislation on proprietary rights and improvement of the provisions on legal entities, a question arises on the necessity to preserve, in the Russian law and order, the structure of private institutions based on the right of operational management. The problem is becoming relevant because this form is widely used for the creation of private educational institutions (schools, higher educational institutions, etc.), and any reforms in this area will affect the customers, the contractors and the consumers of the educational services. The article considers the notion, the significance and the place occupied by private institutions within the system of legal entities according to the Russian civil law, both from the viewpoint of trends of development of civil law and the legal stance of judicial authorities and from the viewpoint of traditions of the Russian science of private law. The author pays special attention to the analysis of the legal nature, structure and scope of application of the right of operational management in proprietary relations. The author substantiates that during the reforming of the legislation on proprietary rights, only governmental (municipal) enterprises and institutions should remain the subjects of the right of operational management. The author analyzes the topical issues of legal bonds between founders in case of a creation of a private institution by several persons, as well as the topical issues of legal bonds between the institution and its founders.

Keywords: limited proprietary right, operational management, private institution, legal entity.

DOI: 10.12737/20145

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State Organizations as Subjects of Corporate Relations: on the Possibility of Participation in Corporate Relations of Unitary Legal Entities  Pdf 16

O. V. GUTNIKOV

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: oleg_gutnikov@mail.ru

The article raises the question on possible participation of the State and legal persons established by it (public enterprises and institutions) in corporate relations. The article criticizes the approach, dominant both in the doctrine and in the legislation, that corporate relations appear only in corporate organizations. This view is based on an incorrect identification of corporate relations with the relations of participation (membership), while the participation (membership) is not a sign of corporate relations, but happens in many civil and other relations with a variety of persons. The conclusion is that it is necessary to recognize corporate relationship, related to management of any legal entity. The author proves that the right to manage a legal entity has the same nature for both corporate organizations and for unitary state organizations.

Keywords: legal entities, corporate organizations, unitary legal entities, state organizations, corporate relations, the right to manage a legal entity, participation (membership), limited property rights of business and operative management right.

DOI: 10.12737/20146

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Energy as Object of Contractual Relations: on the Issue about the Concept and Legal Nature  Pdf 16

O. V. SHVEDKOVA

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: venkom@izak.ru

The article is devoted to one of the discussion topics of modern law - the legal nature of energy as the object of law and contractual relations. Definition of the legal nature and the concept of any object of law is of primary importance from the point of view of classifying it among the existing groups of objects of law. Practical meaning of such classification involves establishing for each group of a legal regime, primarily determining the order of vesting rights for them and conditions of their circulability. The article analyzes doctrinal positions of scientists, who view energy as special property, on which the right of ownership arises, as a “bodiless” thing, etc. Taking into account the nature of energy as a phenomenon, the author comes to the conclusion about its nonmaterial nature, which allows making the assumption about impossibility to classify it either as a thing or as property. All the more so, classifying energy per se to an independent and only object of an agreement gives rise to doubts. As a result, by analogy with the recognized legal regime of intellectual property objects, the article proposes to vest energy with “indirect” circulability, and to understand the term “energy” as a special nonmaterial object of law, possessing economic value, in relation to which the contracting parties acquire corresponding proprietary rights.

Keywords: energy, object of an agreement, legal nature of energy, the concept of energy, property, bodiless property, energy supply agreement.

DOI: 10.12737/20147

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Agreement of Housing Construction Investment and Agreement of Participation in Shared Construction: the Relationship Between the Concepts  Pdf 16

А. А. ZHURAVLEVA

candidate of legal sciences
Law Institute of North-Caucasus Federal University
1А, Pushkin st., Stavropol, Russia, 355000 

E-mail: ann5128@yandex.ru

The article analyzes the legal nature of specific types of investment agreements in the construction sphere. The article contains the conclusion that all agreements of housing construction investment can be divided into two large groups: agreements of participation in shared construction, regulated by Federal Law dated December 30, 2004, No. 214-FZ “On Participation in Shared Construction of apartment houses and other real estate objects and about modification of some legal acts of the Russian Federation” and other investment agreements, which do not come within the purview of the above mentioned law. Participants of the latter group of agreements are under the protection of the Law of the Russian Federation “On Protection of Consumers' Rights”, general provisions of the Civil Code of the Russian Federation on agreement, fulfillment of obligations and invalidity of legal transactions, provisions of the Special Part of the RF CC on the futures contracts, construction project contracts and others, and also framework regulation of the Federal Law “On Investment Activity in the Russian Federation in the form of capital investments”. The author provides analysis of similarities and differences of the indicated agreements.

