Contents of issue # 4/2017

The Place and the Role of Legal Technology in Law-Making Policy of Modern Russia


A. V. Malko, doctor of legal sciences, professor, honored scientist of Russian Federation
Saratov branch of the Institute of State and Law of the Russian Academy of Sciences
135, Chernyshevsky st., Saratov, Russia, 410028

M. A. Kostenko, candidate of legal sciences, associate professor
Southern Federal University
22, Chekhov st., Taganrog, Russia, 347928

The article analyzes the place and the role of legal technologies in law-making policy that provides a strategy for legal development. Legal technologies are needed to make it a reality on a science-based content and high-quality implementation in order to achieve the required objectives of a legal form. The variety of approaches of scientists to establish meaningful boundaries of legal technologies creates certain difficulties and requires a speedy resolution, as in the future it will increasingly discourage modernizing problems solving in law. Strengthening technological support the normal course of the legal life of society will contribute to the production of qualitatively new processes in all kinds of legal activities and create conditions for the improvement of the legal system. The interaction of legal technologies and law-making policies are aimed at ensuring the qualitative modernization of the legal system in Russia and management of the legal reality. An important factor in optimizing the design process rights in favor of normative regulation is the draft law “On normative legal acts of the Russian Federation”, which will streamline the rules for the preparation of draft regulations, to improve the stages of their “life” cycle and increase the effectiveness of law enforcement.

Keywords: law-making policy, law-making, legal technology, legal technique, legal decision, legal act, legal strategy, legal tactics, the draft law “On normative legal acts of the Russian Federation”.

DOI: 10.12737/article_58e39ece79a7d5.56302408

Defects of Legislative Technique as Obstacle to Ordinary Interpretation of the Law


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

In the present article some defects of legislative technique (in their historical development) which serve as an obstacle for effective ordinary interpretation of law by citizens are considered. In particular, the defects like violation of border between legislative and sublegislative regulation, the inflation of law matter and its manifestation which are expressed in violation of the principle of the reasonable length of the sentence and inflations of legal terminology are considered. Imperfection of legislative technique is considered as a prerequisite of transition of a presumption of knowledge of law to fiction of knowledge of law, and also as one of the reasons of an elitarization of knowledge of the law, decrease in the level of legal culture of citizens. According to the author, it is also expedient to consider the creation of the legislation, which is qualitative and available to ordinary interpretation — “an attractive legal framework” in Russia, as one of significant strategic tasks in the conditions of integration strengthening of Russian legal framework and other countries of the Eurasian Economic Union and an intensification of legal interaction within BRICS, SCO and other international formats. The article offers ways to improve the quality of ordinary interpretation of laws by introduction of institute of focus group into the mechanism of preparation of bills.

Keywords: ordinary interpretation, inflation of legal matter, defects of legislative technique, article glossary, presumption of knowledge of the law.

DOI: 10.12737/article_58e39ece757f30.35578826

Inquiry of the Deputy of the Municipal Representative Body: Legal Regulation and Practice


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

The article is devoted to an important component of the legal status of a deputy of a municipal representative body. The right of deputy inquiry is an effective mean of control by the representative body of the municipality for the execution of decisions taken by the representative body. This takes on key significance to enhance the role of representative bodies of municipalities as leading and major organizational structures in the system of a local government. The author of the article analyses the modern state of legal regulation of deputy inquiry and substantiates proposals aimed at its improvement. The question is about the definition, the content, the circle of addressees of the inquiry, the procedure of inquiry and replying to it, the content of the legal reactions of the representative body of the answer of the official to whom a request is directed, and on results of consideration of this response. The article proposes to regulate the right of deputy inquiry at the federal level.

Keywords: local self-government, representative body of municipality, deputy inquiry, the control for local administration, the effectiveness of a municipality, publicity.

