Contents of issue # 2/2017

Interpretation (Explanation) of Normative Legal Acts: Concept, Types, Legal Consequences  Pdf 16

G. A. VASILEVICH

doctor of legal sciences, professor
Belarusian State University
8, Leningradskaya st., Minsk, the Republic of Belarus, 220030
E-mail: Gregory_1@tut.by

The article analyzes the legislation of the Republic of Belarus, the positions of scientists and the practice concerning the interpretation (clarification) of the adopted acts by the public authorities. It is noted that the official interpretation is divided into normative (mandatory for certain category of cases) and casual (required for a specific case). Normative interpretation, in turn, has two types: authentic (explanation of a normative act by the body which adopt it), and delegated (the interpretation of the norm by the competent authority by the delegation to him of the relevant rights). The main attention in the article was paid to the existing defaults, in particular, bringing to responsibility of legal entities and individuals when they have acted in accordance with the answer of the officials, but the superior body was not agree with this answer; the defaults of the contradictory practice of bringing to the attention of the adopted acts of interpretation, disputes regarding the authority, who has the possibility of clarification of the act etc. The author emphasizes the need to improve the existing legislation and makes appropriate suggestions.

Keywords: interpretation (explanation), types of interpretation, the consequences of interpretation, inadmissibility of giving the act retroactive, liability of officials.

DOI: 10.12737/24095

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Sovereignty as a Natural Public Right: Modification of Ideas about the Nature and Character of Sovereignty, about the Stages (generations) and Its Scientific Research  Pdf 16

Zh. I. OVSEPYAN

doctor of legal sciences, professor
Southern Federal University
105/42, Bolshaya Sadovaya st., Rostov-on-Don, 344006
E-mail: Ovsepyan-G-I@yandex.ru

The article presents the author's differentiation of the stages (generations) of sovereignty as a philosophical doctrine and the social practices carried out by the criterion of correlation with the subject (bearer of properties) of the sovereign state authority. The author has summarized the characteristics (properties) of sovereignty which are existing in state-legal science and time ideas about them in different countries. The main attention in the article was paid to the analysis of directions of research of the sovereignty in constitutional states period. In this regard the author substantiates the concept of sovereignty as a natural public right, “maturing” in a process of state-legal development of society. During the process of summarizing of the available and political and legal Sciences of different countries and time views on the list of characteristics (properties) of the sovereignty the author of the article gives a number of definitions of sovereignty as a natural right belonging to the state as a whole (as a complex union) as well as a natural right of state organized people, i. e. public origin right.

Keywords: stages (generation) of the exercise of sovereignty, state sovereignty, sovereignty of law, sovereignty of the people, the sovereignty and state representation, sovereignty and theory of federalism, natural public right.

DOI: 10.12737/24097

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Institutionalization of Civil Society in Russia: Historical and Theoretical Aspect  Pdf 16

E. E. NIKITINA

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: const@izak.ru

The article is devoted to the problems related to the development of the civil society in Russia, there is also a debate about its existence in the history of Russia. The author concluded that the essential characteristic of the development of civil society is its institutionalization. The author believes that the civil society is a subject of study of different science, and the results of such study can have really opposite conclusions. The article deals with the definitions of civil society, which are used in humanitarian sciences. From a legal point of view, the study of the civil society is an analysis of the shape and system of the relevant relations regulated by the norms of law. The importance of formulating of the definition of the civil society by legal science allows revealing its legal content. The author discusses the concept of “civil society”, which is formulated in legal literature, and concludes that it has broad and narrow meanings.

Keywords: civil society, institutions of the civil society, definition of the civil society, institutionalization, constitutional rights.

