Contents of issue # 1/2017

Constitutional and Legal Frameworks of Competition in the Russian Federation  Pdf 16

T. Y. KHABRIEVA

academician of the Russian Academy of Sciences, associate member of the Academy of Comparative Law, doctor of legal sciences, professor, honored lawyer of the Russian Federation, honored lawyer of the Republic of Tatarstan, vice-president of the Russian Academy of Sciences, 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)
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office@izak.ru

The article is devoted to the constitutional legal norms and principles which laid the foundations of the modern legal regulation of the competition in the Russian Federation. The Constitution of the Russian
Federation of 1993 is the first basic law in the history of Russian constitutionalism which ensured the legal bases of the economic competition. Such legal bases are necessary for the adoption of stimulus measures as well as and the creation of protective regulations aimed at preventing unlawful conduct in the exercise of economic activities. These norms required development of the current legislation. The Federal Law of 26 July 2006 No. 135-FZ “On protection of competition” contains not only the definition of unfair competition but also its prohibited shape. The investigation shows that the conceptual apparatus of this sphere of legislation still needs to be developed in accordance with the constitutional design. The process of constitutionalization of the legislation due to the implementation of the Russian Constitution’s provisions suggested the coverage of the different branches of law and became a new stage in the development of the domestic legal system, after the confirmation of the competition support as a constitutional meaningful value. However the measures and methods of competitions’ “penetration” into the sectoral legislation still requires further learning. Using the competition support institutions, promoting the competition cannot be conducted without taking into account other constitutional principles (principles of the social state, freedom of economic activities, etc.). The article concludes that for the most complete disclosure of the potential of the constitutional provisions on the competition requires qualitatively different conditions of the specific legislation on competition.

Keywords: Constitution of the Russian Federation of 1993, constitutional and legal framework of the economic competition, warning and suppression, constitutionalization of the legislation, constitutional principle of competition support, other constitutional principles that promote the development of competition, sectoral funds for the development of the competition, constitutional law on competition, special competition law.

DOI: 10.12737/ 23698

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International Models for Regulation of Competition: Problem Statement  Pdf 16

A. Ya. KAPUSTIN

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: Kapustin@izak.ru

The article justifies the relevance of development of the concept of international competition regulation in the conditions of globalization of the world economy. Following the development of this idea the article suggests the concept of two models of international competition: international-law model of the competition law and the international regulatory recommendatory model of competition. The international regulatory recommendatory model of competition was developed in the UN on the basis of the Resolution of the UN General Assembly, including “the set of multilaterally agreed equitable principles and rules for the control of restrictive business practices”. The author substantiates the position that the statutory form — resolution-recommendation of the UN General Assembly that bears a framework character, was not chosen by chance. It allows to use the mechanism of “soft regulation” of the competition policy of UN Member States, leaving them the significant discretion in drafting of the national legislation and policies. At the same time the mechanism for monitoring of the compliance with the provisions of this document using by States and regional organizations allows to provide conditions for minimal progress in implementing its norms and principles. The article considers the scientific concept of the future of international competition law in a framework of the World Trade Organization (WTO). The analysis of the features of the international-legal model of competition law was carried out by the example of EU competition law. The originality of this model is that the EU has developed legal regulators of competition as well as has created the institutional mechanism to ensure the application of legal norms.

Keywords: international regulation of competition, globalization, internationalization of the global economy, the international-law model competition law, international legal Advisory model of regulation of competition the set of multilaterally agreed equitable principles and rules for the control of restrictive business practices, resolution-recommendation the nature of the framework, WTO law, regulatory model of competition regulation WTO competition and EU competition law.