DOI: 10.12737/article_58e39ece7b8fb4.47740052

Constitutional Legal Personality of the “People” as the Owner of the Title to Land


candidate of legal sciences, associate professor
Saratov State University
83, Astrakhanskaya st., Saratov, Russia, 410012

The article deals with the constitutional legal personality of the people as a member of the constitutional relations. It is noted that the people as the member of the constitutional relationship may not have legal status as separate individuals. It determined that the overall constitutional legal personality of the people lies in the fact that it is the bearer of sovereignty and the source of power in the country. It is concluded that the category of the “people”, based on the meaning of the Constitution of Russia is not uniform in its content, which leads to the conclusion that the separate “peoples” may have a special constitutional legal personality, including a holder of the title to land. The content of paragraph 1 of Article 9 of the Constitution of Russia allows us to conclude that it is enshrined in the constitutional right of peoples to the land as the basis of life and activity. Special constitutional legal personality can be formed in individual nations, which can be isolated from the whole multinational people on various grounds: as living in a certain area (Federal District of the Russian Federation, ecologically safe zones) or as having a special constitutional provision (indigenous peoples of Russia).

Keywords: non-national state, participants in constitutional legal relations, constitutional land title, peoples’ constitutional legal personality.

DOI: 10.12737/article_58e39ece7da9f3.15612606

Evaluation of the Costs to Comply with Standards and Rules Regulating Corporate Governance


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

Overcoming the instability of the legislative base to secure the Russian business environment to a large extent is achieved through regulatory impact assessment, evaluation of costs of compliance with the regulatory standards and the rules of corporate governance. On the basis of the recommendations of the OECD Council on Regulatory Policy and Public Administration the article formulates conclusions regarding the use of the compliance standards and regulatory rules costs evaluation in deciding on the form of new regulatory decisions, as well as in identifying options to reduce existing regulatory compliance costs. Among such an assessment can be used to develop estimates of the evaluated costs associated with the adoption of new regulations and the forecast assessments in management. Compliance costs (labor costs, overheads, equipment costs, material costs and the cost of external services) are the costs incurred by companies or other entities required to comply with regulatory requirements. The article describes the process of estimating the costs to comply with the standards and regulatory rules in the company and formulated the key issues that need to be highlighted in the analysis of the cost of compliance assessment in relation to the business side of the body authorized to assess regulatory impact assessment.

Keywords: regulatory impact assessment, entrepreneurship, legislation, compliance, corporate governance, OECD, standard costs, costs estimating.

DOI: 10.12737/article_58e39ece7f8fd9.35876323

Interpretation of the Contract in Relation to the Bargain and the Obligation


doctor of legal sciences, professor, honored scientist of the Russian Federation
Russian State University of Justice
69, Novocheremushkinskaya st., Moscow, Russia, 117418

With due account of the Russian civil law and procedure classic E. V. Vaskovsky’s methodological approaches the author examines the provisions of the Civil Code of the Russian Federation, in particular the co-relation of the contract, the bargain and commitment. The author concludes that the contract is the central concept of comprehensive civil and business law which acts as a more general concept than the concept of the bargain. The contract has a capacious content that does not fall under general theoretical generalizations, as it can act in different capacities directly attached to the Civil Code of the Russian Federation and other laws as contract types (an accession agreement, an option agreement, a preliminary agreement, etc.). Moreover the article explores the obligation of the contract and commitment. Also it is concluded that the obligation related to business activities is a type of a contract along with the civil one. The author formulates one of the key concepts of corporate law – corporate commitments, and highlights the signs that allow to distinguish them from other commitments. The author criticizes the attitude according to which the corporate contract is equal to the civil one, despite the fact that the general provisions on obligations apply to the corporate requirements, the corporate contract does not become a civil one.

Keywords: obligation, interpretation, entrepreneurial contract, the obligation related to business activities, corporate relations, corporate contract, corporation, liability, corporate liability, contract, bargain, corporate contract, the entrepreneurial agreement.

