Contents of issue # 8/2017

The Legal Order: Doctrinal Approaches, Methods and Current Directions of the Research  Pdf 16

N. N. CHERNOGOR, D. A. PASHENTSEV

N. N. Chernogor, head of the Department of state-legal disciplines 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

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

Scientific knowledge presupposes the formation of such ideas and definitions, which are multilevel, multidimensional and constantly developing semantic constructions that form the basis of independent concepts and theories. It is that definition which specifies the rule of law. The category “law and order” was introduced into the scientific circulation more than a hundred years ago and was widely used both at the legislation and doctrinal levels. Each new generation of researchers brings their own vision into the legal doctrine, which reflects not only the variability of social relations, but also the development of scientific thought itself.
The authors consider the approaches developed in law and related scientific fields to determine the nature and essence of law and order, methods of researching its genesis, forms and mechanism of provision and determine the correlation of law and order with related legal phenomena. Along with this, the article outlines prospective directions for evaluating the legal order. It is proposed to apply the methodological principles of postclassical jurisprudence to the study of law and order, including constructivism and anthropocentrism. From these positions, the rule of law becomes a constructed model, which parameters are determined by the prevailing ideas in society. The content of this model is determined by the sense of justice and the legal tradition. An important role in the mechanism of the reproduction of law and order is played by the subject of law, whose activities are also determined by the legal tradition. It is proposed to move away from a static understanding of law and order. The rule of law is described in the article as a permanent activity of subjects of law on the implementation of legal norms, built by the external and internal dialogue and oriented to the current representation of the society about a proper model of legal behavior.

Keywords: constructivism, postclassical science, law and order, legal form, law, legal system.

DOI: 10.12737/article_597714e7d6a893.66790709

 

Adobe pdf 24  Full text in Russian

On Problem of Discretionary Rules of Private and Public Law of Modern Russia  Pdf 16

V. V. KOZHEVNIKOV

professor at the Dostoevsky Omsk State University, doctor of legal sciences
55а, Mir ave., Omsk, Russia, 644077
E-mail: kta6973@rambler.ru

This article considers specific features of dispositive norms of private and public law of modern Russia in conditions of democratization of the latter.
The purpose of this paper is to substantiate the existence and functioning of dispositive norms of law not only in the private law branches, as many theoreticians believe, but also in public.
To achieve this goal, the following tasks are set: 1) to articulate the concept of discretionary nature and to determine its relationship with discretionary norms of law; 2) to group the positions of the authors from dispositive norms evaluation’s point of view as following: negative attitude towards dispositive norms; recognizing dispositive norms only in the framework of private law; recognizing dispositive norms both in private and public law; 3) to analyze the features of dispositive norms, which are of dominant importance in private law; 4) to show specificity of dispositive norms of law in various branches of public law (criminal procedural law, criminal law and tax law); 5) taking into account the effect of dispositive norms both in private and in public law to clarify the concept of “dispositive norm”, which is associated with valuation concepts and whose content is disclosed in the process of exercising law; 6) to analyze evaluative concepts, which necessarily lead to dispositive norms; 7) to show the interaction of dispositive norms of private and those of public law.
In preparing the scientific article a set of methods of scientific cognition of legal phenomena was used: general philosophical (dialectical-materialistic), general scientific (analysis, synthesis, abstraction, historical and legal approach, comparison, etc.) and the private-scientific (dogmatic, interpretation, etc.) set.
The authors came to the conclusion that dispositive norms exist and function not only in private but also in public law; their presence is largely determined by the so-called valuation concepts, which, in turn, determine the legal activity of both citizens and officials of the state bodies concerned.

Keywords: democratization of the Russian law, dispositivity, dispositive rules, private law, public law, option, legal activity.

DOI: 10.12737/article_597714e7ea5218.63751697

Adobe pdf 24  Full text in Russian

The Congruence between Substantive and Temporal Collision of Law  Pdf 16

A. A. PETROV

associate professor at the Department of theory and history of state and law of the Law Institute of the Siberian Federal University, candidate of legal sciences
79, Svobodny ave., Krasnoyarsk, Russia, 660041
E-mail: sfu-pravo@yandex.ru