DOI: 10.12737/24098

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On the Constitutional Process  Pdf 16

I. I. ILICHEV

doctor of legal sciences, doctor of technical sciences
Belgorod Law Institute of the Ministry of Internal Affairs of the Russian Federation
56, Gorky st., Belgorod, Russia, 308600
Е-mail: ilicigor@yandex.ru

The constitutional process is seen as a complex phenomenon of legal life. In a broad interpretation of this term is the history of constitutionalism (constitutional reforms, changing constitutions) in a given country, in a narrow interpretation — it is an assemblage of the stages of the life cycle of the individual constitution in their natural sequence, the history of the particular constitution. The history of constitutionalism in Russia was presented in a condensed form, this history links with the objectives and the procedure of adoption of Russian Constitution. Study of the procedure side have allowed to the author to identify and describe, including in graphic form, the main stages of the life cycle of the individual Constitution, to show the discrete nature of the modernization of existing legal constitutions, their changes and ongoing development of the real (actual, unwritten) constitution as a result of creativity of the free people. There are identified and described eight differences between legal and actual constitutions, stimulating role of the actual Constitution for the development of the legal constitution and constitutional reforms, a potential threat of the actual Constitution for the security of the country.

Keywords: constitutional process, legal constitution, actual constitution, relationship between the legal and actual constitutions, lifecycle of the constitution.

DOI: 10.12737/24113

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Role of the Doctrine in Legal Drafting and Enforcement (Evidence from the Constitutional Court of the Russian Federation)  Pdf 16

T. E. SHUBERT

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: Shtefania2014@gmail.com

The article discusses the role of the doctrine in the activities of the Constitutional Court of the Russian Federation and its influence on the formation of its legal positions, the use of the principles of law in the interpretation and formation of legal positions of the Constitutional Court. According to the author, such problems of legislation as the lack of draft laws, which leads to the multiple amendments of the legislation, the lack of consistency in the legislation, the multiplicity of laws, determined in some degree by the lack of use of the legal doctrine, which must take its place in the development of regulations. The adoption of the Federal law “On normative legal acts in the Russian Federation” was proposed by the author of the article as a system-wide measures for solving the problems. According to the author it can allow to overcome legal conflicts between the law and other regulations, can create a strong normative framework for processes of lawmaking and law enforcement, can contribute to the prevention of violations of legality by the activities of state bodies, business structures and other organizations, to strengthen the guarantees of realization of rights and legitimate interests of citizens.

Keywords: doctrine, case law, Constitutional Court of the Russian Federation, principles of law, doctrinal interpretation of legal norms.

DOI: 10.12737/24114

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Russian Language as the State Language of the Russian Federation and Contemporary Russian Literary Language (in the Framework of Implementation of the Federal Law “On State Language of the Russian Federation”)  Pdf 16

D. V. RUDNEV, T. S. SADOVA

D. V. Rudnev, сandidate of philological sciences
St. Petersburg State University
11, Universitetskaya emb., St. Petersburg, Russia, 199034
E-mail: rudnevd@mail.ru

T. S. Sadova, doctor of philological sciences
St. Petersburg State University
11, Universitetskaya emb., St. Petersburg, Russia, 199034
E-mail: tatsad_90@mail.ru

The paper deals with the problem of correlation between the concepts of “Russian language as the state language” and “contemporary Russian literary language” in connection with the implementation of the federal law “On the state language of the Russian Federation”. The absence of definition of “Russian language as the state language” in the text of the law raises the question of lawfulness to use all norms of the modern Russian literary language within state communication. By analyzing the sphere of Russian language usage as the state language of the Russian Federation and the Russian literary language, the authors conclude that these spheres coincide only partially. Consequently, linguistic characteristics, and therefore norms of Russian language as the state language of the Russian Federation and the Russian literary language may not coincide exactly. The heterogeneity of norms of the Russian literary language also makes them difficult to use within Russian language as the state language of the Russian Federation. The observations and recommendations can be used in constructing the legal definition of “Russian language as the state language”.

Keywords: Russian language as the state language, the Russian literary language, norm, public communication, legal communication.