DOI: 10.12737/article_58e39ece817766.11200385

Scientific Proposals for the Definition of the Term “Technology Transfer”


candidate of legal sciences
The Institute of Legal Expertise
9/3, Geroev Panfilovtsev st., Moscow, Russia, 125480

At present the term “technology transfer” is widely used in the program documents of the Government of the Russian Federation and other federal and regional executive bodies. State programs of technology transfer has serious public finance and everywhere under the scientific and educational centers are established technology transfer centers. However at the same time the legal aspects of the technology transfer are insufficiently studied in the domestic science. The current Russian legislation does not delineate the term “technology transfer”. In the domestic legal literature there is not only a generally accepted definition of this term, but also a common understanding of the legal nature of the processes of technology transfer. The author gives the results of the analysis of legal relations in the sphere of technology transfer, which helps to identify the mandatory elements that reflect the essence of these legal relations and optional elements that accompany technology transfer, as well as to derive from the subject of regulation of the legal institution under consideration non-contractual legal relations (nontransfer access to technology ). The author defines the transfer (transfer) of technology as following — a contractual relationship for the transfer of the right to technology in whole or in part between the holder of the right (rights holders) and the interested person (interested parties) through the use of the contractual elements of the right of alienation and (or) by means of license agreement in transferring rights to the results of the Intellectual activities that are part of the technology.

Keywords: technology transfer, technology transition, unified technology, conceptual apparatus, intellectual property.

DOI: 10.12737/article_58e39ece836e75.34264006

Is the Experience of the European Union Useful for Harmonizing the Labor Legislation of the States of the Eurasian Economic Union?


S. Yu. Golovina, doctor of legal sciences, professor
Ural State Law University
21, Komsomolskaya st., Yekaterinburg, Russia, 620137

N. L. Lyutov, doctor of legal sciences, associate professor
Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995

The article analyses regional integration processes occurring on the territory of Eurasia and their impact on the development of the labor law of the member states of the Eurasian Economic Union (EAEU). The processes of harmonization of the labor legislation of the European Union (EU) and the Eurasian Economic Union are compared. The authors consider the problems arising on the path of labor legal integration within the framework of the EAEU. The authors give an assessment of the prospects of harmonization of the labor legislation of the EAEU member states and assess the risks in the sphere of integration of labor law within the framework of the EAEU, taking into account the experience of the EU. The conclusion is drawn that the integration processes in the field of labor law in the EU and the EAEU are different. If the EU in the field of harmonization of labor law deals with heterogeneous countries with very different political and legal traditions, the labor law systems in the EAEU have, to a large extent, cosmetic differences. Despite the fact that from the technical point of view harmonization and even unification of the labor legislation in the EAEU is not a big problem, this process are difficult from the political point of view. Nevertheless, the experience of the EU shows that the creation of a common economic space is a powerful incentive for the integration of member states in the legal and political spheres. In this regard, the authors expect the development of harmonization of labor legislation in the member states of the EAEU in the medium term.

Keywords: labor law, Eurasian integration, Eurasian Economic Union, European Union.

DOI: 10.12737/article_58e39ece9c1c04.35188602

Prohibition of Discrimination in the Sphere of Labor Relations


postgraduate student
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

This article deals with the problems of legislative regulation of the prohibition of gender discrimination in labor relations. It is noted that modern legislation against discrimination in Russia is characterized by a plurality of terminology and the absence of a uniform approach to the establishment of legal prohibitions and regulations related to ensuring equality, the abstractness of the relevant substantive rules, the prevalence of material norms over procedural norms. Using the concept “discrimination” the legislator does not disclose its meaning, which in many respects causes the occurrence of disputable situations in practice. Legislation lacks a clear differentiation of discrimination in terms of the degree of openness of the employer's actions to direct and indirect, where neutral at first glance conditions, criteria or practical activity put a person at a disadvantage. Also mechanisms of the protection and restoration of violated rights of employees who have been subjected to discrimination are examined. The author draws attention to the considerable complexity of proving the facts of discrimination. At the same time the level of theoretical comprehension of the problem of discrimination lags behind the existing needs of legal practice, which leads to the non-frequent application of workers for judicial protection. As a consequence in the Russian judicial statistics there are practically no disputes about discrimination at work. The article contains a number of proposals for improving labor legislation in this area, taking into account international and foreign practices.