Keywords: investment contract, contract of participation in shared construction, housing construction investment, types of investment contracts in housing construction.

DOI: 10.12737/20148

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Preconditions of the Criminal World Origins in Russia  Pdf 16

N. V. AKIMOVA

candidate of legal sciences, associate professor
All-Russian State University of Justice
2, Azovskaya st., Moscow, Russia, 117638
E-mail: a.n.w@mail.ru

The article examines the emergence and formation of the criminal world in the Russian society. The author believes that social, economic, political and other processes taking place in the society in the process of its development will inevitably affect the criminal world evolution. The author analyzes the concept “criminal world”. The author draws the conclusion that nowadays in Russia the structure of the criminal world in social life is rather developed; it can determine the nature of social development, trigger aggravation of social crises, influence economic, political, cultural, moral-legal and other processes in social environment. The sources of its formation and development are: professional general and economic crime, and also corrupt representatives of the state establishment, who are directly or indirectly associated with shadow income and privatization procedures.

Keywords: criminal world, social relations, society, social environment, criminality, shadow economy, illegal production, criminalization, corruption.

DOI: 10.12737/20149

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The Subject of Crime in Criminal Law: Problems and Contradictions  Pdf 16

V. V. KHILYUTA

candidate of legal sciences, associate professor
Yanka Kupala State University of Grodno
3/1, Dovatora lane, Grodno, Republic of Belarus, 230000
Е-mail: tajna@tut.by

The article deals with the problem of understanding the subject of crime in the science of criminal law. The author analyzes different approaches to defining the content of the subject of crime, its location in the structure of the offense and the delimitation from the object of crime. The author raises the question about the development of an independent doctrine on the subject of crime as one of the elements of the offense. It is noted that in modern conditions material or non-material benefits (values) that give rise to public relations, through the manipulation with which the guilty person carries out criminal encroachment, should be considered the subject of a crime. Both material benefits (things, money, and property) and non-material benefits (property and liability rights, information, honor, dignity, life, health, activity (actions), etc.), which are exposed to criminal manipulation, can be the subject of a crime.

Keywords: the subject of crime, the object of crime, element of the offense, public relations, benefit.

DOI: 10.12737/20150

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To the Question about Terminology Optimization for the Theory of Public Administration and Administrative Law in the Context of Understanding Efficient, Good, Reasonable Public Governance  Pdf 16

Yu. E. AVRUTIN

doctor of legal sciences, professor, honored scientist of the Russian Federation, honored lawyer of the Russian Federation
St. Petersburg University of the Ministry of Internal Affairs of the Russian Federation
1, Letchik Pilyutov st., St. Petersburg, Russia, 198206
E-mail: axx2006@mail.ru

The article analyzes the approaches of the theory of public management and administrative law to such concepts as public governance, public administration and regulation, proves inexpediency of the use of the wide approach to understanding public administration; analyzes approaches to understanding control functions and managerial functions, suggests the author’s definition of the concept of “function” and “control function”, proves the expediency of using such concepts as functions-tasks and functions-operations. The author pays special attention to problematic issues of understanding governance as efficient, good, proper, reasonable governance, reveals general and specific content of these concepts, proves that they are conventional concepts and serve as qualitative characteristics of public governance and are of a doctrinal political-legal and axiological nature. As doctrinal concepts, they can influence modernization of the administrative law paradigm as a science, academic discipline, and a branch of legislation. The use of these concepts for instrumental purposes can help to specify criteria and indices, applied during the assessment of the status of public governance, actions and decisions of public administration agencies and functionaries, to the level of common sense, reflecting social feeling of citizens on the way to overcome estrangement between power and population, which is traditional for Russia.