DOI: 10.12737/24115

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Workers’ Labour Rights in the Context of Economic Policy  Pdf 16

A. F. NURTDINOVA

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

In the periods of economic instability a state tends to use variable instruments of economic policy to activate business life, to decrease unemployment rate etc. Among those instruments some scholars indicate reduction of the employees’ rights. There are four categories of employees’ rights which are differentiated on the basis of their connection with the employers’ economic interests and labour costs. In this article possibility of changing every group of rights in the periods of economic instability is considered. The author includes these rights as following: the right predetermined by the values of the content of a civilized society and the rule of law and not connected with the economic interests of the employer, its expenditures and economic indicators; rights directly related to the employer's costs and are characterized by the presence of certain quantitative component; rights that do not have a direct link with the economic interests of the employer, however can influence them indirectly; rights associated with the creation of representative bodies and organizations, participation in the system of social partnership in the consideration of collective labor disputes, including the organization of strikes.

Keywords: economic policy, economic crisis, employers’ economic interests, labor rights, reduction of the labour rights’ level.

DOI: 10.12737/24116

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Social Legal Mechanisms of Work Motivation  Pdf 16

T. N. LOBANOVA

сandidate of psychological sciences
The National Research University “Higher School of Economics”
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: lobanova.tatiana@gmail.com

This article examines the system approach to the mechanism of work motivation based on the motives assigned by the environment – by economic and social-lawful factors, on the internal motives of worker established in the course of his/her vital activity, and the extrinsically formed motives of working activity. Under the influence of these motivational factors the inner position, employee personal predisposition towards different objects and situations and his/her willingness to act in some way or another are formed. Therefore it is important to concentrate efforts of economists, sociologists, psychologists and lawyers on the appropriate methods of external influence on work motivation. The case study also provides with the development of motivational processes in the spheres of industry, science and management. The present paper provides with the recommendation in the issue of the formations and lawful guarantee of motivational installations and standards and working interests and values.

Keywords: legal regulation, work motivation, property relations, tax system, social and legal environment, the structure of motives, norms and directives, interests, values, incentives.

DOI: 10.12737/24117

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Legal Issues of Attestation of Employees  Pdf 16

L. A. EGOSHINA

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

The author analyses legal acts and judge-made laws, devoted to attestation of employees. Basic issues relating the procedure of its performance are revealed. The main issue is the outdated legislation, which regulates attestation and does not correspond to modern realities. The article also inspects judge-made laws, which show a significant number of violations by employers in attestation process. Such violations include local acts which are not clearly set and not provided in rights and obligations of attestation commission, requirements concerning acquaintance of attested employees with a list of questions, which are planned for the attestation and etc. The author suggests some solutions for the raised issues.

Keywords: attestation of employees, attestation commission, inconsistent with job, labor law.

DOI: 10.12737/24118

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Modern Contents of the Theory “Administrative and Legal Regime”  Pdf 16

A. F. NOZDRACHEV

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: adm1@izak.ru

The present article studies the nature and the concept of the administrative and legal regimes, which are an important element of the Russian law and order. The relationship between the concepts of administrative and legal regulation, legal regime, administrative and legal regime is studied. The signs of administrative and legal regimes have been found out and the characteristics of security procedures have been provided. Also this work determines the features of the legal structure of administrative and legal regimes. In author’s opinion the basic legal act that establishes the administrative and legal regime should be a federal law, as these rules regulate multilevel public relations, which deal with a wide and diverse population and are designed to protect the public from illegal encroachments. All legal acts forming the legal construction of administrative regime should be harmonized with each other, organically linked and merged into a single system formed by different kinds of normative legal acts.

Keywords: administrative and legal regulation, legal regime, administrative and legal regime, signs of administrative and legal regimes, legal structure of administrative and legal regimes, security procedures.