Keywords: labour legislation, equality, discrimination, protection against discrimination.

DOI: 10.12737/article_58e39ece856fb2.16965220

Theoretical Approaches to the Definition of Tax and Levy: the Economic and Legal Aspect


doctor of legal sciences, professor
North-Caucasian State Humanitarian and Technological Academy
36, Stavropolskaya st., Cherkessk, Russia, 369000

The article deals with the problem of legal definition of tax and levy. Longstanding discussions about the legal nature of the levy, its delimitation from tax and non-tax fiscal payments have acquired wide scientific interest in connection with the legislative introduction of the concept of trade fee and simultaneous introduction of changes in the definition of levy. As a result the relatively harmonious legal construction of the collection was violated: the legislator endowed a levy with tax features. The trade fee is the legislative precedent of the levy which is essentially a tax. The introduction of such a mandatory payment is a veiled form of strengthening taxation, in contrast to the introduction of a new tax, which shows this absolutely clearly. In such a situation, theoretical approaches to the definition of tax and levy are very significant. Initially the definition of a levy needs to be changed, but in the context of the implemented amendments, this need became particularly urgent. If we proceed from the thesis that the tax is a pure category “for the state” and a levy is also set “for the payer”, then it makes sense to clarify in the definition the purpose and determining of a levy. The taxpayer has the right to know in advance what is the purpose of the new fee. It is obvious that such a goal should fully corresponds to that indicated in the legal definition of the fee.

Keywords: legal definition of tax and levy, tax and duty signs, tax and non-tax payments, purpose and functions of tax and levy, taxpayers, payers of collection, budget.

DOI: 10.12737/article_58e39ece8778b4.27372787

Anti-Corruption in the Sphere of State Governance


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

Despite all anti-corruption measures taken by the state in the state this offence continues to be one of the main threats to national security of the Russian Federation. Meanwhile corruption offences in the sphere of state governance are especially danger. Officials use their powers for unlawful activity, taking decisions based on personal relations in spheres out of their competence, performs their duties only for extra compensation and so on. As the result nation loses the confidence in state authorities, its bodies and representatives. The article is devoted to some questions of anti-corruption in the sphere of state governance. The attention is paid to problems of improving of legal bases of prevention and revealing of the conflict of interests, and also to the control for expenditures and legal education of state officials. Based on the analysis of the regulatory framework and law enforcement practices the author suggests possible ways of overcoming the causes and conditions contributing to corruption offenses in the sphere of public administration.

Keywords: state, corruption, corruption risks, conflict of interests, declaring of income and expenditures, state officials, legal culture.

DOI: 10.12737/article_58e39ece898507.47554981

Basis of Fair Punishment


candidate of legal sciences, associate professor
Ogarеv Mordovia State University
68, Bolshevistskaya st., Saransk, Russia, 430000

General principles of sentencing define universal requirements for assignment of criminal punishment. The general nature of the requirements dictated by the need to comply with the principles of criminal law does not mean their abstractness. Individualization of punishment in accordance with special rules of the imposition of penalty (Articles 62—70 of the Criminal Code of the Russian Federation) is impossible without taking into account the general rules. The author of this article highlights the specific legislative enactments and their relevance for the appointment of a just’ punishment. The author analyses the practice of the Supreme Court for 2011—2015 on compliance by the courts of general principles of sentencing; reveals typical examples of non-fulfillment of requirements identified item. 60 of the Criminal Code. The vision of the problem was explained taking into account the explanations of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the practice of appointing the criminal courts of the Russian Federation courts” of December 22, 2015 No. 58. The author of the publication expresses the hope that the specification of the concept of "fair punishment" will lead to a reduction in the number of convictions, canceled or modified due to their injustice.