Keywords: public governance, public administration, legal regulation, control functions, managerial functions, administration, proper, good and efficient governance.

DOI: 10.12737/20151

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Category of Market Price in Modern Tax Law  Pdf 16

I. A. KHAVANOVA

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: fin@izak.ru

The article is devoted to transfer pricing rules with particular reference to unresolved problems. Its purpose is to outline the complex issue of transfer pricing. The author examines the difference between the concepts of “market price” and price, determined according to the “arm’s length principle”, discusses the basic rules of taxation, principles of determining the price of goods, work or services for taxation purposes. To ensure the correct application of the separate entity approach, countries have adopted the arm's length principle. This article analyzes initiatives on taxation in the area of corporate taxation (OECD Action Plan on Base Erosion and Profit Shifting (BEPS), Final Reports “Aligning Transfer Pricing Outcomes with Value Creation”). The author points out that the level of control (direct or indirect) in determining interdependence between persons, has its own specific features in different states. The reason behind it is that the problem of transfer pricing does not always arise, but only when subjects establish specific relations. The article characterizes the regulatory changes and developments in Russia.

Keywords: tax law, market price, transfer price, controlled transactions, arm’s length principle.

DOI: 10.12737/20152

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Control Activities of the Russian State over Information Relations on the Internet  Pdf 16

K. V. STRUKOV

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: editor2@izak.ru

The article considers some problems of carrying out control activities by the Russian State over information relations on the Internet. The author notes that the subject mater of the bitter dispute between supporters and detractors of the necessity of enhancement of state participation in information relations, arising on the Internet, is the issues, related to admissible limits of state control. Any strengthening of state control over information relations, arising on the Internet, as well as the necessary introduction of any other restrictive measures is only admissible after the thorough analysis of the proposed novations, monitoring and arranging of public opinion. In his research the author touches upon such problematic aspects as the absence of a unified concept of state control in Russia; difficulties in detecting law-breakers and bringing them to responsibility for law infringements, committed on the Internet, as well as revealing such infringements; the use of the Internet for the purposes of prevention of infringements and legal education of people.

Keywords: Internet, cyberspace, information relations, legal regulation, control function.

DOI: 10.12737/20153

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The Improvement of Russian Legislation on Disciplinary Responsibility during State Civil Service  Pdf 16

L. A. LOMAKINA

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: lomakina_la@mail.ru

The article considers the Russian legislation on disciplinary responsibility during state civil service. The purpose of the article is to analyze the legislation on disciplinary responsibility during the civil service career and prospects of its development in the context of overcoming corruption, impact of the labor legislation on the formation of legal regulation of state service career taking into account its peculiar features. The article analyzes the list of minor offenses which can entail such disciplinary punishment as dismissal and its relation with the list of grounds for employment contract cancellation at the initiative of the employer's representative, both for numerous non-execution, and for a single gross violation of the official duties by a civil servant. The author provides the analysis of the rules regulating types of punishments for non-compliance with the requirements on prevention of conflicts of interests.

Keywords: disciplinary responsibility of a civil servant, disciplinary sanction, dismissal in connection with the loss of confidence, job rules, official schedule of the public body, functional audit check.

DOI: 10.12737/20154

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Forms and Methods of Protection of Citizens’ Rights in Social Support Sphere  Pdf 16

A. Yu. GUSEV

The Rostov District Court of Yaroslavl Region
1, Bebel lane, Rostov, Russia, 152151
E-mail: rostovsky@inbox.ru

The article considers the categories “protection of the right to social support” and “social protection”, which, in the author’s opinion, should be differentiated. The author presents the approach to understanding protection of any right as a variant of realization of the right in a very specific form. The author analyzes forms of protection of the right to social support (jurisdictional (legal) form is presented as activities of the right protection bodies, envisaged by the statute, and interests, protected by the statute, and non-jurisdictional (non-legal) form - as application of measures by an authorized subject independently, without applying to any body); their typical methods, applied as part of a civil process through judicial recourse, and also through self-protection of the right to social support. The author considers variants of protection of citizens’ rights by trade unions, and through applying to the commission on labor disputes. The author notes discrepancies in covering the methods of right protection by the rules of the civil and labor legislation.

