Contents of issue # 10/2018

■ STATE AND LAW IN THE MODERN WORLD: PROBLEMS OF THEORY AND HISTORY

Mediatization in Legal Sphere: Problem Statement

I. V. ANNENKOVA, M. A. PILGUN, N. N. CHERNOGOR

I. V. ANNENKOVA, head of the laboratory of mediology and media linguistics in the field of law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of philological sciences, associate professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: anneirina@yandex.ru

M. A. PILGUN, leading research fellow of the laboratory of mediology and media linguistics in the field of law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of philological sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: pilgunm@yandex.ru

N. N. CHERNOGOR, acting head of the Center of fundamental legal research of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, RAS professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: chernogor72@yandex.ru

The expansion and strengthening of the mediatization of modern culture in all its manifestations, and above all - in the field of various communications, determines the extreme relevance of empirical and theoretical studies that can explain the mechanisms and features of the interaction of different areas of communication, in particular media and legal analysis of algorithms for solving common problems on the basis of different scientific and practical paradigms, as well as the prospects for the development of interdisciplinary research projects. The article is devoted to the analysis of various aspects of mediatization of the legal sphere of modern society. Traditionally, issues of interaction between media and law are important for society. With the change of media landscape, with the expansion of the web environment, the problems of interaction between law and media have moved into digital reality. In modern conditions the most objective and significant results in identifying the patterns and mechanisms of this interaction can give cross-disciplinary research conducted by combining the efforts of specialists in different fields of fundamental and applied scientific knowledge (lawyers, linguists, psycholinguists, psychologists, sociologists, political scientists, specialists in the field of media and information technology). The demand for such projects is due to the need to increase citizens’ confidence in state and legal institutions, reduce the risks of social conflicts, strengthen civil society. The study is based on the use of methods of empirical observations, media Analytics, media statistics, content analysis and some others. The paper presents the results of a study of the influence of the media and the art industry on the formation of people’s image of law, models of legal behavior, the impact of media on law-making, law-realization and law-interpretation activities. Special attention is paid to the problems of interaction of law and media in digital reality. In addition, the features of communicative activities in the field of interaction of media and law are shown, the algorithms of joint solution of common problems on the basis of humanitarian and technological paradigms are analyzed, the prospects of interdisciplinary research are outlined.

Keywords: law, legal sphere, media landscape, mediatization of law, mediatization of legal discourse, the image of law in the media, the interaction of law and media.

DOI: 10.12737/art_2018_10_1

Execution of the Former Russian Emperor Nicholas II and His Family (1918): Historical and Legal Aspects

D. O. SEROV, A. V. FEDOROV

D. O. SEROV, head of the Department of theory and history of state and law of the Novosibirsk State University of Economics and Management, doctor of historical sciences
56, Kamenskaya st., Novosibirsk, Russia, 630099
E-mail: serov1313@mail.ru

A. V. FEDOROV, leading research fellow of the Department of criminal and criminal procedure legislation; judicial systems of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences, professor, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: 1956af@mail.ru

The article is devoted to the issues related to the legal assessment of the execution on the night of July 16, 1918 in Ekaterinburg of the former Russian Emperor Nicholas II, his family members and persons who were with them. Vast memorial, publicistic and historical literature is devoted to this event, but the legal side of the death of the Romanov family was not considered up to the present moment. The article analyzes the issues of the legal status of Nicholas II before and after the abdication of the throne, the features of the legal system of Soviet Russia in 1918. The analysis shows that after the abdication under the legislation of the Temporary Government and then, after the October Revolution of 1917 in the territory under the authority of the Soviets, neither the former Emperor nor his family members were persons of special legal status, involving a special procedure for bringing them to criminal responsibility; did not have any special legal immunity or any legal privileges; were under arrest in expectation of trial and were shot on the basis of quasi-judicial decisions of the Soviet authorities. The article shows the legal predestination of the execution of the former Emperor and his family in the current historical conditions, when Nicholas II and his closest relatives were among the hundreds of thousands of Russian people who were victims of the “Red” and “White” terror generated by the revolutions of 1917 and the fratricidal Russian Civil War.

Keywords: legal status of Russian Emperor, Russian Temporary Government, Russian Civil War, revolutionary legal consciousness, death-penalty, Emperor Nicholas II.

DOI: 10.12737/art_2018_10_2

■ CIVIL AND FAMILY LAW. BUSINESS LAW

Collapse of Judicial Practice in Disputes on Corporate Procurements

O. A. BELYAEVA

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

In the center of attention of the author is the Review of judicial practice on the questions connected with application of the Federal law of 18 July 2011 No. 223-FZ “About procurements of goods, works, services by certain types of legal entities”, adopted 16th May, 2018 by the Presidium of the Supreme Court of the Russian Federation. Based on the positions of modern scholars in the field of theory of law the author analyzes the Review, coming to the conclusion that this document does not bring any clarity on the issues of adequate resolution of disputes in the field of corporate procurements. On the contrary, the Review is replete with a large number of evaluative concepts, the interpretation of which is very difficult. The author shares the understanding of the law-making function of the judiciary, the need for judicial discretion, the dominant role of judicial precedent. But the task of practice, especially at the level of generalized judicial precedent of the highest court, is to find uniformity, eliminate evaluation categories, finally, the main thing is that positions can not be formed without proper reasoning. According to the author the judicial precedent should be formed taking into account forecasting of risks which will arise at its multiplication in law-enforcement practice. Moreover, the forecast should be global not only in the context of specific disputes, but in general on a macroeconomic scale. The author states the inadmissibility of formulating positions without taking into account the interests of corporate customers, it is unacceptable to give explanations, guided by the interests of procurement participants, in particular, and the objectives of competition development in general.

Keywords: procurement, judicial practice, uniformity of legislation, the Supreme Court of the Russian Federation, judicial precedent, bankruptcy, public information.

DOI: 10.12737/art_2018_10_3

Resolution of Conflicts with Provisions of the Civil Code of the Russian Federation: The Old and New Problems

A. Ya. KURBATOV

professor at the Department of civil and business law of the National Research University “Higher School of Economics”, doctor of legal sciences
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: akurbatov63@mail.ru

The problems encountered in the resolution of conflicts (contradictions) with the participation of the norms of the Civil Code of the Russian Federation are considered, due to the absence of a solution to the earlier problems and the appearance of additional problems in connection with prioritizing the new edition of the first part of this Code. The purpose of the article is to prove the erroneousness of the approach on the priority of the norms of the Civil Code of the Russian Federation to the norms of other federal laws; for this purpose, its contradiction to the general order of resolving conflicts between norms of law based on general legal principles, as well as the impossibility of unconditional priority of the norms of the Civil Code of the Russian Federation as codified Act due to its unconstitutionality and contradictory approaches used in the construction of a system of legislation. To obtain the research results general scientific methods of analysis and synthesis, comparisons, generalizations, classifications, as well as literal and system-logical interpretation of legal norms were applied. As a result, on specific examples of the formation of the charter capital of business entities, it is justified that the priority of the norms of the Civil Code of the Russian Federation can only be regarded as the reception of legal techniques, when the legislator himself (other parts of the conceptual apparatus, classifications of subjects and objects, the structure of relations, etc.), and transitional provisions of civil legislation on such a priority can not reject priority of special rules. As a solution to the emerging problems it is proposed to exclude the provision on the priority of the norms of the Civil Code of the Russian Federation from this Code, and from the point of view of legislative technology, special and general norms should be changed simultaneously, otherwise the operation of the modified general norms will be blocked by special norms.

Keywords: resolution of collisions, norms of the Civil Code of the Russian Federation.