Keywords: punishment, justice, sentencing, the general principles of sentencing, the nature and degree of public danger, the guilty person, mitigating and aggravating circumstances punishment.

DOI: 10.12737/article_58e39ece8b9d62.10753526

Rules of Qualification of Crimes Committed in Complicity


candidate of legal sciences
Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995

The article is devoted to one of the sections of the criminal-legal science – the doctrine of complicity in the crime. The object of the research is the norms of the Criminal Code of the Russian Federation for complicity in the crime and judicial practice of their application. This study is focused on rules of qualification of crimes committed in complicity. As the author notes, there are very common errors in the process of the criminal legal evaluation of complicity caused by incorrect defining of the participation form and by the use of improper guidelines. In addition, such aspect as a particular qualification did not receive the systematic coverage in the legal literature. The present study is aimed at systematization and improvement of the qualification rules of crimes committed in complicity, in order to develop their comprehensive list of needed attorney to work on criminal cases. The author formulates the theoretical definition of the concept “form of complicity” and classification of complicity, which includes six forms. Also the author shows the features of qualification for each of these six forms of complicity. Controversial issues arising in judicial practice in the application of qualification rules of crimes committed in complicity are: qualification of mediation in bribery; qualification of complicity in a crime with the special subject in the form of an organized group. In order to improve the law enforcement in cases on complicity the author has made some suggestions to clarify the explanations of the decisions of the Plenum of the Supreme Court of the Russian Federation, devoted to the interpretation of the rules on such crimes as theft, burglary, robbery, embezzlement, bribery.

Keywords: complicity, qualification of crimes, forms of participation, organized group, intermediation in bribery, misappropriation or embezzlement, special subject of crime, criminal law.

DOI: 10.12737/article_58e39ece8f5725.38948020

Methodology of Corruption Risk Assessment of the Criminal Procedural Law of Evidence  


A. F. Lubin, doctor of legal sciences, professor
Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russian Federation
3, Ankudinovskoe Shosse, Nizhny Novgorod, Russia, 603144

A. Yu. Afanasiev, adjunct
Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russian Federation
3, Ankudinovskoe Shosse, Nizhny Novgorod, Russia, 603144

The corruption potential of the criminal procedure law, the lack of a legal methodology of the anti-corruption expertise of legal acts and their drafts are showing the relevance of the problem of corruption risks in the criminal procedure law of evidence. Currently, there is no any representative of the criminal procedure science who has conducted such research. This article discusses some features of methods to identify, assess and neutralize the corruption risks of the law of evidence in the criminal process. However, the main attention in present article was paid on complexities of identify such risks as well as on their evaluation after the detection. The authors note that an effective way of assessing corruption risks in the criminal procedure law of evidence is a method of statistical multivariate analysis, namely cluster analysis of corruption-norms of the criminal procedure law of evidence. This method allows to assess corruption risks, as well as to design a hierarchical system of data standards for subsequent changes to reduce and neutralize the corruption. Each level of such a hierarchy needs to be addressed — from the use of legal techniques to the complete elimination rules. The article describes the main stages and content of this procedure.

Keywords: cluster analysis, corruption risk, corruption factor, methods of corruption risk assessment, criminal procedure, law of evidence.