Keywords: forms and methods of protection, rights’ protection mechanisms, self-protection, trade union control, the commission on labor disputes.

DOI: 10.12737/20155

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Combating Corruption in the Eurasian Economic Union Member States: International Legal and Domestic Regulation    Pdf 16

A. N. MOROZOV

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: ccla1@izak.ru

This scientific article explores the issues of combating corruption in the member States of the Eurasian Economic Union on the basis of international legal and domestic regulation. The author conducts the analysis of the international legal framework of the Eurasian Economic Union, the specifics of law of the Eurasian Economic Union and peculiarities of enactments, adopted under its auspices. Special attention is paid to the development of the Eurasian anti-corruption strategy as a special international legal anti-corruption act, which could be adopted within the framework of the Eurasian Economic Union. The author examines the experience of the European Union, which is of interest for the development of anti-corruption cooperation in the Eurasian Economic Union. The author analyzes anti-corruption legislation of member States of the Eurasian Economic Union. The author also analyzes the international anti-corruption instruments in force at the universal and regional level, as well as the experience of the Commonwealth of Independent States in the sphere of anti-corruption cooperation and outlines proposals for its development and improvement.

Keywords: Eurasian Economic Union, corruption, international agreements, legislation, international organization, Eurasian anti-corruption strategy, European Union, Commonwealth of Independent States.

DOI: 10.12737/20156

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Genocide as International Crime: Corpus Delicti Analysis  Pdf 16

G. A. RUSANOV

candidate of legal sciences
University of Turin
9, Via Verdi, Turin, Italy
E-mail: georgiyrus@yandex.ru

This paper is devoted to the issues of international criminal responsibility for the crime of genocide. The author explores the corpus delicti of it and draws attention to the problem of bringing the guilty persons to international responsibility. The author examines in detail individual acts constituting the corpus delicti: the murder of members of any national, ethnic, racial or religious group, causing serious bodily or mental harm to the members of such group, deliberate creation of such living conditions which are meant for total or partial physical destruction of the group; imposing measures intended to prevent childbirth within the group; forcible transfer of children from one human group to another. Special attention is paid to the problem of describing the individual elements of an act. The author supports all theoretical conclusions by examples from the practice of the International Criminal Court.

Keywords: international crime, genocide, corpus delicti, actus reus, mens rea.

DOI: 10.12737/20157

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Judicial Discretion: Theory and Practice of Regional Applications  Pdf 16

T. M. LOPATINA

doctor of legal sciences
Smolensk State University
4, Przhevalskiy st., Smolensk, Russia, 214000
E-mail: lopatina1501@mail.ru

The article presents the author's point of view on the problematic issues of judicial discretion within the framework of implementation of the principle of justice with regard to law enforcement practice of courts of General jurisdiction. The goal of the study is the actualization of theoretical provisions and making recommendations for improving the effectiveness of fair practice purposes of criminal punishment. The author considers judicial discretion from the standpoint of the relativity of freedom of choice in judicial decision making, which is conditional and limited, as it is done within the suggested limits of the criminal statute, or is done within the limits, directly or indirectly determined by the science of criminal law, or jurisprudence, but at the same time all variants are equally legitimate and justified. The article provides the results of a regional study of the practice of criminal sentencing with the use of systemic-structural, concrete sociological, statistical methods of scientific cognition, and comparative analysis, analysis of legislation and judicial practice.

Keywords: the principle of justice, the concept of a fair trial, punishment, judicial discretion, the identity of the defendant.

DOI: 10.12737/20158

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Law Enforcement as “a Weak Spot” in Implementation of the State Environmental Policy (Review of the monograph: Bogolyubov S. А. Implementation of Environment Policy through Law. Мoscow, 2015. 320 p.)  Pdf 16

М. I. VASILIEVA

Law as the Most Important Resource of Industrial Growth  Pdf 16

Yu. A. TIKHOMIROV, P. P. KABYTOV

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