The article analyses the problems of establishing a rule for resolving collisions that should apply in situations of mismatch between two norms that have the same legal force: between the later adopted general rule and previously adopted one. According to the general criterion for overcoming the chronological conflict, a later accepted general rule should be applied. The principle of overcoming a substantial collision, on the contrary, affirms the priority of a previously adopted special rule. This puzzle has simple solution neither in law theory nor in practice. 
The aim of the research is to find the most optimal approach to solving the problem of congruence of temporal and content collisions. Achieving this goal is impossible without solving a number of problems:
studying the legal regulation of the issue in Russian law and understanding doctrinal approaches and addressing current practices in resolving the issue.
The methodological basis of the study is various standard general, interdisciplinary and special methods of understanding the phenomena of legal reality. Among them, methods such as legaldogmatic and comparative-legal ones are especially significant.
The article reveals the contradictory regulation of the issue at the level of the subjects of the Russian Federation. The author turns to the history and theory of this issue, critically assesses the options expressed by domestic and foreign experts for its solution and their arguments and analyzes the legal regulation of the issue in Russian law. The article criticizes the that point of view, where the right to solve the issue should be given to law enforcement officers, who should formally establish the true will of the legislator, as well as the theoretical position that the general later adopted norm has the advantage over the previously adopted special one. The conclusion about the priority of a meaningful criterion over the temporal criterion is formulated and justified.

Keywords: substantial collisions of law, temporal collision of law, coincidence of collisions, overcoming of collisions in law.

DOI: 10.12737/article_597714e8091556.13559373

Adobe pdf 24  Full text in Russian

The Legal Nature, the Interconnection Structure and the Content of the Agreement on Volunteer Activity  Pdf 16

M. N. MALEINA

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

Volunteering is a system of social relations. Taking into account the different schemes of legal relations, such volunteer movement’ participants as a volunteer, a volunteer organization and a beneficiary are selected. The article reveals the main contractual models of volunteer activity: the volunteer and the beneficiary, the volunteer and the volunteer organization, the volunteer organization and the beneficiary.
The agreement on volunteer activity is concluded in practice and mentioned in legal acts, but its terms and responsibilities are not fixed. The agreement on volunteer activity by nature is a civil contract for the provision of services or for performance of work or a comprehensive contract.
The article justifies the reference to the essential conditions of this agreement of the conditions on the subject, gratuitousness and the terms of performance of works. It is proposed to consider the following additional essential conditions: 1) conditions for working clothes (uniforms), special personal protective equipment, based on the substance of a certain type of volunteer activity; 2) the conditions for the health of volunteers in cases prescribed by law; and 3) the conditions for requirements for the skills and abilities of volunteers assisting persons in zones of natural disasters, armed conflicts involved in overcoming the consequences of environmental, technological and other disasters.
The usual terms of the agreement on volunteer activity include the conditions for the way the work is done, the confidentiality of information received in the course of the activity, written confirmation of the volunteer's performance of works (services), the insurance of the volunteer's responsibility and the intangible forms of encouraging the volunteer.

Keywords: volunteer, voluntary activities, non-profit organizations, voluntary organization, gratuitousness, the agreement on volunteer activity, contract services, contract for performance of work.

DOI: 10.12737/article_597714e81826c1.96231570

Adobe pdf 24  Full text in Russian

Ownership of Waste: Legal Problems of Implementation and Transition  Pdf 16

M. V. PONOMAREV

research fellow of the Department of environmental legislation of the Institute of Legislation and Comparative Law under the Government of Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: ecology1@izak.ru

This article is devoted to the current issues of legal regulation of waste management in result of production and consumption. Waste is not only a special kind of property, but also a special object of property rights, the object of civil rights and civil turnover and a special object of ownership, peculiarities of their legal regime and legal regulation of activities to deal with them.
The purpose of this study is to identify the specifics of the turnover of waste as property and the object of ownership, the procedure and conditions for the transfer of its ownership from one person to another, as well as its alienation, taking into account the views of legal science and the law-enforcement practice (courts’ interpretation and explanations of authorized federal executive bodies).
The author also analyzed the main problems of the duties’ implementation of the owner of the waste, in particular, taking into account the repeatedly changing trends in law enforcement practice, the nuances related to the need to fulfill duties — paying fees for the negative impact on the environment in the disposal of wastes.
As a result of the conducted research, the author comes to the conclusion that waste produced by the production and consumption represents a very specific type of property and an object of civil rights — movable property with a limited circulation, the order of origin and alienation of ownership that is currently established in accordance with the main provisions of civil legislation, taking into account the specifics provided by the legislation on environmental protection.

Keywords: waste of production and consumption, waste, payment for negative environmental impact, property rights, ownership, emergence of ownership, transfer of ownership.

