Contents of issue # 8/2016

Venice Commission as Subject of National Law Interpretation  Pdf 16

T. Y. KHABRIEVA

director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, member of the European Commission for Democracy through Law (Venice Commission of the Council of Europe), vice-president of Russian Academy of Sciences, academician of Russian Academy of Sciences, associate member of the International Academy of Comparative Law, doctor of legal sciences, professor, honored lawyer of the Russian Federation, honored lawyer of the Republic of Tatarstan
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office@izak.ru

The article reveals specific characteristics of the international legal status of the Venice Commission of the Council of Europe, which allows to understand its purpose and provide legal assessment of various aspects of its activities. On the basis of the analysis of documents adopted by the Commission, their types and content, the author considers peculiarities of interpretation by the Commission of national legal rules. Interpretation of the national law by the Commission, which the author categorizes as a kind of international interpretation, is carried out through the lens of multifunctional legal standards of the Council of Europe. It serves the purpose of improving national legislation, consolidation of approaches on the part of the member states to the Commission and international organizations towards understanding of the contents of the European standards and generation of new legal concepts and categories. The author identifies typical and non-typical acts of interpretation of law by the Commission, establishes their relation with the types of acts of interpretation known in the theory of law. The author concludes the research by stating that the Venice Commission is a new subject of national law interpretation, and its law-interpreting activity is a phenomenon in law, the nature of which requires a separate study.

Keywords: the Venice Commission, partial and enlarged agreements of the Council of Europe, incorporation and non-corporate documents of the Commission, law interpretation, international interpretation of national law, typical and non-typical acts of interpretation, consolidation of approaches towards the content of European legal standards, generation of legal concepts and categories.

DOI: 10.12737/20899

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Interpretation of Law: Classics, Modern and Postmodern  Pdf 16

V. V. LAZAREV

doctor of legal sciences, professor
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
22/24, Bolshoy Kharitonievskiy lane, Moscow, Russia, 107078
E-mail: Lazarev@izak.ru

The article expresses the views on the controversial attitudes relating to the interpretation of law at different stages of development of science in general and legal science in particular. Tracing the respective changes, the author comes to the conclusion that classics was based on the rule of law; art Nouveau was aimed to destroy the rule of law; postmodern - on departure from reality. In the postmodern world-both legislator, and his will - are all the essence of fiction. Classical science was concerned to establish the objective truth; modernism believes all truth is relative; the postmodern - denies the establishment of the truth. The author suggests the answer to the question as to where the perspectives of the science lie should be sought in the realm of conjunction of natural and humanitarian sciences. And in the context of such cognitive-information theory the author draws the attention to importance of modern scientific trend-memetics and the use thereof in the field of jurisprudence. As a subtype of memetics the author suggests to introduce the notion of lawmemetics to be employed to study the two types of the mems: the entity of legal reality and the entity of psychological reality. The substantial aspect memetics is called to be the resumption and poliform-like repetition of what was originally coded as the mem information and was designed to secure its values as applied to the new circumstances of place and time.

Keywords: ascertainment of law, explanation of law, cognition of law, methodology, paradigms classical and postclassical science, information exchanges, memetics.

DOI: 10.12737/20900

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Interpretation of Law in the Context of Various Methods of Law Cognition  Pdf 16

A. V. KORNEV

doctor of legal sciences, professor
Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
Е-mail: kornev_av@rambler.ru

The article focuses on the evolution in views on law and interpretation thereof in the national juridical science. The authors mentions a number schools of law which were dominant in Russia. Specifically, state-organizational(state-imperative) theory understood law to be what the state thought it was to be. The modern Russian doctrine has called such approach as positivist, and also as normative as the case can be. G. F. Scherschenevitch was one of the most prominent advocate thereof; psychological school of law (L. I. Petrazhitsky and others) qualified law to be a combination of imperative-attributive emotional feelings which through psychological interaction of members of members of a certain group become the feelings of common nature and become materialized in the form of legal norms; sociological theory (or else- sociological positivism) (S. A. Muromtsev, B. A. Kistyakovsky) understood law to be a combination of legal prescriptions which are materialized in reality and within which such legal norms are being shaped and crystallized. The author believes that the above-mentioned school of natural law had no independent status among other legal theories.

Keywords: understanding of law, interpretation of law, types of legal understanding, right, law.

DOI: 10.12737/20901

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Concretization and Interpretation of Law as the Creative Content of Judicial Practice  Pdf 16

N. A. VLASENKO, M. V. ZALOILO

N. A. Vlasenko, 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: theory@izak.ru

M. V. Zaloilo, 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: theory3@izak.ru

The article explains the idea of interpretation and concretization of law as the creative content of judicial practice. It contains a review of the main positions of national legal science on the content, forms and significance of judicial practice. The author deals with the issues relating to possibilities of recognition of the court practice as an independent source of law. The legal nature of the judicial act contains the assessment of the subject of it’s regulatory novelty. Subject to analysis is the impact of judicial practice on law-making in modern conditions in the form of drafting in the process of interpretation and concretization of law an abstract rules, which may obtain further its legislative development in the rules of law. The idea of the creative content of judicial practice is based on the legal uncertainty which determines the creative nature of interpretation and concretization of law by judicial organs and the regulatory character of the results of interpretation and concretization of law. The process of interpretation of law is presented sequentially in three stages: understanding, clarification and development. The creative nature is inherent in the results of the judicial practice which generated at the stage of development of rules of law. The authors examines concretization of law which is performed by judicial organs (concretization of rules of law of general character; concretization of concepts contained in rule of law (terminological enforcement concretization); concretization of rules of law in the presence of gaps in normative legal acts). The analysis of the creative character of interpretation and concretization of rules of law in judicial practice emphasizes general and special characteristics thereof.

Keywords: law, rule of law, source of law, concretization of law, interpretation of law, law enforcement, evolution of law, development of law, court, judicial practice.

DOI: 10.12737/20902

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E. V. Vaskovsky and Contemporary Civilistic Methodology  Pdf 16

G. A. GADZHIEV

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

In the present paper a contribution of Russian scholar E. V. Vaskovsky to the development of the doctrine of legal science methodology is considered. It is demonstrated, how a theoretical and dogmatic approach to jurisprudence was supplemented over time by economic approach, focused on assessment of efficiency of legal norm. This combination or «aggregation» of scientific methods of law and economics has led to a new understanding of normativity in the regulation of social relations. The author concludes that the teachings of E. V. Vaskovsky on the juridical method, as well as his contribution to the issue of interpretation of the rules of law and filing the gaps in law - are still actual today and furthermore have become ever more topical.

Keywords: method of legal science, law and economics, effectiveness of legal norms.

DOI: 10.12737/20903

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E. V. Vaskovsky as Representative of Legal Positivism in Domestic Legal Science  Pdf 16

S. V. LIPEN

doctor of legal sciences
Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: lipen.sia@gmail.com

The article presents the views of E. V. Vaskovsky (1866-1942) on the problem of a ratio of legality and a discretion in law-implementing, as well as other problems of legal science. The scholar was a consistent advocate of legality, consistent supporter of one of the main ideas of legal positivism. Other ideas relating to this scientific trend were reflected in the works of E. V. Vaskovsky. These ideas are: the limitation of the subject matter of the formal-dogmatic legal science, understanding of law as a set of compulsory norms emanating from public authorities, the basic meaning of a normative legal act in the system of sources of law, critical attitude to new theories of interpretation of law, limits of judicial discretion, etc. The value of views of E. V. Vaskovsky in the development of legal positivism must be taken into account and employed by scientific researches and used in training courses on the history of political and legal doctrines.

Keywords: legal positivism, law-implementing, legality, discretion.

DOI: 10.12737/20904

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Judicial Interpretation of the Law  Pdf 16

P. A. GUK

doctor of legal sciences, associate professor
Penza State University
40, Krasnay st., Penza, Russia, 440026
E-mail: pravosudiepenza@mail.ru

The article deals with the interpretation of the law by the judiciary. Normative legal acts in the process of their application can not always regulate social relations, resulting in the uncertainty of their application. Judicial interpretation of the law by the highest judicial authorities provides necessary assistance to the law enforcement authority having, which gives certainty and unity of their application to specific legal disputes. Judicial interpretation in the enforcement process remains valid at the present time that requires the theoretical and practical research. Theory of judicial interpretation of the law will tend to develop skills to understand the specifics of formation and application of acts of judicial interpretation.

Keywords: enforcement, judicial interpretation of the law, the highest judicial authority, official interpretation, the unity of the judicial practice, the theory of judicial interpretation, the acts of judicial interpretation.

DOI: 10.12737/20905

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Contemporary Issues of Law Interpretation  Pdf 16

M. V. ZALOILO, Yu. E. IBRAGIMOVA

Equal to the Constitution: the Sources of Law of Highest Legal Force in the Russian Federation  Pdf 16

M. V. PRESNYAKOV

doctor of legal sciences
Stolypin Volga Region Institute of Administration — the branch of the Russian Presidential Academy
of National Economy and Public Administration under the President of the Russian Federation
23/25, Sobornaya st., Saratov, Russia, 410031
E-mail: presnykov1972@yandex.ru

In article the question of validity of the Constitution of the Russian Federation and some other sources of the right which can also possess the highest validity is considered. In particular the author comes to a conclusion that legal positions of the Constitutional Court of the Russian Federation possess the highest validity and in total with the constitutional provisions represent the actual Constitution. On the other hand, both laws on amendments to the Constitution, and the universally recognized norms of international law on the validity stand below constitutional precepts of law. Acts of the Constitutional Assembly of the Russian Federation may in future be qualified as having the highest judicial effect. Such acts may abolish or change any provision of the present Constitution. At the same time the universally recognized norms of international law and the laws of the Russian Federation regulating amendments to the Constitution of the Russian Federation as independent juridical acts and sources of constitutional law are inferior as compared with the constitutional legal norms.

Keywords: Constitution of the Russian Federation, validity, legal positions of the Constitutional Court, laws of the Russian Federation on amendments to the Constitution of the Russian Federation, Constitutional Assembly of the Russian Federation, universally recognized norms and principles of international law, international contracts, Convention on protection of the human rights and fundamental freedoms.

DOI: 10.12737/20906

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Public and Individual Interests in Electoral Rights of Russia: Legal Positions of the Constitutional Court of the Russian Federation  Pdf 16

A. A. MAKARTSEV

candidate of legal sciences, associate professor
Novosibirsk State University of Economics and Management
56, Lomonosov st., Novosibirsk, Russia, 630099
E-mail: makarzew@mail.ru

This article presents the analysis of decisions of the Constitutional Court of the Russian Federation on electoral rights, upon which the hierarchy of the individual and public interests that are realized in electoral relations rests. The author concludes that the balance of interests established by the Constitutional Court of the Russian Federation is not of a permanent nature. The form of expression and the content of coordination of interests of individuals and society can change depending bodies of constitutional justice to definition of a framework of the adjustable public relations. In case of discrepancy of interests of the state, society and individuals expediency of satisfaction and relevance of their implementation can differ depending on the given circumstances. The hierarchy of individual and public interests built by the Constitutional Court of the Russian Federation, on the one hand, is directed to guarantee subjective electoral rights and, on the other hand, to provide stability of the existing political system in Russia, reproduction and functioning of institutes of power. The absence of the official doctrine which would provide that public interests in the electoral relations represent themselves, complicates the mechanism of their realization, and reduces the opportunity given to subjects of legal relationship by the law to use certain social benefits.

Keywords: elections, electoral right, public interests, Constitutional Court of Russian Federation, pre-election campaign, interest, electoral democracy.

DOI: 10.12737/20907

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Some Aspects of Correlation between Definitions of Constitutional Delict and Crimе  Pdf 16

Yu. A. LIVADNAYA

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

The present article deals with the qualification of the offences problem in case of specific legal norms of constitutional and criminal law conjunction along with the place of constitutional delicts in contemporary system of offences. Having analyzed the situations relating to constitutional provisions in other civilized countries the author has identified common indicia for definition of constitutional delict and crime (social danger, wrongfulness, culpability and punishability). It is concluded that there is an established interrelation of these law violations conditioned that crime could be the cornerstone of constitutional delict. Author propose the criteria for separation of these definitions by reference to social danger level of above named offences together with special status of constitutional delict actor and fixed sequence of constitutional and criminal incurrence of liability for such person. In view of fact that constitutional delict presents the highest level of social danger as compared with crimes and other types of offences, the author suggests to adopt the approach according to which the structure of contemporary system of offences that covers constitutional delicts as a hierarchical subsystem should be based with regard to underlying constitutional delict (crime, administrative offence, disciplinary case or civil tort); crimes with regard to broad understanding of their wrongfulness and minor offences (or other types of offences).

Keywords: constitution, constitutional delict, crime, social danger, wrongfulness, culpability, punishability, system of offences.

DOI: 10.12737/20908

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Juridical Persons and Subjects of Public Law: in Legal Balance Search  Pdf 16

V. F. YAKOVLEV, E. V. TALAPINA

V. F. Yakovlev, associate member of the Russian Academy of Sciences, doctor of legal sciences, professor
10, Znamenka st., Moscow, Russia, 119019
E-mail: inform@igpran.ru

E. V. Talapina, doctor of legal sciences, doctor of law (France)
The Institute of State and Law of the Russian Academy of Sciences
10, Znamenka st., Moscow, Russia, 119019
E-mail: inform@igpran.ru

The joint position of civil and administrative law specialists concerning an opportunity and need to obtain by public law subjects of the juridical person status is presented in this article. Public entity is a civil law subject, but it is presented by its public bodies. Considering features of public authorities as juridical person, authors draw the conclusion about a secondary role of a civil status. The article suggests new classification of administrative law subjects for public and private subjects depending on their role in public administration. The category of the juridical person of public law could be useful to settle the problem of the state “double face” in private relations. At the same time the authors call attention to various and ambiguous prospects of the Russian legislation development in this concept should be employed. The authors have formulated the principle of correct adoption according to which traditional civil concepts have to be accepted by public law in their initial understanding, without distortions, and vice versa.

Keywords: juridical person, public authority, public law, civil law.

DOI: 10.12737/20909

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Energy Legislation in the General System of Business Law  Pdf 16

S. S. ZANKOVSKIY

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

The article considers the problems of energy legislation in the context of improving the legislation on entrepreneurship. In the judgment of the author the construction of the energy legislation is a possibility provided it is of a centrifugal nature with the general principles making the basis for such acts attempted to solve the outstanding problems. One of such principles which is to be legislatively enacted could be the principle of import substitution adopted to do away with dependence on foreign-made goods. The role of energy law can only be understood provided we have the relevant contemporary system of laws. This can be possibly achieved from the doctrinal point of view. The author analyses legal business regulation existing in the pre revolutionary and soviet period. It helps to understand better what is to borrowed from the experience of the past to be used to regulate said relationships. The author calls for necessity to issue the Code of Laws of the Russian Federation as the first step to make legislation systematized. The next step to be taken could be the adoption of comprehensive legal acts, say, Energy Code which could eventually make so-called legislation blocks. The latter could, in turn, serve the basis for so-called central legislative act to regulate business law.

Keywords: legislation, energy, government regulation, systematization, code of laws, business law.

DOI: 10.12737/20910

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Evasion of Law in Private International Law  Pdf 16

T. P. PODSHIVALOV

candidate of legal sciences, associate professor
South Ural State University (National Research University)
76, Lenin ave., Chelyabinsk, Russia, 454080
E-mail: podshivalovtp@gmail.com

The article is devoted to the definition of the conditions under which it is possible to apply the rules on evasion of law in civil relations complicated by a foreign element. It is possible to recognize evasion of law only by identification of characteristic features of this legal phenomenon in private international law. The author substantiates the idea that the dispute about the validity of imposing a ban on evasion of law in private international law doesn’t have political and legal importance: should not deny the theory of evasion of law, but to define the conditions under which it is possible to apply the norms of evasion of law. The problem is how to make the norms of evasion of law an effective means of suppression to disservice of an indefinite number of people, the protection of public policy. When imposing a ban on the evasion of law the most important is the question of the pending consequences when and where the acts of evasion of law will be revealed. The article deals with the question of identification the legal consequences of qualification of actions as done through evasion of law. Besides, the article attends to the response to “evasion of law” in the national legal systems.

Keywords: private international law, evasion of law, piercing the corporate veil, good-faith, abuse of right, super-mandatory rules, invalid transaction, offshore company.

DOI: 10.12737/20911

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Review on the Monograph: Legitimate Payment Instruments: Theoretical Study / I. I. Kucherov. Мoscow, 2016. 392 p.  Pdf 16

N. M. ARTEMOV

Effective Law Enforcement: Doctrine and Practice  Pdf 16

S. B. BALKHAEVA, O. I. SAKAEVA

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