DOI: 10.12737/24119

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Legal Defects of the Principle of Performance Use of Budgetary Funds  Pdf 16

O. G. VORONTSOV

post-graduate student
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: o.g.vorontsov@yandex.ru 

The article deals with the problems of implementation of the principle of performance use of budgetary funds. The paper concludes that in the budget law theory there is no common understanding of the category «performance». The author analyzes the legal formulation of the principle of performance use of budgetary funds from the standpoint of external public audit bodies (control). In addition, the author takes into consideration international documents in sphere of public audit and justifies the legal defects of the principle. The author also suggests possible ways to overcome them. It’s emphasized that the existing legal regulation contains some elements of legal mechanism for implementing the principle of performance use of budgetary funds and it doesn’t provide the full achievement of the objectives laid down during the establishment of the principle. This is due to its declarativity. It concludes that the starting point for the creation of the valid mechanism for the implementation of the principle of performance use of budgetary funds is the formation of accurate, scientifically reasonable and legislatively established concept of performance use of budgetary funds as well as establishing in law the necessary guidelines for evaluating of performance use of budgetary funds. It should be consistent with the development of unified methodological approaches by external public audit bodies (control) for performance auditing.

Keywords: principle of budget law, performance evaluation, legal defect, financial control, performance audit.

DOI: 10.12737/24120

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Administrative Court Procedure Code of the Russian Federation: the Danger of Legal Idealizm  Pdf 16

A. V. ORLOV

candidate of legal sciences
The Central branch of the Russian State University of Justice
95, 20-letie Oktyabrya st., Voronezh, Russia, 394006
E-mail: OrlovAV@femida.vrn.ru

The author of this polemical article defends the opinion that in contrast to euphoria on the adoption of the Administrative Court Proceedings Code of the Russian Federation, the interpretation of the role and place of the latter in the national legal system has a tendency to unreasonable and unjustified exaggeration approaching legal idealism. However, the strategic act of administrative legal proceedings is quite far from the ideal: it is not finished in methodological understanding and is, to a great extent, full of norms, institutions, and constructions artificial in their legal nature. The Code objectively needs to be improved, though undoubtedly, it positively solves a number of legal tasks for the purposes of further development of the administrative legal proceedings. In the author’s opinion, the Administrative Court Proceedings Code of the Russian Federation would be a proper reflection of the procedural form of the administrative legal proceedings only in the case of its organizational unity with the system of independent administrative courts. According to the approach suggested, the administrative legal proceedings must be conducted exclusively by the administrative courts in accordance with the rules as provided by the Administrative Court Proceedings Code of the Russian Federation.

Keywords: justice, legal idealism, Administrative Court Procedure Code of the Russian Federation, administrative legal proceedings.

DOI: 10.12737/24121

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On the Question of the Formation of the Institute of Expert Initiative in the Production of Forensic Enquiry in the Russian Federation  Pdf 16

S. L. MELNIK, Ya. D. REVENKO

S. L. Melnik, candidate of legal sciences
Smolensk State University
4, Przewalsky st., Smolensk, Russia, 214000
E-mail: flam20@rambler.ru

Ya. D. Revenko, candidate of legal sciences
Smolensk State University
4, Przewalsky st., Smolensk, Russia, 214000
E-mail: flam20@rambler.ru

The Criminal Procedure Code of the Russian Federation 2001 clearly divided the participants of criminal proceedings into four groups, spreading the subjects of proof and other persons who include professionals and experts. At the same time an art. 86 of the Code of Criminal Procedure does not relate experts and specialists to subjects having the right to collect evidence, even in the order of initiative. The article analyzes the procedural status of a forensic expert from Peter I Military article, the Statute of Criminal Procedure to the present day, and it concludes that departmental legal acts since their rise allow an expert to independently gather evidence for the ongoing examination with insufficient data. From our point of view it is a gross violation of the law and such actions should lead to the inadmissibility of expert opinion and received evidence because of the violation of the procedural view mode. We consider that departmental regulations need to be aligned with the current criminal procedural law.

Keywords: criminal procedure, criminal participants, process, departmental regulations, collection of evidence, expert initiative, inadequate evidence.