DOI: 10.12737/article_597714e826d935.46072464

Adobe pdf 24  Full text in Russian

Private Legal Mechanisms of Criminal Law Protection of the Individual  Pdf 16

E. L. SIDORENKO

head of the Laboratory of criminological analysis and forecasting of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, professor at the Department of criminal law, criminal procedure and criminalistics of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: 12011979@list.ru

In the article private legal mechanisms of criminal law protection of the Individual author analyzed. In the context of the modernization of criminal legislation the author points out the need to take into account the interests of an individual as fully as possible. It does not support the idea of identifying private legal mechanisms with the method of permitting and proposes to consider them within the framework of the dispositive regime of criminal law regulation.
The evaluation of private legal mechanisms of criminal law protection of the Individual through the prism of the dispositive regime made it possible to determine the rights of a private person and assess the completeness of their implementation within the institutions of consent of the victim and release from criminal responsibility (art. 76 of the Criminal Code).
The purpose of the article is to prepare recommendations on the application of the norms of the dispositive regime of criminal law regulation. The realization of this goal was ensured through the definition of the rights of the individual, the signs of the dispositive regime and the delineation of private and public interests.
The author uses general and private scientific methods of analysis: comparative-legal and formallegal methods, content analysis and others.
Analysis of the decisions of courts and scientific positions on the issues of qualification of crimes against personality allowed the author to formulate a number of interesting conclusions. In particular, the objection causes a discrete character of the exemption from criminal responsibility in connection with the reconciliation of the parties and the consent of the victim in the note to art. 122 of the Criminal Code.

Keywords: private law mechanisms, criminal law regulation, crimes against the person, victim, private interest, consent of the victim, reconciliation of the parties.

DOI: 10.12737/article_597714e83885d0.11583225

Adobe pdf 24  Full text in Russian

Criminal Law and Informatization  Pdf 16

E. A. RUSSKEVICH

senior lecturer at the Department of criminal law of the Kikot Moscow University of the Ministry of Internal Affairs of the Russian Federation
12, Akademik Volgin st., Moscow, Russia, 117437
E-mail: russkevich@mail.ru

The construction of information and communication infrastructure naturally caused the emergence of a new form of socially dangerous behavior of a person — computer crime. Another consequence of global informatization was the change in the appearance of crime in general, which, due to the use of information and communication technologies, acquired features that were not characteristic of it before. The process of penetration of cybernetic methods, as well as tools of information and communication technologies in the mechanism of crime (informatization of crime), actualizes the need for scientific understanding of the state and prospects for the development of domestic criminal law.
The research objective is to develop theoretical recommendations and proposals for overcoming the problems arising in connection with criminal legal counteraction to crimes committed using information and communication technologies. The implementation of this goal was achieved by assessing the state of domestic criminal legislation, the classification of crimes committed using information and communication technologies, determining the main directions and conditions for effective modernization of the Criminal Code of the Russian Federation.
The study is based on the application of general scientific and special methods (analysis, synthesis, induction, formal-legal, abstract-logical, etc.).
Reforming of domestic criminal legislation should be carried out in three main areas: 1) expanding the list of crimes that encroach on information security; 2) the criminalization of new high-tech forms of encroachment on the social relations traditionally protected by criminal law; 3) modernization of existing crime patterns by detailing their commission in a specific way — using information and communication technologies. Despite the scale and complexity of the problem of effective counteraction to crimes committed with using information and communication technologies, the amendment of the Criminal Code of the Russian Federation should be carried out on the principle of minimizing the introduced changes.

Keywords: criminal law, criminal policy, computerization, information and communication technology, information security, computer crime.

DOI: 10.12737/article_597714e7c1b439.52593067

Adobe pdf 24  Full text in Russian

Public Services: between Doctrinal Understanding and Practice of Normative Consolidation (10 Years Later)  Pdf 16

N. V. PUTILO

head of the Department of social 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: social2@izak.ru

Within the scientific debate of 2006–2007 about the nature of public services the highlights of which were reflected in a series of articles published in No. 6 of the Journal of Russian Law 2007 were made attempts of scientific substantiation of administrative reforms and consequent changes in legal system, which today can be evaluated taking into account the development of legal doctrine and enforcement practices.
The goals and objectives of this research is to study new approaches to the nature of public services, including identifying features of the regulation of public and social services in the regulatory legal acts of the Russian Federation.
Available in article conclusions and suggestions are based on the analysis of scientific literature, normative acts and official data.
The author criticizes the disproportionate consideration of the state service in normative legal acts, their identification with public services, which leads to identification of activities of state bodies with the activities of organizations that provide massive public services. The previously formulated idea that social services are perceived by the legislator in an extremely narrow aspect is confirmed. In the course of identifying differences between the administrative regulations of rendering state services and administrative regulations of execution of state functions concluded their formal, technical nature.
The paper draws conclusions about the discrepancy between scientific concepts and law-making practice of ignoring the legislative level of the Institute of public services. The assumption that the legislative practice does not take into account the results of the doctrinal understanding of the phenomenon of public services, including significant differences between state services and state functions is confirmed.