DOI: 10.12737/article_58e39ece922808.05583566

Status of a Detainee as a New Participant in Criminal Proceedings


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

The article is devoted to the use of such measures of criminal procedure compulsion as a detention. The author analyzes some of the aspects of ensuring rights, freedoms and lawful interests of individuals. There also the problems that exist in the practice of law enforcement were disclosed in the article, as well as the human rights violations during the detention, their causes and conditions. The author examines the nature of such concepts as “suspicion”, “suspect”, “arrest”, “detained”. The author criticizes the concept of “suspect”, notes its shortcomings. The importance of such a principle as the presumption of innocence and its influence on the development of criminal procedure legislation was shown in the article. Also the article contains the analyze of the nature of the decisions of the Constitutional Court of 27 June 2000 on the complaint of V. I. Maslov and its implications for the improvement of the criminal procedural legislation of the Russian Federation; comments of the position of the authors who assessed the decision of the Constitutional Court of the Russian Federation. As example the author analyzes the criminal procedural legislation of foreign states. Some provisions of the Criminal procedure Law of the Republic of Latvia were exanimated. Criminal procedure law of the Republic of Latvia includes the concept of “detainee”. The author proposes to introduce the concept of “detainee” in the criminal procedure legislation of the Russian Federation and other Federal laws. The author gives the definition of “detainee” and proposes to consider the detainee as a new participant in criminal proceedings from the defense. According to the author it may improve the protection of the rights and freedoms of human and citizen.

Keywords: detainee, suspect, criminal procedure code, party to the criminal proceedings, detention.

DOI: 10.12737/article_58e39ece947904.47472178

Modern Legislation and Lawmaking in the Field of Maintenance, Use and Protection of Animals


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

The article examines trends of modern lawmaking and state legislation, regulating relations concerning animals that are not related to species residing in a state of natural freedom. On the basis of system analysis of the current Russian legislation and Federal laws in draft, international legal norms and foreign experience the author comes to the conclusion that the existing in Russia legal regulation in this area is fragmented and in need of radical improvement, but proposed legislative initiatives do not solve this problem. The article substantiates the need to adopt a comprehensive Federal law covering the action of all the animals, not related to the animal world, including issues of housing, use and protection. The author emphasizes that on the basis of this law shall be carried out comprehensive and unified correction several sectors of the Russian legislation concerning the detention, use and protection of animals that are not related to objects of the animal world.

Keywords: stray animals, companion animals, humane treatment of animals, animal cruelty, animals as the source of danger, legislative initiative on the management, use and protection of animals, Federal legislation on animals, regional legislation on animals, acts of local self-government bodies on animals, legal classification of animals.

DOI: 10.12737/article_58e39ece96d568.74247445

The Transfer of Reclaimed Land in Other Lands: Legal Problems and Their Solution


candidate of legal sciences
Russian State Agrarian University — Timiryazev Moscow Agricultural Academy
49, Timiryazevskaya st., Moscow, Russia, 127550

The article examines the social relations concerning the transfer of reclaimed land in unreclaimed, identifies emerging legal issues and suggests the most optimal ways of solving them. According to the author, the transfer of the reclaimed lands as lands with high economic value shall be provided only in exceptional cases. Such cases are primarily associated with non-recoverable loss of specified lands acquired qualities, economic inexpediency of further use of reclamation systems, separate hydraulic structures, as well as ensuring public interests, including environmental protection. The author analyzes the Federal and regional legislation and law enforcement practices on the transfer of reclaimed lands from one category to another and from one form to another. The author notes the lack of a legislated unified procedures and grounds for transfer of these lands to other, less valuable land. As a result of the study the author formulates the conclusion about the necessity of establishing such an order and conditions at the Federal level, the framework of transfer, in particular, for irrigated and drained lands — cancellation of irrigation and drainage systems and separate hydraulic structures as a result of full wear, making it impossible and uneconomic exploitation of failure of natural and technogenic accidents, and loss of connection with the source of irrigation, water insecurity; for the land occupied by protective forestry plantations, – the maximum age of forest stands, their thinning.

Keywords: land, reclaimed land, irrigated and drained land, transfer of land, especially valuable productive agricultural land.

DOI: 10.12737/article_58e39ece9927d7.99491458

Review of the Monograph “Principle of Formal Equality and Mutual Recognition” (ed. by V. V. Lapaeva, A. V. Polyakov, V. V. Denisenko. Moscow, 2016)


Contents of issues: