Contents of issue # 12/2017

A Century оf Modification of the Russian State from the Standpoint of Science of State: the Essence, the Contents, the Form

V. E. CHIRKIN

chief research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor, honored scientist of the Russian Federation, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: vechirkin@yandex.ru

The first major legal entity changes in Russia's largely feudal state was the Imperial manifesto of 1861 abolishing serfdom, the second is the 1905 revolution and the basic laws of 1906: State Duma as the body partly similar to Parliament was created. In the Russian bourgeois-democratic revolution of 1905, in contrast to similar revolutions in the West, actively argued with Socialist grouping slogans, but large feudal elements in essence and content of state survived, and in political system and the form of the state were dominated. While maintaining basically the former essence changes in the content and form of the Russian State were introduced by the February revolution, 1917. When in the midst of anarchy (monarch abdicated, heirs refused) 2 (15) March 1917 by the agreement between the Temporary Committee of the State Duma and the Executive Committee of the newly created from "bottom" of the Petrograd workers and soldiers deputies soviet established a Provisional Government, as an body of legislative and executive powers. In fact, within a few months there were the actual state of dual state power. By its ruling the provisional Government changed the form of governing in Russia. The state became a Republic. The ensuing revolution 25 October (7 November) 1917 was totalitarian-socialist nature. It has fundamentally changed the essence, content and form of the Russian state. A socialist type, a totalitarian-socialist state was created in the declared form of the reрublic of Soviets (first the RSFSR, then the USSR). In fact, the Soviets were a tool of the power of the Communist Party, which according to the Constitutions was forever proclaimed a leading party, became bodies, party-state nomenclature, the Antitotalitarian revolution at the turn of the 1980s-1990s. After the collapse in 1991 USSR changed the essence, content and form of the Russian state. But for genuine socialism time apparently did not come, though it should be pursued. This requires objective data: much more highly developed productive forces (including science), another society, other methods of distribution of the social product and, more importantly, other persons (men and women). Apparently at this stage of development of the mankind the possible more developed social systems is a social-democratic capitalism, with some elements of socialism in the form of a Democratic Republic, which includes the old and new institutions of direct popular democracy, provided by the modern development of science and technology.

Keywords: the Russian State, essence, content form, frontiers of modification.

DOI: 10.12737/article_5a2005016b63f7.29771028

Progress of the Law Understanding: Historical and Materialistic Approach

I. V. LEVAKIN

professor at the Department of legal support of management of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation, doctor of legal sciences, professor
76, Vernadsky ave., Moscow, Russia, 119454
E-mail: Levakin@yandex.ru

The working hypothesis tells about types of law understanding under definite historical conditions and the ways of its characterizing: progressive and regressive. Such a classification of types of law understanding is necessary for making the right way of law theory and practice improving. The main objective is to identify progressive and regressive concepts of the modern law understanding on the basis of objective and verifying criterion of progressiveness. The objectives of the article are to suggest the criteria of progressivity and classification of types of law - different types of explanations of the essence of law, divided into groups according to this criterion. The research of law understanding progress prejudged the using of historical and logical method as the main one. Moreover, the doctoral method of analysis was used and other receptions and techniques within the framework of the historical and materialistic approach. As a result of the research there is a conclusion that progress of law understanding is typically connected with systematical sociocultural changes, leading from traditional to liberal civilization. The topical progressive concepts of law understanding develop the ideas that were proclaimed in the Universal Declaration of Human Rights in 1948, another the fundamental international acts, constitutions of the developed democratic states. The modern stage of social and economic developing of the advanced communities causes the law understanding progress by doctoral recognition of human rights as the leading form of manifestation of the law essence. The liberal concepts of law understanding perceived the idea of human rights as a central and they meet the needs of the advanced industrial relations of the XXI century.

Keywords: law understanding, progress, history, materialism, law essence.

DOI: 10.12737/article_5a200502527728.08828403

To Understand the Paths of Law Development in the Era of Capitalism Project

M. R. ZEMBATOV

head of the Centre of economic-legal analysis of the Ministry of Finance of the Russian Federation, candidate of economic sciences
3, Nastasynsky lane, Moscow, Russia, 127006
E-mail: zembatov@nifi.ru