Keywords: public services, social services, functions, administrative regulations, classification of services, the legal doctrine and legislative practice.

DOI: 10.12737/article_597714e850a8c3.10775309

Adobe pdf 24  Full text in Russian

On Discretion in Administrative Rulemaking Process  Pdf 16

A. A. SMIRNOVA

associate professor at the Department of the North-West Institute of Management of the Russian Academy of National Economy and Public Administration under the President of the Russian Federation, candidate of legal sciences
57/43, Sredniy ave., St. Petersburg, Russia, 199178
E-mail: smirnowann@yandex.ru

Administrative rulemaking is one of the most important forms of activity of executive power bodies. However, up to the present time the Russian science of administrative law has not developed a uniform approach either to the legal nature of the administrative rulemaking process or to the possibility of applying discretion in it.
The goal of this research is to study the discretion in the administrative rulemaking process. The objectives of the research are related to its goal and are as follows: to analyze approaches to administrative discretion in general; to study the issue of discretion in the administrative rulemaking process and to examine its manifestations; to identify problems that exist in this field of research and to offer ways of solving the problems.
The study of discretion in administrative rulemaking is carried out using general scientific methods of obtaining knowledge (logical, analytical, synthetic, inductive, deductive, etc.). In addition to the above methods, the analysis of federal and regional legislation and of the scope of authority and purview of executive power bodies in the research area is carried out using the formal legal and system methods.
In this article the discretionary powers were analyzed from the angle of their application in administrative rulemaking. The author notes that the issue of discretion in the above-mentioned area of activity of the executive power has not been sufficiently studied by the Russian legal science. Clearly, discretion exists in administrative rulemaking. This manifests itself in various aspects, and legislation in this area requires regular unification and systematization.

Keywords: administrative rulemaking, discretion, executive power bodies.

DOI: 10.12737/article_597714e8639bb7.81260427

Adobe pdf 24  Full text in Russian

Commissionaire — Dependent or Independent Agent of International Organisation in Russian Federation?  Pdf 16

Ya. S. MAKAROVA

postgraduate student of the Department of financial, tax and budget legislation of the Institute of Legislation and Comparative Law under the Governmental of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: yana_job5555@mail.ru

Today the “commissionaire” as a concept of international taxation that is not studied sufficiently. However, it plays a key role when determining whether a foreign enterprise creates a permanent establishment on the territory of a particular country or not. From the legal point of view commissionaire is an independent agent in majority of the countries including the Russian Federation and do not have a permanent establishment of the foreign enterprise. From the point of view of economic essence the commissioner can be fully or partially dependent on the foreign enterprise. Such situations became the object of analysis of the OECD.
The author of this paper analyses this problem in relation to the Russian legal reality. Also the author describes the OECD recommendations relating to the recognition of a commissionaire as dependent agent, analyses the articles of Russian Double Taxation Agreements about dependent and independent agents, as well as certain foreign and Russian case law on this issue. Moreover, the possibility of codification of new criteria of finding dependent agent “dependent”, which can be applied to commissioner as well, is analyzed.
The author concluded that in the international space there is an active use of commission structures for the purpose of abuse within the framework of tax legal relations, therefore, it is important for the Russian Federation to take preventive measures to avoid such cases. As such a preventive mechanism, possible ways of settling this phenomenon are proposed in such a way that the Russian principles of international taxation correspond to changing reality and world trends.

Keywords: tax, tax law, profit, permanent establishment, dependent agent, independent agent, commission, commissionaire, foreign organizations, OECD.