DOI: 10.12737/23699

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Legal Regulation in the Sphere of the Protection of Competition  Pdf 16

S. Ya. BOZHENOK

doctor of legal sciences, associate professor
The Ministry of Internal Affairs of the Russian Federation
16, Zhitnaya st., Moscow, Russia, 119049
E-mail: boser@pochta.ru

The article is devoted to the regulation of the competitive relations realized by the various branches of law. The author outlined the main approaches to the regulation of this sector in the state strategic planning documents. Also the special attention in present article was paid to the application of criminal law means, which is one of the most effective means for the protection of the fair competition. In present article the author highlighted the main causes of the latency of crimes related to unfair competition. There is a retrospective analysis of the criminal law changes providing responsibility for crimes in the article, concerned with the restriction of competition. The author noted the necessity of using of economic, legal and organizational methods of state reaction to the violations of antitrust laws and promoting of the socially responsible behavior of the business landscape. At the end there are the results of the analysis of problems of prevention and detection of criminal acts in the area concerned and proposals for their resolution, including of normative nature, necessary for development of competition and improvement of antimonopoly policy, creation of the conditions for stable functioning and security of the economic system as well as for prevention of the harmful effects of threats of a criminal nature.

Keywords: competition, monopoly, government strategic planning, criminal law, cross-sectorial dimension, social responsibility of business, “road map”.

DOI: 10.12737/23700

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Prohibition of Concerted Actions of Economic Entities as the Basis of the Limitation on Freedom of Contract  Pdf 16

T. V. SOYFER

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

This article is concerned with the concept of economic entities’ concerted actions as the special type of collective monopolistic activity. The author evaluates the validity and the effectiveness of the Federal Law provisions “On Protection of the Competition”, which determine the characteristics of concerted actions and reinforce the prohibition on their implementation. It is noted that concerted actions’ features set as a norm by regulators have limitations. Their use for evaluation of the subjects’ conduct can restrict contractual freedom and any other legal possibilities provided to the participants of the property turnover by civil law. The first feature implies a satisfaction of the interests of each person involved in the concerted actions to achieve a common result. This contradicts to the understanding of the general theoretical interests as the subjective-objective category. The second feature indicates the presence of the information regarding the nature of the actions by all participants. Such information becomes known in connection with the public statement of one of them. This feature represents a significant similarity of the concerted actions with other breach of law, such as the anti-competitive agreements. The third feature determines that the actions of each person in the concerted actions of the subject are caused by the actions of other economic entities, and they are not the result of the objective economic factors. It cannot be applied to all the participants of concerted actions. The research of the application practice of concerted actions norms shows that the evaluation of economic entities behavior is based on the objective result of their actions, the subjective side is not usually taken into account. This approach allows the antitrust authorities to use the structure of concerted actions for the qualification of the competition-restricting agreements of economic entities, when the evidence of such cartel agreements is missing. It is proposed to refuse the recognition of concerted actions at the legislative level by the independent composition of anti-competitive infringement.

Keywords: concerted actions, anti-competitive agreements, competition, contractual freedom.

DOI: 10.12737/23701

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Competition in a Market Economy: Limits of Liberty and Restrictions (XI Scientific Readings Devoted to the Memory of Professor S. N. Bratus)  Pdf 16

A. A. AYUROVA, Z. N. BEDOEVA, N. V. BEZHBARMAKOVA, O. V. MURATOVA, V. M. SMIRNOVA, O. A. SIMVOLOKOV

Law Enforcement: from Episodic to the Target Performance  Pdf 16

Yu. A. TIKHOMIROV

doctor of legal sciences, professor, honored scientist of the Russian Federation
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: utikhomirov@hse.ru

In a complex and dynamic process of legal regulation of a special role belongs to law enforcement. It is a mechanism to ensure the systemic exposure of law to socio-economic and other processes. Nevertheless up to now the “situational-sanction” approach prevails in understanding of this phenomenon and it is reflected in the conceptual and social practices. The article attempts to carry out an analysis of law as a public method of anticipatory reflection of reality by means of a systematic mechanism of legal influence on the processes and phenomena. In this mechanism the interconnected legal and behavioral, institutional, regulatory, supervisory, analytical and evaluative elements are highlighted. The target orientation of this mechanism contributes to the achievement of outcomes and a new legal condition. The new approach allows for the correlation between aims, regulators and legal outcomes.

Keywords: law, law enforcement, behavior, regulation, institutions, risks, deviation.

DOI: 10.12737/23702

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Corruption in Russia: System Countermeasure  Pdf 16

V. V. NEVINSKIY

doctor of legal sciences, honored lawyer of the Russian Federation
Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: nevinski@yandex.ru

This article analyzes the nature and the processes of formation of state-legal measures system to combat corruption — one of the characteristics of Russian public life and at the same time one of the most serious threats to the national security of Russia for the past 15 years. The growing importance of targeted state-legal counteraction to corruption at the international and national levels is noted. The fight against economic and administrative corruption in Russia has become systematic since 2002. The majority of international anti-corruption instruments has been ratified and brought into effect. A series of federal laws and decrees of the President of the Russian Federation (2002—2015) has made a definite system of state-legal measures to combat corruption of state and municipal officials. However, the acceleration of this phenomenon in everyday life and public affairs, the instability of the economic, social and political systems, inconsistency in taking measures against representatives of various corrupting groups of population do not permit an effective implementation of the adopted legal acts. Accordingly the required measures should be taken to stabilize the socio-economic and political development of Russia when continuing adoption of the system of state legal measures to prevent and combat corruption.

Keywords: corruption, counteraction, Russia, legislation, a system of measures, problems, prospects.

DOI: 10.12737/23703

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The Rules of Socialist Community Life in Soviet Statutory Acts  Pdf 16

V. F. ANTONOV

candidate of legal sciences
Plekhanov Russian University of Economics
36, Stremyany lane, Moscow, Russia, 117997
E-mail: 5592606@bk.ru

As it is known, in the Soviet period the main public policies were performed under the influence of legally approved rules of socialistic community life. The Article analyzes the ideas and conclusions of soviet lawyers dedicated to the issues of using this conception in law enforcement. A proactive role of rules of socialistic community life was prevention of property conflicts between the participants of legal relations by applying the rules of communistic morality. The regulatory function of this conception was eliminating the loopholes of legal control in conditions of legal uncertainty and consecutive using of ideological enforcement. The rules of socialistic community life were the essential background of legal control and created necessary conditions of civil turnover. The norms of Communist morality determined a set of prohibitions and regulations on the basis of which appropriate legal norms were developed. The paper discusses the legal position of scholars who defend the need for extensive use of this category in various areas of law enforcement.

Keywords: morality, Soviet law, legislation, legal regulation, responsibility, law enforcement, public interests, good behavior, good morals.

DOI: 10.12737/23704

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On the Territorial Levels Issue of Local Government  Pdf 16

V. I. VASILIEV

doctor of legal sciences, professor, honored scientist of the Russian Federation
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: const@izak.ru

The article examines the Constitutional Court decision of December 1 2015 No. 30-P “On the Case on the Verification of Constitutionality of parts 4, 5 and 51 of Article 35, sections 2 and 31 of Article 36 of the Federal Law “Concerning the General Principles of the Organization of Local Government in the Russian Federation” and paragraph 11 of Article 3 of the Law of the Irkutsk Region “On Certain Formation Issues of Bodies of Local Self-Government of the Irkutsk Region” Based on the Inquiry of the Group of State Duma Deputies” in terms of actualization of the problem of the territorial levels of local government. We consider the trend of convergence of local governments with public authorities. The possibility of strengthening of this trend in the different territorial levels of local government is justified. The main emphasis is on the need to preserve the constitutional characteristics of the local bodies of self-government. At the same time it provides the possibility, under current conditions, of temporary transfer of the upper-level local self-government — city and municipal districts — to the governance regime. At that the conditions are defined without which the compliance of such transfer cannot be done. These conditions are: strengthening of local self-government settlement, inclusion of interests and needs of general public in administrative-territorial units etc.

Keywords: Constitutional Court of the Russian Federation, local government, territory, settlement, urban district, municipal district, centralization, functions, tasks, transformation.

DOI: 10.12737/23706

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The Presumption of Good Faith of the Voter as the Basis for Realization of Additional Forms of Voting    Pdf 16

N. Yu. TURISHCHEVA

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

An article is devoted to the questions of the imperative order of registration of voters established by the Russian electoral laws, to the grounds for grating suffrage to voters and to the procedures of voting privilege. The author formulates concept of the presumption of good faith of the voter and reveals its contents through the mechanism of granting active right to the vote to voter, his inclusions in voting rolls, procedures of personal vote for each received bulletin. The comparative analysis of additional forms of voting leads to a conclusion that they include elements of a declarative order of registration under voting with absentee ballots, early voting and voting outside the polling station. Disclosure of essential characteristics of the presumption of good faith of the voter should help to eliminate the contradictions that arise between imperative and declarative procedure of voter registration.

Keywords: voter, active right to vote, registration of voters, electoral district, imperative order of registration, declarative order of registration, presumption, additional forms of voting.

DOI: 10.12737/23707

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Legal Regulation of Areas with Special Conditions for Economic Development in the Russian Federation    Pdf 16

K. D. GASNIKOV, E. V. OBOLONKOVA

K. D. Gasnikov, 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: civil@izak.ru

E. V. Obolonkova, 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: civil@izak.ru

The presented article is devoted to the establishment of areas with special conditions for economic development in the Russian Federation. The authors examine in detail the history of the issue, analyze the modern legislation and international legal instruments in this sphere. Also they consider the legal status of such areas, the status of their residents, describe an agreement on the management and implementation of activities on such territories and draw a conclusion about their legal nature. The study authors conclude that the legislation on areas with favorable legal regimes of entrepreneurial activity needs to be systematized and the number of types of such areas should be reduced.

Keywords: special economic zone, the area with special conditions for economic development, a special regime of entrepreneurial activity, preferential tax treatment, the agreement on the implementation of activities, resident of the special economic zone.

DOI: 10.12737/23708

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Grounds for Pre-contractual Obligations  Pdf 16

A. V. DEMKINA

candidate of legal sciences
1, Okhotny ryad, Moscow, Russia, 103265
E-mail: ale-demkina@ya.ru

The article analyzes the pre-contractual relationship. Since 1st June 2015 new rules of the Civil Code are in force. According to these rules already negotiating parties bear certain responsibilities. The parties should act in good faith when entering into negotiations to conclude a contract, during conduct of negotiations and their completion. The author considers this duty as the content of precontractual legal relationship — obligation. The article also identifies other elements of this relationship: the subject, the subject-matter and the grounds for the creation. The subjects of the negotiations are the legal negotiating partners, the subject-matter — it's actions aimed at negotiating and signing a contract. For the creation of pre-contractual relationship an action should be committed. For example, if the conclusion of an agreement is mandatory for one of the parties, the obligation arises if the party makes an offer. If the parties are free in conclusion of a contract the obligation to negotiate arises when an acceptance is sent on other conditions or when making proposals for negotiations, which can not meet the criteria for an offer. The main is an action indicating the beginning of the negotiation process.

Keywords: good faith, bad faith, principle of good faith, negotiations, pre-contractual legal relationship, pre-contractual obligation, pre-contractual liability, the grounds for creation of obligations.

DOI: 10.12737/23709

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International Tenders: Problems of Terminology  Pdf 16

E. S. BARANNIKOVA

external Ph.D. student
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: e.barannikova@yahoo.com

The article states that currently in the national legal science there are no comprehensive studies of the legal aspects of international tenders. The problems of purchasing relationships with multinational corporations are partially represented in economic science. In this regard the author formulates the conceptual framework required for a full scientific study of international tenders. Key terms required for disclosure of the nature and content of international trading are: procurement legal relationship (purchase), a tender request, an offer, an auction, competitions, tenders, bids, tender documentation, a tender contract, a basic contract, multinational, global corporate purchases of transnational corporations (global sourcing) and third related parties.

Keywords: procurement, trading, international trading, multinational corporation.

DOI: 10.12737/23710

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Criminological Characteristics of the Personality of the Offender Committing Crimes against Sexual Integrity of Minors  Pdf 16

N. Yu. SKRIPCHENKO

doctor of legal sciences, аssociate professor
Lomonosov Northern (Arctic) Federal University
58, Lomonosov ave., Arkhangelsk, Russia, 163002
E-mail: n.skripchenko@narfu.ru

An analysis of expert studies shows the growth dynamics of crimes committed against the sexual inviolability of minors. The highest share is occupied by sexual abuse (44%) and sexual assault (42%). Less common are rape (17%) and carnal connection or other sexual acts with a person under the age of sixteen (3%). Generalized social and demographic characteristics of the person who committed crimes against the sexual inviolability of minors: unmarried, male, aged 20 to 39 years, with low levels of education, without permanent source of income or engaged in unskilled labor. A high proportion of people with mental health problems (mainly in the form of mental retardation) can be explained not by subjective factors but by objective such as mental retardation pronounced symptoms, complicating relationships with people, especially with women. Such persons are much easier to get in touch with the children who they use to satisfy their sexual needs. For the culprits are characteristic disruption of marital relations and alcohol abuse.

Keywords: identity of the perpetrator, crimes against sexual inviolability of minors, mental retardation, family disadvantages.

DOI: 10.12737/23712

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Socio-legal Nature of Multiobjective Crimes  Pdf 16

E. N. KARABANOVA

candidate of legal sciences
The Academy of the Prosecutor General’s Office of the Russian Federation
123002, Russia, Moscow, 2nd Zvenigorodskaya st., 15
E-mail: karabanova.agprf@gmail.com

The article deals with the concept of a multiobjective crime and its criteria, analyzes the doctrine of criminal law point of view. It proves that multiobjective crimes do not include crimes against public security, security of humanity, the interests of public service and service in local government, the interests of service in commercial and other organizations. It illustrates the questions of the relations with other complex crimes, including integral crimes. The article shows the distinction between multiobjective crime and crimes that resulted a multiplicity of effects. As a result the author comes to the conclusion that it is not appropriate to select the facultative object of crime, which does not participate in the qualification of the offense. He pais attention to nonequivalence of concepts “a multiobjective crime” and “a multiobjective corpus delicti” and demonstrates their difference and correlation.

Keywords: a multi-object crime, a complex single crime, a multi-object corpus delicti, the main object of the crime, the additional object of the crime.

DOI: 10.12737/23713

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Separation of Public (Sovereign) and Economic Powers of the State Bodies in Land Relations: Theory, History and Practice  Pdf 16

Yu. G. ZHARIKOV

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: ecology@izak.ru

Administrative management of natural resources exists along with the necessary economic activities. Historically a state extended administrative, fiscal and judicial powers to natural resources, but it became the owner only after creation of its business organizations, which also got a function of destination and collection of payments for natural resources. In modern context the correct operation of these organizations depends on the differentiation of state-owned natural resources between the three known levels of government, as well as from the sovereignty of nature protection authorities and from the extension of antitrust authorities’ control that belongs to the natural management organizations. Tax authorities as a special financial authority, in terms of levy of duty for the use of resources, must act in the framework of its powers. The problem of combination of public natural management organizations' administrative and economic functions remains unsolved. Power and property – the general fundamental concept and their correlation – are a complex legal issue.

Keywords: territorial sovereignty, land tax and business payment for land, nature management organization, private property, administrative and economic functions in nature management, monopoly rights to natural resources, protection of nature, history of land ownership in a society, dynamics (transformation) of ownership rights and property.

DOI: 10.12737/23714

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Encyclopedia of Russian Legal Science in the Persons: the Results of the Last Fifty Years (a book review: Legal Science and Law Russian Ideology: Encyclopedic Dictionary of Biographies and Autobiographies: in the IV. TT. III, IV. Moscow, 2015)  Pdf 16

G. T. CHERNOBEL

The Issues of Ensuring the Quality of the Law  Pdf 16

M. V. ZALOILO

The National Association of Lawyers Specialized in Administrative Law: First Steps  Pdf 16

V. I. KUZNETSOV, O. E. STARODUBOVA

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