There is an analysis of possible ways of legal reality development of in terms of the design-basis capitalism in present article. The author gives the characteristics of the main important directions of legal regulation development connected with the changes in the socio-economic situation. On the basis of the changing legal relations in the sphere of socially important forms of interaction of participants of economic turnover the author has made a conclusion about the existence of the law limits as a social regulator, due to its link with economic reality. The author proposes to discuss the issues of formation of ways for legal regulation development of public relations in the rapidly changing and rich of the modern technology world; the transformation of the role of the state in the implementation of protective function of law, and the adaptation of the legal orders of magnitude for volatile texture of economically important relations in society. Possible ways of development of legal regulation methods due to the design-basis nature of capitalism in post-industrial era of the social conditions. The author tried to summarize the main directions of scientific views’ development concerning the questions of the origin and functioning of the design-basis capitalism and the problem of forming social relations in the sphere of state construction, economy, and social design in the era of capitalism. Also the approach to the vision of the modernization of the legal methods of state regulation of social relations in the sphere of social organization was proposed. At the end the author has made a conclusion concerning the change of organization forms of legal support to potestas functions of the state in the future with regard to the immanent restrictions and possible functioning of legal orders, taking into account the changing socio-political reality of the peculiarities of the legal consciousness impact on the dynamics of changing of relations in the era of the design-basis of capitalism.

Keywords: design-basis capitalism, legal order, law enforcement, policing, globalization, modernization, law of future, context.

DOI: 10.12737/article_5a2005002f6c61.38115908

Legal Nature of a Legal Norm: Integrative Approach

M. V. KUCHIN

associate professor at the International and european law department of the Ural State Law University, candidate of legal sciences
21, Komsomolskaya st., Yekaterinburg, Russia, 620066
E-mail: kutschin@mail.ru

The concept of the norm is a key element both for legal understanding in general and for the purposes of law enforcement. The approaches to understanding the legal norm that developed in the domestic theory during the Soviet period remain unchanged and do not take into account modern realities, including particular features of international norm-formation. Ignoring the particular features, inherent to international legal norms, the discrepancy between doctrinal approaches to changes in Russian legislation and to provisions developed by judicial practice introduce a certain disbalance and lead to disputes about normativity of certain provisions and acts. The purpose of this research is to analyze both the existing and currently proposed scientific approaches to the problem of normativity, as well as the changes that have taken place in recent years in international and domestic law. For the analysis the author used formal legal and comparative legal methods of research. The article attempts to identify common features inherent to all legal norms and determine their legal content on the basis of analysis of doctrine, domestic legislation, international law, judicial practice. The necessity of an integrative approach in the development of general legal categories that takes into account the peculiarities of different legal systems is substantiated. The most important reason of the development of this direction in the domestic law is the constitutional consolidation of the thesis on the inclusion of international law in the legal system of the Russian Federation. In the article special attention is paid to a critical analysis of the signs of legal norms that make it possible to distinguish them from among other social norms. The author proposed a new definition of the rule of law as regulating public relations and designed for repeated use binding prescription, established and / or recognized by the state or an authorized by states by an interstate institution and ensured by its imperious compulsion.

Keywords: law, definition of the rule of law, international legal norm, indications of legal norm, correlation of international and domestic law.

DOI: 10.12737/article_5a2005006de624.36183729

Supervision of Judicial Activities as Constitutional Beginning of the Organization of Judicial Activities

V. P. KASHEPOV

head of the Department of criminal and criminal procedural law; judicial system of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor, honored lawyer of the Russian Federation, honored scientist of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: crim@izak.ru

Supervision of judicial activities represents the main constitutional function of the Supreme Court of the Russian Federation as center of implementation of powers for implementation of a state leadership judicial system of the Russian Federation. In article features of implementation of the judicial supervision exercised in a procedural and organizational form are analyzed. Procedural instruments of organizing impact on activity of the courts are provided by the procedural legislation and directed to correction in stages of supervising production of the mistakes made by courts in case of administration of law, recovery of legality and ensuring justice with legal proceedings in case of trial of legal cases. Functions of judicial supervision are performed by means of implementation of all legal proceedings types provided by the constitutional laws. Impact of the mechanism of the procedural procedure of elimination of the legality violations revealed by supervising instance also represents a form of the leading influence of superior court on the organization and efficiency of judicial activities of subordinate courts. In a formulation and carrying out judicial policy by judicial system the Supreme Court of the Russian Federation plays the main role. Management of judicial activity of the courts of the general jurisdiction and arbitration tribunals performs the difficult system of powers on the organization of judicial activities for which implementation the law provides a number of divisions in structure of the Supreme Court of the Russian Federation. The mechanism out of procedural impact on implementation by judicial bodies of their constitutional tasks is implemented by means of execution by the Supreme Court of the Russian Federation of the obligations assigned to it by the law on the organization of activity of the courts. The constitution of the Russian Federation at the same time specifies the directing value of explanations of the Supreme Court as judicial supervision of problems of law-enforcement practice of courts. The developed legal positions of the Supreme Court of the Russian Federation at the same time are designed to meet lacks of the legislation and to serve as the leading reference points in carrying out judicial policy. The considerable attention in article is paid to a role of the Chairman of the Supreme Court of the Russian Federation in the organization of judicial supervision behind judicial activities in all its manifestations: management of ensuring activities of all judicial system, forming of the judicial case, initiative of updating of the legislation on the organization and implementation of judicial activities, direction of all work of the Supreme Court of the Russian Federation. Considering variety of influence of the Supreme Court of the Russian Federation on the organization and functioning of the institute of judicial authority exercised mainly by means of the supervision of judicial activities established by the Constitution of the Russian Federation in all its completeness and variety the author of article suggests to recognize this value of supervision of judicial activities as the principle of the organization of judicial system and to reflect this approach in the constitutional legislation.

Keywords: management of judicial system, supervision function, procedural direction, organizational support, role of the Supreme Court of the Russian Federation.

DOI: 10.12737/article_5a200503177f75.99347766

History of Medical and Legal Views on the Mental Health of a Criminal (XIV—ХIХ Centuries)

R. U. KHABRIEV, B. A. SPASENNIKOV

R. U. KHABRIEV, director of the Semashko National Research Institute of Public Health, academician of the Russian Academy of Sciences, doctor of medical sciences, doctor of pharmaceutical sciences, professor
12, Vorontsovo pole st., Moscow, Russia, 105064
E-mail: institute@nriph.ru

B. A. SPASENNIKOV, chief research fellow of the Research Institute of the Federal Penitentiary Service of Russia, doctor of legal sciences, doctor of medical sciences, professor
15А, Narvskaya st., Moscow, Russia, 125130
E-mail: borisspasennikov@yandex.ru

The role of mental disorders in the genesis of criminal behavior attracts attention of doctors, lawyers, psychologists, sociologists and philosophers. Mental disorders have a significant impact on the intellectual and volitional spheres of a human. They play a certain role in the pathogenesis of criminal behavior. Science-based solution to the problem determines the functions of the state to protect society against crime patients with mental disorders. Interest in this problem is determined by the fact that in various regions of Russia the number of persons recognized by the court of sound mind varies considerably (from 85 to 97%). This contradicts to the data on the prevalence of mental disorders in constituent entities of the Russian Federation. The article deals with the emergence and development of the doctrine of mental disorders in the criminal. The authors studied Russian laws in 1649, 1716, 1832, 1845 and others. The development of the doctrine of mental disorders is inseparable from the evolution of views on the mechanism of mental illness. The theory of insanity offender has evolved very slowly. In XV-XVI centuries judges began to take into account the mental state of a criminal. Wrong views on the mechanism of mental disorders in different periods of time determined by the emergence of various laws. April 23, 1801 a humanistic attitude towards the mentally ill criminals was confirmed by the Decree of Alexander I. The legal assessment of the criminal mental health was given in the draft of the new Criminal Code in 1903. Provisions of this law reflected the position of the Russian medical science. However, the definition of legal sanity was absent.

Keywords: history of science, history of domestic law and state, history of medicine, mental disorders, sanity, insanity.

DOI: 10.12737/article_5a200503959af6.48000991

Criminalization of Illegal Reward: a Step Back or an Anti-Corruption Novation?

O. I. SEMYKINA

senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: semykola@yandex.ru

In the context of the National Plan to Combat Corruption for 2016-2017 on the development of scientific research on the reduction of the level of domestic corruption, the article looks at the prospects for criminalization in the Criminal Code of the Russian Federation of a special composition - the receipt of illegal remuneration by persons who are not subjects of petty commercial bribery (Article 2042) and petty bribery (Article 2912). The study focuses on the latest experience of the legislative regulation of obtaining illegal remuneration in the legislation of Belarus, Moldova and Kyrgyzstan, reveals differences in the design of the relevant criminal law in the legislation of each of the designated states, as well as the jurisprudence in criminal cases on illegal remuneration of public servants, who are not officials, in those countries in which the proceedings in such criminal cases ended conviction. Comparing the compositions of small commercial bribery and petty bribery introduced in the Criminal Code of the Russian Federation by Federal Law No. 324-FZ of July 3, 2016 “On Amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation”, with the composition of illegal remuneration, regulated by the Criminal Codes of Belarus, Moldova and Kyrgyzstan, the author comes to the conclusion that it is advisable to criminalize in the Criminal Code the rules on illegal remuneration, extending its effect to persons who do not possess special legal status of an employee or official, and not empowered to influence the outcome of a “transaction” in favor of the person giving or represented. In the final part of the article, two options are proposed for criminalizing the receipt of illegal remuneration, acceptable for the criminal legislation of Russia, and, in the author's view, along with petty commercial bribery and petty bribery contributing to a decrease in the level of domestic corruption.

Keywords: corruption, criminal law, criminalization, criminal responsibility, bribery in the privet sector, bribery in the public sector, illegal reward, liability of legal persons.

DOI: 10.12737/article_5a200506ec7670.20674861

Insignificance of Bribery

R. D. SHARAPOV

professor at the Department of criminal law and process of the Tyumen State University, doctor of legal sciences, professor
38, Lenin st., Tyumen, Russia, 625000
E-mail: r.d.sharapov@utmn.ru

The article examines the key positions in the theory and practice of criminal law on the problem of insignificance of the act in the process of bribery qualification. It is argued inadmissibility of identifying the so-called ordinary gift in the service with insignificance of the act of bribery. There is a significant question for law enforcement about characterizing the conditions under which an official receives an illegal property reward is not a crime due to the insignificance of the act. The purpose of the study is to search for and formulate criteria that affect the evaluation of bribery as a minor act. Objectives of the study: analysis of key positions on the problem of insignificance in the definition of bribery in the theory of criminal law, evaluation of judicial decisions on the issue of the qualification of bribery as a minor act, the definition of criteria for delineating the insignificance of the act and bribery, bribe-gratitude, analysis of the impact of provisions of civil and official legislation About the usual gift, as well as the legal positions of the Constitutional Court of the Russian Federation on the evaluation of the insignificance of the act qualification bribery. Research methods: system-structural approach to the study of the conditions of insignificance of bribery, methods of analysis and synthesis, induction and deduction, methods of historical and legal, extrapolation and legal interpretation of the rules of law. The conclusion is that the evaluation of the insignificance of the act in the course of the qualification of bribery can be made under the condition that, in the presence of all the other signs of a normal gift for service provided for by civil law, its size is not much greater than that established by law, which, on the one hand, Does not allow to consider the gift of the official given to him by the permitted legislation, on the other hand, does not give grounds for qualifying what was done as bribery because of the insignificance of his deeds Tion. It is recommended that the excess of the allowable amount of donation to officials, which can be considered as the basis for recognizing the deed is insignificant, can not be more than twofold. At the same time, the amount of illegal remuneration of an official, given to him as a gratuity, should be calculated, taking into account the legal position of the Constitutional Court of the Russian Federation, as the difference between the actual value of the transferred remuneration and the cost of an ordinary gift allowed by law.

Keywords: insignificance of the act, bribe, ordinary gift, bribery.

DOI: 10.12737/article_5a2005040a50a1.86104014

Tax Jurisdiction: Limits of Possible and Postponed Risks

I. A. KHAVANOVA

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: fin8@izak.ru

The article is devoted to the development of theoretic legal questions of tax jurisdiction. The aim is to study spatial limits of tax jurisdiction, that stipulated for delimitation of concepts “tax sovereignty” and “tax jurisdiction”, determination of the borders of tax jurisdiction, modern legal means of their broadening as well as research of delimitation of tax jurisdictions under the interaction of national and international law norms. The author used general and specific scientific methods, including comparison. In the research the author presumes that inseparably linked with state sovereignty jurisdiction doesn’t merge into the latest and spatial borders of the sovereignty of the Russian Federation could not coincide with spatial limits of its tax jurisdiction. In respect to international relations tax jurisdiction is power to create rules of taxation obligatory for subjects specified in them - residents and non-residents, that is recognized by other states as valid. In tax law, as it’s noted in the article, there’s no prohibition for simultaneous income taxation of the same subject in the state of source and the state of residence. As national laws doesn’t exclude international double taxation, its’ avoidance is possible mainly by international agreements. Recognition of states tax legislation as invalid only by virtue of ability to lead to international double taxation would broaden, by author’s opinion, opportunities to avoid taxation. The rules of delimitation of the tax jurisdiction of states that are stipulated in international agreements on avoidance of double taxation, doesn’t have the effects of limitation of tax sovereignty. Provisions of such agreements, which provide for the rights of tax obliged subjects - residents of one or both contracting states have both international and national legal content. They can’t be implemented in the absence of national legislative regulation in this sphere of relations as material base for taxation by virtue of constitutional principle according to which taxes are set only by law. In international legal aspect, norms secure the delimitation of tax jurisdictions. Their national legal content ensures exercise and protection of tax subject rights, recognized for the aims of agreements. The author makes a conclusion that states have broad discretion in the field of jurisdiction spreading on subjects connected with them by certain criteria, as well as on property in respect to which the same conclusion can be made. At the same time the author supposes that it’s right to talk about the link exactly with state and not with state territory, as spatial limits in which frames sovereign rights and duties of modern state are exercised, are broader than geographical region in limits of state borders.

Keywords: tax, tax sovereignty, tax jurisdiction, international taxation, risk.

DOI: 10.12737/article_5a200500b1b5d6.74493818

Offer or Promise of an Illegal Reward to the Benefit of the Legal Entity (Article 19.28 of the Administrative Offences Code of the Russian Federation)

F. N. BAGAUTDINOV

head of the Department of the Kazan Law Institute of the Academy of the Prosecutor General’s Office of the Russian Federation, doctor of legal sciences
41, Moskovskaya st., Kazan, Russia, 420111
E-mail: kzn.ui.agprf@mail.ru

By the Federal Law of December 25, 2008 N 280-FZ introduced the amendment to the Administrative Offences Code of the Russian Federation. The new anti-corruption rule - article 19.28 was included. This article provides for administrative liability of legal persons for illegal transfer, offer or promise of an illegal rewards. The main part of the administrative cases arises from the criminal cases on bribery and commercial bribery. Although the offer or the promise of illegal reward is common, but the majority of such cases remain latent. Identifying, securing, proving of the facts of the offer or promise of an illegal reward to the benefit of the legal persons is difficult. In this regard, it is important to collect evidence which can confirm the offer or promise of an illegal reward to the benefit of legal entities. The article examines the complex of issues related to the bringing legal entities to administrative liability for offer or promise of an illegal reward. Based on the generalization of the law enforcement practice of prosecutors and courts the author shows the features of the initiation by the Prosecutor of the administrative proceedings for the illegal reward to the benefit of legal persons, the consideration of administrative cases by the courts, and formulates the proposals for improving the legislation. The author comes to a conclusion that the offers, promise of the illegal reward pose less of a public danger than the transfer of the illegal reward. According to this it is suggested to allocate in a separate part of the article 19.28 of the Administrative Offences Code of the Russian Federation concerning the offer or promise of an illegal reward to the benefit of the legal entities and reduce the size of an administrative fine compared to the punishment provided for the transfer of the illegal reward.

Keywords: administrative liability of legal persons for corruption offences, offer of promise of the illegal reward to the benefit of the legal entity, the punishment for an administrative offence.

DOI: 10.12737/article_5a20050449d515.08125385

Key Features of Legal Regulation of State Control in the Field of Education

M. N. KUDILINSKY

associate professor at the Department of state and administrative law of the Faculty of law of the St. Petersburg State University
7-9, Universitetskaya emb., St. Petersburg, Russia, 199034
E-mail: kudilinski@yandex.ru

The author explores the problem of legal regulation of state control in the field of education in Russia. The problem of exercising state control and supervision does not widely disseminated in the modern scientific literature. And furthermore, educational establishments under the State control don’t have the common understanding how to use the law in the right way during the monitoring activities. The analyses of established legal practice and the supervisory authorities’ activity in the field of education shows that: 1. State control in this area includes: Federal licensing control, Federal accreditation control, internal control by the executive state authorities in the sphere of education. 2. State control in this area is focused on adjustments in activities of the educational establishments. 3. Organizations under control are provided with a real opportunity to correct the detected abuses which were found out during the monitoring activities. 4. Ban on admission and educational activities are the sole penalties. They used to apply if an educational establishment for one reason or another ignores the requirements of the executive state educational authorities. 5. Exercising of public (social) control methods based on citizen involvement in the process of control by the executive state authorities is one of the specific characteristics of state control in the field of education. 6. The major goal of state control in this area is ensuring the quality of education and conforming it with the state standards. To achieve this aim the Russian legislature agrees to use the methods of public (social) control through a variety of activities: survey of students and their parents or guardians; degeneration of the educational establishments’ rights and their legitimate interests; using coercive measures of a restorative justice.

Keywords: legal regulation, supervision, state control, sphere of education, licensing control, accreditation of the education establishments, monitoring activities.

DOI: 10.12737/article_5a200507549846.40269735

Economic Sense of a Transaction: Legal Qualification Issues

S. A. SINITSYN

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: synss@mail.ru

Relevance of consideration of an interconnected issues set is determined by widespread introduction in the modern civil doctrine the economic jurisprudence school approaches, conceptual areas of development and intermediate results of the current reform of the Russian civil legislation, judicial and legal positions which have developed and are being developing in the current judicial and arbitration practice and, in particular, an active use by the courts in dispute resolution such categories as “inequality of negotiation and economic opportunities of the parties”, “equivalence of considerations under a contract”, “absence of economic result and business purpose of a transaction”. It is about admissibility and correctness of legal qualification of economic sense of a transaction, as well as about basic opportunity and reliability of identification during judicial proceedings of the true economic sense of a transaction. In this connection the author analyses coherence of the economic contract theory with the development of modern ideas of transactions and a contract in the civil law science in Russia and abroad. During consideration of problematic issues of a basic possibility of identification of the true economic sense of a transaction, and correctness of its legal qualification in terms of comparative and legal analysis, the author points out to the absence of uniform principles of solution criteria applied to the abovementioned issues in the doctrine and law-enforcement practice of foreign countries, as well as heterogeneity of approaches of the Russian judicial and arbitration practice. The attention is focused on the inexpediency of reviewing or supplementing the existing rules in Russian civil legislation on transactions by new invalidity structures for transactions in the absence of economic expediency or effect of the transaction. This can be proposed by certain representatives of the legal community in the implementation of judicial and legal positions by civil legislation.

Keywords: economic feasibility of a transaction, purpose of a transaction, effect of a transaction, execution of a transaction.

DOI: 10.12737/article_5a200505a69d13.53090537

Exclusivity Term in Economic (Exclusive) and Property Rights

L. V. SAGDEEVA

postgraduate student at the Department of civil legislation and procedure of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: lsagdeeva@itps-russia.ru

The article discusses the concept of “exclusivity” in relation to property rights and economic rights of an author (exclusive rights) in the pre-revolutionary, soviet and modern periods. The author concludes that there is no fundamental difference in the understanding of the “exclusivity” of these subjective civil rights as a manifestation of their absolute character. Based on analysis of the doctrine and national laws, it is noted that the pre-revolutionary understanding of “exclusivity” has been associated with a monopoly, exclusive opportunity to commit certain actions and elimination of all third parties. Also the exclusive character has been attributed to the property right as well. In the soviet period, the exclusive nature of the author's rights consisted in its inalienability from the author's personality, impossibility of assignment (transferring) of the author's rights to another person. Consequently, the “exclusivity” definition of authors rights, which historically arose in relation to property rights for use of the results of creative work, has been applied in the soviet period as a characteristic of the author's personal non-property (moral) rights including all the rights of the latter except for the right to receive royalties. With the adoption of the Russian Law “On Copyright and Related Rights” and the Civil Code of the Russian Federation, there are grounds for a return to the understanding of “exclusivity”, which was formed in pre-revolutionary Russia. At the same time, the author emphasizes that it refers specifically to the “exclusivity” term in exclusive rights and property rights, but not to the rights themselves, where the similarity of the legal design at the level of absolute property law, undoubtedly, has differences at the level of the objective, material and non-material character, and which determines the specifics of a legal regulation.

Keywords: exclusivity, economic (exclusive) rights, property rights, absolute right, monopoly.

DOI: 10.12737/article_5a200506374470.92320200

Legal Regime of Embryo in Vitro

Yu. F. DRUZHININA

associate professor at the Law institute of Kemerovo State University, candidate of legal sciences
6, Krasnaya st., Kemerovo, Russia, 650000
E-mail: yucca@mail.ru

The regulatory environment lags behind developing social relations is quite natural. However, the gap in the domain of legal regulation of assisted reproductive technology has become excessive. Despite the extensive practices of using such technologies, at the legislative level even the question of what an embryo in vitro and an object or a subject of law are, has not been solved yet. The paper explores analysis of approaches to solving this issue, expressed both in the juridical literature and legal precedents (including foreign ones). The approaches to solving the problem of disposing an embryo in a conflict between potential parents and in case of death of one or both of them are analyzed. It is concluded that an embryo in vitro is an individually defined, movable, indivisible, consumable unit, the ownership of which belongs to persons (or a person) who has applied for medical assistance, while the creation of an embryo appears a specification. When an embryo is created, it goes to the joint ownership of persons who have applied for medical care and each of them can withdraw their consent to conduct the corresponding procedure at any time. Such withdrawal can be overcome by filing a claim only in cases of losing the opportunity to have other children by the interested individual, while the person who revoked the consent cannot be recognized as a parent of a child. In case of death of one of the potential parents, all rights to an embryo must be transferred to a surviving parent and in case of death of both it must be turned to the medical organization.

Keywords: assisted reproductive technology, object of the civil rights, embryo, donor.

DOI: 10.12737/article_5a200506899599.19842755

Effectiveness of the Environmental Protection Legal Regulation in Russia: from “Conflict of Goals” to Environmental Legal Order

N. I. KHLUDENEVA

leading research fellow of the Department of environmental legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: khludeneva@mail.ru

The article examines the problem of the effectiveness of the environmental protection legal regulation in Russia using the targeted approach. The author pays attention to the fact that the current environmental legislation defines many of the goals of environmental protection legal regulation quite abstractly and do not have the form of specific tasks, taking fully into account the regularities of the appearance and development of environmental relations. According to the author, the goals and objectives of the environmental protection legal regulation are not commensurate with the regulatory capacity of law, which is a factor that reduces the effectiveness of the discussed directions of legal regulation. The diverse groups of social relations (economic, political, social, etc.) are involved in the sphere of environmental protection legal regulation. All these groups are consolidateв by a common social directions on the conservation and restoration of natural environment, rational use and reproduction of natural resources, prevention of еру negative impacts of human activities on the environment and liquidation of consequences of such effect. The heterogeneity (or diversity) of the environmental relations determines the complex nature of their legal regulation with the use of the range of the public law and private law means. The author notes that a feature of legal regulation of environmental relations in Russia is a significant predominance of public-law sourceы. This is partly predefined by the general social significance of the environmental goals. However, there are too much mechanisms of the environmental protection legal regulation, and this fact leads to the ecologically oriented activity of individuals and legal entities in the protection of nature are not effective. The article presents the general characteristics of the relations in the sphere of the environment protection, points out some problems of the rights and obligations of the environmental activities’ subjects.

Keywords: environmental protection, legal regulation of environmental activities, targeted approach to assessment of efficiency of legal regulation of the environmental protection, the inadequacy of the goals and objectives of the legal regulation of the environmental protection.

DOI: 10.12737/article_5a200507a06e72.56464834

Interpretation and Application of Article 234 of the United Nations Convention on the Law of the Sea of 1982 in Light of the Shrinking Ice Cover in the Arctic

V. V. GAVRILOV, R. I. DREMLYUGA, A. V. KRIPAKOVA

V. V. GAVRILOV, head of the Department of public and private international law of the Far Eastern Federal University, doctor of legal sciences, associate professor
8, Sukhanov st., Vladivostok, Russia, 690950
E-mail: gavrilov.vv@dvfu.ru

R. I. DREMLYUGA, associate professor at the Department of public and private international law of the Far Eastern Federal University, candidate of legal sciences
8, Sukhanov st., Vladivostok, Russia, 690950
E-mail: dremliuga.ri@dvfu.ru

A. V. KRIPAKOVA, assistant at the Department of public and private international law of the Far Eastern Federal University
8, Sukhanov st., Vladivostok, Russia, 690950
E-mail: kripakova.av@dvfu.ru

The paper analyzes the reasons for the development and inclusion of the article 234 in the text of the UN Convention on the law of the sea 1982. This article provides the coastal States the right to adopt national laws and regulations to prevent, reduce and control marine pollution from vessels in ice-covered areas within their exclusive economic zones. The provisions of this article are one of the major international legal bases of the Russian control over the navigation along the Northern sea route. However, according to the rapid reduction in sea ice cover in the Arctic in present time, the foreign academic and political circles often states about the necessity of a revision of the application practice of the article 234 in order to reduce the possibility of the implementation of the Arctic coastal States' rights in the new climate conditions. The authors on the basis of the analysis of Vienna UN Convention provisions on the law of treaties 1969 and the Convention on the law of the sea legally justify the conclusion that the article 234 of the Convention should be regarded as a special legal mechanism for protection of Maritime spaces in the Arctic region as a whole. Therefore, its action cannot be changed or canceled today as a result of reduction of ice cover in the Arctic or by reason of the entry into force on January 1, 2017, the Polar code, which establishes new international rules of navigation of ships in Arctic waters. The main conclusion of present work is that the shrinking ice of the Arctic ocean does not create legal grounds for changing the legal regime of the Arctic coastal waters defined by the article 234 of the 1982 Convention.

Keywords: Arctic, United Nations Convention on the law of the sea, legal regulation, environmental protection, interpretation, rights of coastal States, Polar code.

