Contents of issue # 9/2016

Problems of Judicial Protection of Social Rights of Citizens of the Russian Federation  Pdf 16

L. V. ANDRICHENKO

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: lvandr@mail.ru

The article defines the methods for the protection of social rights of citizens of the Russian Federation, the most effective of which is recognized to be judicial protection. Primarily, attention is focused on the practices of the Constitutional Court of the Russian Federation with regard to the constitutional norms and principles relating to the protection of social rights of the Russian citizens, including equality, justice, state guarantees of the rights and freedoms of individuals and citizens, state compensation for damages caused by unlawful acts committed by state and municipal authorities acting in their official capacity. The article contains the analysis of the role of constitutional courts of the Russian Federation with regard to the protection of social rights. The decisions thereof do not only allow assess the status of constitutional legality in various regions, but also offer guidance for legislative and law enforcement bodies of state power of subjects of the Russian Federation and local self-government. The author notes that a great number of cases relating to the protection of fundamental social rights in courts of general jurisdiction is indicative of inefficiencies in the field of social rights of citizens.

Keywords: social rights, judicial protection, the principle of equality, the principle of equity, public authorities, local governments, constitutional (charter) courts of the Russian Federation, the courts of general jurisdiction.

DOI: 10.12737/21214

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Trends in the Legislation of the Russian Federation in the Sphere of Regulated Procurements  Pdf 16

O. A. BELYAEVA

doctor of lеgal sciences
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: O.beliaeva@rambler.ru

The article contains the analysis of the Russian legislation on regulated purchases during the period starting the year 2012. It contains substantiated civil nature of purchasing relations, the circle of people whose purchasing activities are subordinated to the effects of legislation regulating the contractual system and to the Federal law “Of purchase of goods, works and services by certain types of legal entities”. The author traces the trends that are relevant to the development of legislation on purchasing practices. Specially outlined is the trend of extrapolation of the law when this law has no specific group of participants to regulate, and the tendency of creating “the purchasing code”, in other words, to eliminate differentiated legal regulation and to establish common purchase standards to be applied to the whole of contract system. The article describes the possible pending changes in the contract legislation. Also, an attempt is made to assess the effectiveness of the regulated procurements legislation which helps to identify problem areas such as distortions in the meaning of the law the way it is interpreted in by-laws, existence of legal gaps and collisions, lack of uniform law-enforcement standards.

Keywords: procurement, customer, procurement rules, contract system, unitary enterprise, commercial secret.

DOI: 10.12737/21217

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The Concept of Beneficial Ownership in Russian Judicial Practice (Private Law Aspects)  Pdf 16

V. A. KANASHEVSKIY

doctor of legal sciences, professor
Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: seleron75@mail.ru

The author studies the definitions and features of the concept of “beneficial ownership” and its application by Russian courts. Although the Russian civil law does not recognize the concept of beneficial ownership which comes from the English law of equity, this concept is beginning to be recognized by Russian judicial practice, in particular, in the recent resolutions of the Russian Supreme Court of the Russian Federation. The cases in question relate to the division of the joint property acquired by spouses during the marriage (the Russian courts consider the property (assets) of the offshore company or trust controlled by spouse (acting as a beneficiary) as a joint spouses’ property); recognition of the rights of beneficiary for challenging the decisions of the companies controlled by such beneficiary; levy of execution upon the property of the offshore companies and trusts controlled by beneficiary for the beneficiary’s debts. It is obvious that decisions of Russian courts are in the line with trends of development of foreign case law. One of the manifestations of the beneficial ownership concept in Russian law is the institute of “a person having factual right for the income”, fixed by Russian tax law. Considering the deoffshorization policy in Russia, it is obvious that this institute will continue to be reflected in the national tax law. The author attends to, inter alia, the questions of applicable law to beneficial ownership, including applicable law to the relations with offshore companies and trusts. In particular, the legal regime of foreign trust’s or offshore company’s property shall be determined by the law of the relevant foreign jurisdiction but not by the rules of Russian law.

Keywords: beneficial ownership, beneficiary, beneficial owner, beneficiary owner’s rights, legal title, offshore company, applicable law, legal title holder, equity, equitable title, trust, piercing the corporate veil, resulting trust.

DOI: 10.12737/21218

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Compensation of Losses not Related to the Breach of Obligations  Pdf 16

E. I. CHETYRUS

candidate of legal sciences
The Sergiev Posad branch of the Moscow State Machine-Building University
4, Sportivny pereulok, Sergiev Posad, Russia, 141304
E-mail: eugenjohn@yandex.ru

The article considers the concept of “indemnity” that is rather new to national civil law. The analogy of this concept that was borrowed from the foreign law system is reflected in the article 4061 of the Civil Code of the Russian Federation “Compensation of losses which occur due the circumstances stated in the contract”. In particular, the given Article of the Code establishes that the parties to the obligations acting jointly as members of the business activities may through their mutual agreement provide for the obligation of one party to compensate for material losses of the other party which were caused by the circumstances listed in the contract, but unrelated to violation of obligations by the party (losses caused by impossibility of fulfilment of obligations, submission of claims by third parties or bodies of state power against a party or third party which was indicated in the contract, etc.). The agreement between the parties shall determine the amount of losses to be compensated for as well as the procedure for such calculation and compensation. The author concludes that the notion “indemnity” and compensation of losses which are not associated with the violations of obligations, should not be confused since they are not identical legal factors.

Keywords: indemnity, obligation, business relations.

DOI: 10.12737/21219

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Legislation in Social Sphere: Measuring Efficiency  Pdf 16

N. S. VOLKOVA, O. Yu. EREMINA

N. S. Volkova, 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: volkova@izak.ru

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

The author undertook to study the evaluation of efficiency with regard to legislation, which regulates social sphere. The article speaks of the special approach adopted to determine the efficiency of social legislation. There have been identified the criteria for such efficiency. The author further analyses the criteria used to determine the social effects of law as well as the ways used to apply said criteria. Subject to analysis is the applicability of various indicators employed to establish the efficiency of a given normative act. The author formulates the principle which helps to establish the efficiency of legislative acts. Specific examples are cited from among the currently effective social legislation. The authors come to conclude of the complexity to determine the degree of efficiency in the sphere of legislation which is largely conditional on the substance of relations regulated by law.

Keywords: the legislature in social sphere, social policy, determination of effectiveness, criteria of effectiveness, social effect, social needs, quality of law, procedure of effectiveness determination.

DOI: 10.12737/21220

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Collective Labor Disputes, Strikes and Protests in Russia: Relevant Laws and Practices  Pdf 16

E. S. GERASIMOVA

candidate of legal sciences
The National Research University “Higher School of Economics”
3, Bolshoy Trekhsvyatitelskiy lane, Moscow, Russia, 123022
E-mail: egerasimova@hse.ru

The article analyses the information that has been gathered in the sphere of collective labor disputes, strikes, labor protests and conflicts in Russia. It contains official statistics which show that collective labor protests are held strictly within the frameworks stipulated by law (collective labor disputes, strikes), the number thereof is low and does not increase in difficult and crisis periods. At the same time increasing is the number of protests which take place in various forms and without resort to procedures provided for by law for the resolution of labor conflicts. The author pays attention to the role of the currently effective legislation, the enforcement thereof, including judiciary practices, and the consequences of such practices. The author concludes that the legislature, enforcement and case practice - all call for changes which would be conducive to making use of legislation of collective labor disputes not only as a prohibitive and restricting tool, but as a creative effective, convenient and efficient mechanism of solving collective labor conflicts.

Keywords: labor law, right to strike, collective labor disputes, labor conflicts, labor protests.

DOI: 10.12737/21221

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Essence, Functions and Legal Forms of Funds  Pdf 16

I. I. KUCHEROV

doctor of legal sciences, professor, 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: prof.kucheroff@mail.ru

The article attempts to identify existing legal forms of funds through the prism of the performance of the basic functions. It explains fundamental role money has to play: a function of medium of exchange, a measure of value, means of accumulation, means of payment and the function of world money. The function of medium of exchange involves the use of funds in the area of trading. Use of money as a common counting unit is connected with the economical function of the measure of value. This function means that money serves as the universal means of indicating the price of goods, works and services. As a means of accumulating it is materialized through accumulation, which have the feature of value stability. As means of payment money works through payments out of any direct connection with the downturn area. Finally, the functioning of world money is associated with the use of the currency of a state in international payments. The author considers other functions of money. Special attention is paid to the legal currency, foreign currency and monetary metals.

Keywords: concept and functions of money, legal form of funds, legal currency, foreign exchange, monetary metals.

DOI: 10.12737/21222

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Criminal Law Practices and Stability of Crediting System  Pdf 16

A. N. SAVENKOV

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: AN61S@yandex.ru

The article is devoted to ensuring the financial security of the Russian state in connection with the implementation of the criminal policy. It underlines the need of decriminalization of the area of economic activity for the related legal relations protection. It defines the economic security threat to the country in the context of state strategic planning. It pays special attention to combating crime in the financial sphere. It covers changes in legislature in this sphere that result in expansion of legal practice of prosecution for crimes committed in such area, and that are aimed at preventing illegal financial transactions, as well as the organization of inter-agency cooperation in criminal cases of this category. Microfinance institutions in the form of firm-“ephemeral”, “pyramid schemes” and participating in illegal lending market, which is due to the ability to create imperfection of legal regulation of their activities are detected as a significant threat to stability of functioning of the financial and credit system. It indicates that the mechanism of criminal repression without other complex legislation is inadequate method to counter such crimes. It contains results of the analysis of prevention and detection of criminal acts of problems in this area and proposals for their resolution, including the normative character, and others.

Keywords: criminal policy, financial system, financial-credit sphere, financial security, combating crime, criminal prosecution, the Central Bank of Russian Federation, State Corporation “Deposit Insurance Agency” criminal repression, microfinance institutions, “pyramid schemes”, firm-“phony”.

DOI: 10.12737/21223

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Mistakes in Criminal Law Legislation  Pdf 16

M. A. KAUFMAN

doctor of legal sciences, professor
Russian State University of Justice
69А, Novocheremushkinskaya st., Moscow, Russia, 117418
E-mail: mak_kauf@mail.ru

The analysis of the modern Russian criminal law reveals a significant number of shortcomings - both conceptual (as gaps and redundancy) and defects of juridical and technical nature. The lawmakers’ mistakes affect the overall quality of the criminal law and lead to its poor efficiency. The author analyzes the mistakes made in the course of criminalization, decriminalization, penalization and depenalization, notices the unsystematic nature of many changes. Technical and legal mistakes are examined from the perspective of the criminal law systematic violation, often resulted in inconsistency of its provisions. The author makes a conclusion that the criminal legislation should be drastically reformed and existing mistakes should be corrected - for this purpose a scientifically justified concept of criminal policy that meets all modern criminal demands should be developed.

Keywords: lawmaking mistake, criminalization, decriminalization, penalization, depenalization, gap, redundancy.

DOI: 10.12737/21224

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Legal Problems of Corruption Crimes Classification  Pdf 16

E. V. CHEREPANOVA

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: antikor@izak.ru

The main goal of criminal legal science is determination of correlation between action and characteristics of corpus delicti which is constituted by criminal legislation. Only correct classification of crimes can guarantee justice preserved by law. The criminal legal assessment of corruption crimes is a separate problem of classification. Classification of such crimes is difficult in current activity of law-enforcement authorities and courts because of the conflict of law, redundancy of estimation definitions, etc. Besides the problem of counteraction of corruption was formulated as the main challenge of state. In the article are analyzed the legislation and law-enforcement practice. The conclusion contains recommendations which can lower the amount of mistakes in corruption crimes classification.

Keywords: crimes classification, corpus delicti, corruption, criminal law, bribery, commercial bribery, court legal practice.

DOI: 10.12737/21225

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The Right to Defense in Criminal Proceedings  Pdf 16

E. V. SELINA

doctor of legal sciences, associate professor
Peoples’ Friendship University of Russia
6, Miklukho-Maklaya st., Moscow, Russia, 117198
E-mail: elena_selina@bk.ru

Analyzed in this article is the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 29 dated 30 June 2015 “On the practice of courts of law, ensuring the right to defense in criminal proceedings”. The new feature of the defendant is determined - statement of the court procedure to the temporary absent or remote defendant. It is proved that in Article 73 of the Code of Criminal Procedure, with the obvious desire of the legislator to include in the subject of proving the circumstances established in the protection contains no direct reference to the non-participation of a person to commit a crime. Epistemologically, self-confidence as the lack of evidences is not accepted as a direct proof. Indirectly, alibi is the fact that the accused person was in the other place when the crime had been committed, indicates the innocence or alias (physical disconnect of the accused person and the real person who committed the crime), or alter (physical disconnect of the accused person and the mechanism of committing the crime). It is proved that the application of these and other arguments in favor of the accused should result in their including in disprove.

Keywords: alibi, alias, alter, a lawyer, the court, the investigator, the right to protection, discretionary powers.

DOI: 10.12737/21226

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Problems of Substantive Differentiation Conditions of Criminal Proceedings  Pdf 16

A. V. BOYARSKAYA

candidate of legal sciences
Dostoevsky Omsk State University
55A, Prospekt Mira, Omsk, Russia, 644077
E-mail: mail: ba.omsu@gmail.com

The article discusses current issues of differentiation of criminal proceedings. The character of the impact of criminal law on procedural form of summary court proceedings. The author successively examines the substantive basis of summary court proceedings of Russian criminal trial: a special order of the trial, a special procedure for the trial at the conclusion of the pre-trial agreement, judicial procedure under Art. 2269 of the Code of Criminal Procedure, as well as in criminal cases of private prosecution. The author concludes that the specific substantive basis is not peculiar to each of these procedures. Legislators did not specify the substantive grounds of procedure under Sec. 401 Code of Criminal Procedure. The court proceedings under Art. 2269 CPC RF does not have its own substantive basis. The article concludes that all above said demonstrates the destruction of classical chords, according to which the differentiation of criminal law determines the differentiation of criminal procedural law in sphere of differentiation of criminal procedural form. Nowadays, on the contrary, the differentiation of the criminal procedure is carried out more rapidly and dictates the transformation of criminal procedural law. The article also analyzes the causes and symptoms of this trend of development of modern legislation.

Keywords: differentiation of criminal law, criminal procedure differentiation form, summary proceedings, a special procedure for the trial, pre-trial agreement on cooperation, abbreviated inquest.

DOI: 10.12737/21227

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Grounds for International Responsibility of States: Theoretical and Practical Aspects  Pdf 16

G. I. KURDYUKOV, M. V. KRIVENKOVA

G. I. Kurdyukov, doctor of legal sciences, professor
Kazan (Volga region) Federal University
18, Kremlevskaya st., Kazan, Russia, 420008
E-mail: kurdyukov@rambler.ru

M. V. Krivenkova, сandidate of legal sciences, associate professor
Naberezhnye Chelny Institute of Kazan (Volga region) Federal University
10a, Syuyumbike ave., Naberezhnye Chelny, Russia, 423812
E-mail: krivenkova_maria@inbox.ru

The article deals with the doctrinal approaches to the meaning of the term “grounds” for international responsibility. The authors analyze the points of view expressed by national writers on to the problem in question as well as and the norms of international law which specify the situations where a state may be called upon to be held liable internationally. Given the existing complexities, determination of such grounds calls for a greater regulation of states’ liability which may entail international liability. Meanwhile the existing practical difficulties in the process of finding of these grounds show the necessity for a detailed regulation of obligations of states.

Keywords: international responsibility, grounds of responsibility, obligations of a state, internationallywrongful act, invocation of responsibility.

DOI: 10.12737/21228

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Institute of Recognition of States in International Law and Self-Proclaimed Territorial Entities  Pdf 16

R. M. KARAEV

candidate of legal sciences, associate professor
The Institute of Philosophy and Law of the Azerbaijan National Academy of Sciences
115, H. Javid ave., Baku, Azerbaijan, AZ1073
E-mail: raufgara@yahoo.com

In the system of international law the institute of international legal recognition of states acquired a special urgency. It is connected with a problem that arises with the emergence of unrecognized territorial entities which claim the status of independent states. The author gives the classification of such territorial formations. As the result of analysis, the author concludes, that only those territorial entities, that are created in conformity with the norms and principles of international law can claim to be recognized. Conversely, territorial entities that are created in the violation of international law cannot be recognized. In such cases, those States whose territorial unity was destructed by such illegal separatist and unrecognized community creation, can use any methods to liquidate such formations (for example, Islamic State and Levant).

Keywords: international law, institute of recognition, the recognition of states, territorial entities, non-recognition.

DOI: 10.12737/21229

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International Legal Regulation of Cooperation of the Russian Federation and Neighboring States in the Arctic on the Basis of Bilateral Treaties  Pdf 16

V. R. AVKHADEEV

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: mp2@izak.ru

The modern Law of the Arctic regime is administered both at the international law and national law levels. International legal regulation of the Arctic regime is exercised at the level of international multilateral and bilateral treaties. Multilateral treaties are aimed primarily to legal relations that govern the regime of Arctic maritime areas, as well as the decision of environmental issues in the region. Bilateral treaties are aimed to regulate the cross-border problems of neighboring countries. First of all, it means resolving contentious issues of delimitation of maritime areas of the Arctic, cooperation in the field of fisheries and mineral resources. Bilateral treaties are binding only for their members and do not create obligations for third countries. In some cases there are collisions between international bilateral and multilateral agreements on matters relating to the delimitation of neighboring maritime areas. Determination of the effectiveness of existing in the Arctic region international treaties and of their future development needs to be monitored.

Keywords: Arctic, the Arctic Ocean, Canada, Russia, USA, bilateral international treaties.

DOI: 10.12737/21230

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Administrative Regimes: Modern Contents and Trends of Development  Pdf 16

A. F. NOZDRACHEV, O. E. STARODUBOVA

Climate of the Planet in a Focus of Law  Pdf 16

N. V. KICHIGIN, N. I. KHLUDENEVA

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