DOI: 10.12737/24123

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Supranational Law: Main Features  Pdf 16

V. E. CHIRKIN

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

This article discusses the new phenomenae: supranational (suprastate) integrational public legal formations and a kind of unfinished supranational (suprastate) law. The integration of economic and political entities sometimes have only elements of regional international law and embryos of a peculiar similarity of internal legal regulations, but the European Union has formed unfinished law of supranational nature, it is identified the nature of that law and its features. In particular: the emergence of supranational law on the basis of concordance of the wills of the Member States and its subsequent development of the activities of law-making institutions of the EU; complex and incomplete character of EU law; the supremacy of EU law in relation to the domestic law of the Member States; operation of EU legal acts on the territory of the Member States is direct, without transformation of EU law into national law of the Member States; original methods of application of EU law.

Keywords: modern integrative entities, supranational law, the european union, features of supranational law.

DOI: 10.12737/24124

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Transformation of System of the Principles of Legal Proceedings in Case of Implementation of Judicial Reform  Pdf 16

V. P. KASHEPOV

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: crim@izak.ru

Article is devoted to problems of enhancement of legal regulation of the organization of judicial activities and the procedural legislation. The special attention in it is paid to system of the principles of legal proceedings as constitutional basis of judicial authority. The system of the principles of legal proceedings represents a framework of legal regulation of the organization and activities of all judicial system. The principles of legal proceedings are considered in article as the difficult organization-legal designs having own structure, specific manifestations in out of, close ties and coordination with the principles of justice, the features of sudoustroystvenny and procedural regulation. Implementation of the principles of legal proceedings is directed to goal achievement and the tasks set for institutes of judicial authority the Constitution of the Russian Federation, the System of the principles of legal proceedings constantly develops, supplemented with new establishments and signs. These changes are directed to enhancement legal regulation of the organization of judicial system, to upgrade of activity of the courts, ensuring availability of justice, increase of level of its efficiency in protection of the rights and freedoms of citizens.

Keywords: judicial system, legal proceedings types, principles of legal proceedings, implementation mechanisms, upgrade of judicial activities, procedural codes.

DOI: 10.12737/24125

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Formation and Development of Legal Regulation in the Sphere of Anti-corruption in the Republic of Crimea  Pdf 16

T. L. KOZLOV

candidate of legal sciences
The Academy of the Prosecutor General's Office of the Russian Federation
9, Gogol st., Simferopol, Russia, 295011
E-mail: t-kozlov@yandex.ru

An author researches organizational and legal framework for anti-corruption, problems of legal regulation and enforcement in the field of combating corruption in the Republic of Crimea and Sevastopol. An article contains results of study conducted in 2014-2016, opinions of prosecutors, state and municipal employees of the Republic of Crimea and Sevastopol about the level of corruption in the region and the effectiveness of the anti-corruption measures. Negative aspects of duplication of federal law standards in legal acts of the subjects of Russian Federation without taking into account the specifics of legal relationships emerging in a particular region are considered. The article describes the problem of establishment and regulation of anti-corruption standards in the organizations founded by the Russian Federation and municipal entities. The author proposes solutions of mentioned problems, ways of improvement of legislation and practice of preparation of regional regulatory acts. Amendments to the Federal Law "On Combating Corruption" are proposed and justified in terms of the spread of anti-corruption restrictions and prohibitions on individuals holding certain positions in the organizations established by the subjects of the Russian Federation and municipal entities.

Keywords: Republic of Crimea, city Sevastopol, anti-corruption, prevention of corruption offenses, the prosecution authorities, anti-corruption standards, requirements, prohibitions, restrictions, a conflict of interest.

DOI: 10.12737/24126

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Some Notes on the Book “Constitutional Reform in the Modern World”  Pdf 16

G. G. ARUTYUNYAN

Legal Conflicts in the Modern World (Review of the Meeting of “Law” Section of the Central House of Scientists of the Russian Academy of Sciences)  Pdf 16

S. B. BALKHAEVA, F. V. TSOMARTOVA

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