DOI: 10.12737/article_5a20050801d1a2.96251387

Priority Application of International Treaties in the National Legal System: Conditions and Consequences

B. I. OSMININ

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: mp3@izak.ru

Incorporation of the international treaties into the national legal system as an integral part of it, leads to the need to determine their position in this system. International law does not itself implement the rules at the domestic level. The effect of the international law on domestic legal systems largely depends on how this question is resolved in the law system of different States. International treaties in the most countries are considered as hierarchically lower than the Constitution; the Constitution shall prevail in case of conflict. The Constitution of the Netherlands gives to treaties precedence over laws, including laws with the constitutional status, but sets special requirements to a voting procedure. There is one question arises in States which are considering the treaties as hierarchically lower than the Constitution. The question is: how the treaties relate to ordinary laws? In some States if the treaties are ratified by law, they have a higher status than ordinary law, and can have a priority over all ordinary laws. In other countries, the treaties incorporated by Statute and usually have an equal status with ordinary legislation and can have the priority over all previous laws. There are a number of conditions of the priority of application of international treaties over statutes. Among them are: the ratification of the treaty on the basis of the law, the treaty's entry into force and its publication; the absence of contradictions with the Constitution; inability to harmonize the law with treaty provisions; the supremacy of treaties over conflicting provisions of the laws preceding and subsequent; the absence of subsequent contrary treaty law (for States in which treaties have the same ordinary laws status); the absence of an explicit intention to replace the earlier treaty by a subsequent statute; treaty provisions are self-executable; the principle of reciprocity. A consequence of the priority application of international treaties is that a treaty provision supersedes the conflicting provision of the law.

Keywords: terms of priority of application, constitutional status of treaty, to subject the treaties to the Constitution, priority of agreements to all laws, priority of treaties over all previous laws, subsequent legislation, clear intention, rule of advantage later act, superiority over the tax treaties, principle of reciprocity, replace conflicting rules.

DOI: 10.12737/article_5a2005088782b0.46114176

Criteria for the Distribution of Anti-Corruption Prohibitions, Restrictions and Obligations Imposed on Public Corporations and Their Subsidiaries

A. M. TSIRIN

acting head of the Department of countering corruption methodology of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, responsible secretary of the Interdisciplinary council for coordination of scientific, educational and methodical ensuring of countering corruption, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: antikor@izak.ru

The article discusses the anti-corruption prohibitions, restrictions and obligations imposed on the state corporations (companies). The article analyzes the implementation of the principle, according to which restrictions, prohibitions and obligations in respect of the employees with the appropriate positions, apply to them, taking into account features due to their legal status. The author has made a classification of the anti-corruption prohibitions in respect of state corporations (companies). It is noted that the existing public-law mechanisms cannot provide an effective barrier to corruption, and only a few state corporations (companies) were able to disseminate their anti-corruption policies in subsidiaries. The author proposes a legal mechanism and criteria for the dissemination of anti-corruption prohibitions, restrictions and duties in respect of state corporations (companies) to its subsidiaries. The anti-corruption standards for certain employees of subsidiaries of state corporations (companies) involve the formation of a list of officers and the determination of anti-corruption standards applicable to organizations controlled by state corporations (companies). The use of these approaches and criteria will strengthen the control and supervision of law enforcement agencies over the activities of subsidiaries of state corporations (companies), to enhance the role of the departments for prevention of corruption and other violations of state corporations (companies) in the implementation of the state anti-corruption policy. Another step to consolidate the role of such units would be the extension of their functionality by incorporating functions for monitoring compliance with anti-corruption standards in the subsidiaries of state corporations (companies).

Keywords: law, corruption, worker, status, restrictions, limitations, structure, recommendations.

DOI: 10.12737/article_5a20050a4973d5.70919996

Features of the Domestic Legislation Development in 1917 (Book Review: The Law of 1917: Scientific Training Textbook / ed. by S. A. Bogolyubov. Moscow, 2017. 256 p.)

D. A. PASHENTSEV

leading research fellow of the Department of theory of legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: theory@izak.ru

Review of the Book “Constitutional Legitimacy and Unity of the Legal Space in the Russian Federation (Theoretical Bases and Legal Problems)” (monograph / V. B. Evdokimov, T. A. Tukhvatullin. Moscow, 2017. 240 p.)

A. I. KOVLER

head of the Center of legal issues of integration and international cooperation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: kovler@izak.ru

Contents of issues:

2017
2016
2015
2014
2013
2012
2011
2010
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997