DOI: 10.12737/article_597714e87a21c4.84870040

Adobe pdf 24  Full text in Russian

Pension Provision for Children Who Lost Their Bread-Winners: Peculiarities of Legal Regulation  Pdf 16

E. G. AZAROVA

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: labour@izak.ru

The article is devoted to the peculiarities of pension provision for juvenile in case they lose their supporter due to death or unknown absence. It shows the dependence of the right to pension of the minor members of the supporter’s family on his legal status. Some features of legal regulation are established for families of insured persons, military personnel, citizens affected by radiation or anthropogenic disaster, astronauts. By the loss of a supporter who does not have a certain legal status, the possibility of assigning a social pension is provided. Legal facts such as loss of a supporter, recognition of children (including adopted ones), as well as brothers (sisters), grandchildren, stepchildren (members) of his family, facts of disability of family members and dependents of a supporter are investigated. It is noted that the benefits of pension legislation can be attributed to the recognition of many facts required for prescribing pensions to children, presumed and not requiring evidence.
The legislative initiative to expand the concept of loss of a supporter for the purpose of providing pensions for children whose parents are unknown or who for a long time evade paying alimony is criticized by the author. The similarity and difference in the norms of family and pension laws regulating the right of family members to alimony and to a survivor's pension are analyzed. Attention is drawn to the desirability of greater consideration of the provisions of the Family Code when family members are included in the circle of persons provided with a pension for the loss of a bread-winner. In order to improve the legislation on the provision of pensions for children and expand the range of persons eligible for retirement, the need for greater coherence of pension and civil legislation in the direction of recognizing the deceased actual dependents is substantiated, irrespective of if there is a kinship or a degree of kinship between them.

Keywords: survivor's pension, disabled family members, minor children, brothers (sisters), grandchildren, stepchildren (stepdaughters), concept of loss of breadwinner, dependency.

DOI: 10.12737/article_597714e88ee358.48297247

Adobe pdf 24  Full text in Russian

Problems of Legal Regulation of Enrollment Recovery Order in Educational Organizations of Higher Education  Pdf 16

A. A. KIRILLOVYKH

associate professor at the Department of constitutional, administrative law and legal ensuring of public service of the Law Institute of the Vyatka State University, candidate of legal sciences
36, Moskovskaya st., Kirov, Russia, 610014
E-mail: kirillovykh2014@yandex.ru

This article deals with the problem of the legal regulation of issues concerning enrollment recovery of students in educational institutions of higher education. The author aims to study the problems of regulation in the current educational legislation, as well as those at the level of the educational organization’ enrollment recovery issues and proposes measures to improve the regulation of the enrollment recovery process.
The methodological basis of the study amounted to an analytical method to consider the practice of regulating the issues of transition, formal-legal method to uncover systemic links in legal regulation, regulatory legal acts and especially the law enforcement practices.
The researcher finds that in the present period of practice the regulation of relations in educational organizations (especially those dismissed on invalidity reason) does not fully conform to the requirements of current federal law on education. Enrollment recovery of students is reflected in the statutes of the educational institutions that have a low potential for regulatory capacity.
It is concluded that for a solution of normative and technical problems and for improving the legal regulation in this case it is necessary to create local regulations of normative nature, dealing with the substantive and procedural aspects of the enrollment recovery process.

Keywords: educational organization, expel, enrollment recovery, student, statutes, regulations.

DOI: 10.12737/article_597714e8a7bda5.66451062

Adobe pdf 24  Full text in Russian

On Some Issues of Development of Procedural Legislation and Judicial System Legislation  Pdf 16

V. M. ZHUYKOV

head of the Department of civil legislation and procedure 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
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: civil@izak.ru

The article analyses the followings issues: links between procedural legislation and judicial system legislation, their interference, issues caused by the changes of the judicial system of the Russian Federation (unification of the Supreme Court and the Supreme Court of Arbitration, creation of the unified Supreme Court of the Russian Federation, that headed the system of the regular courts and the arbitrary courts) and therefore changes of the procedural legislation (appellate, cassation, supervisory proceedings within civil proceedings); and the issues of unification of procedural legislation.
For the purpose of this unification, the idea of adopting the fundamentals of procedural legislation at the level of the federal constitutional law as a single legal framework for its various types (civil, arbitration, criminal procedural law and administrative procedural law) is supported. The necessity of establishment of district courts in the system of courts of general jurisdiction for the consideration of, mainly, cases as courts of cassation instance in the manner similar to that of the districts operating in arbitration courts, is substantiated, which will allow a creation of a full cassation process in the courts of general jurisdiction.
Some changes are proposed in the appellate and supervisory proceedings.

Keywords: judicial system, civil legal proceedings, unification of process, appellate proceedings, cassation proceedings, supervisory proceedings.

DOI: 10.12737/article_597714e8c2d294.92929409

Adobe pdf 24  Full text in Russian

Law Enforcement and Control and Supervision Functions of the State  Pdf 16

A. F. NOZDRACHEV, O. E. STARODUBOVA

Contents of issues:

2018
2017
2016
2015
2014
2013
2012
2011
2010
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997