DOI: 10.12737/art_2018_10_4

The Influence of Legal Fictions on the Vindication of Escheat in the Light of the Position of the Constitutional Court of the Russian Federation

D. V. LORENTS

associate professor of the Department of civil law and procedure of the Immanuel Kant Baltic Federal University, candidate of legal sciences, associate professor
14, A. Nevsky st., Kaliningrad, Russia, 236016
E-mail: lord-dv@mail.ru

The Constitutional Court of the Russian Federation in its decision of June 22, 2017, No. 16-P, found unconstitutional art. 302 of the Civil Code of the Russian Federation insofar as it allows, with the imprudent attitude of a public legal entity to formalize its rights to a fictitious apartment, to reclaim it from the possession of a bona fide purchaser. Determining the features of vindication of inheritance is the goal of this scientific research, which requires the solution of the following problems: 1) the evaluation of the specifics of the purchase of escheat and the risks of unreasonable inaction of state bodies when registering such an inheritance; 2) the correlation of the will of the public owner to the transfer of his property and Rosreestr’s acts creating the appearance of the lawfulness of private transactions; 3) analysis of the balance of interests of a public vindicate and citizens who conscientiously acquire a dwelling; 4) revealing the conditions for limiting the vindication of the inheritance, which was not in the possession of the heir at the time of the encroachment. The methodology of legal modeling is used, which allows investigating surrogate legal facts and conditions for the implementation of a hereditary claim of a vindication nature. The establishment by the Constitutional Court of the Russian Federation of a priority in protecting the citizen’s right to housing is quite justifiable, but Moscow’s inaction when issuing escheat property and the creation by Roseestr visibility of the rights of third parties to such property does not mean the disposal of the thing from the possession of the public owner at his will, especially if the property was not in its actual domination. On the basis of the civil logic this entails special conditions for demanding a «lying» inheritance: the court establishes only dishonesty or the gratuitousness of the acquisition. Fiction retrospective acquisition of ownership of the inheritance on the day of its opening does not apply to actual occupancy.

Keywords: vindication, good faith, dispossession at the owner’s will, escheat, dormant inheritance (hereditas iacens).

DOI: 10.12737/art_2018_10_5

■ LABOR LAW AND SOCIAL SECURITY LAW

Immoral Misconduct of the Teacher: The Legal Assessment of the Concept and Consequences in the Field of Labor and Civil Law

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

The article classifies immoral misconducts into: compatible and incompatible with a work continuation; disciplinary offenses and other labor offenses; participation of a teacher and a student, directly observable and etc. It is proved that the incompatibility of an immoral offense with the certain work continuation should be viewed not as the only qualifying attribute, but along with other circumstances (the employee’s guilt form, his/her previous behavior, the presence or absence of such acts in the past, the place of an immoral act committing). An employer must be given the right to terminate the employment contract on his own initiative, if the employee performing educational functions committed an immoral misconduct outside the workplace and took measures to bring information about this to an indefinite group of people (a post in Instagram, uploaded video on YouTube, an announced story on the TV show). If the teacher commits an immoral act outside the workplace and this becomes known by accident, without an intention of a teacher, then the application of the labor law measures on dismissal is questionable. This is justified by the fact that labor law is aimed to regulate relations in the labor process. Any actions of persons outside the place of work can be evaluated from the legal point of view, and if there are grounds, they are qualified as civil, administrative or criminal offenses. More harmful is the immoral act that was committed directly in the period of the work duties performance as a result of a contact with a student or in his/her sight. Therefore, the period of immoral offense detection committed outside the workplace and the period of sanctioning should be less.

Keywords: immoral misconduct, disciplinary misconduct, teacher, robot-teacher, student, dismissal, termination of a labor contract, dissolution of a labor contract, compensation for moral damage, privacy, integrity of personal freedom.

DOI: 10.12737/art_2018_10_6

Insurance Payments at the Expense of Pension Savings in Mandatory Pension Insurance: What Are the Grounds and Conditions of Settlement?

L. A. GALAYEVA

associate professor at the Department of civil law and procedure of the Ogarev Mordovia State University, candidate of legal sciences
68, Bolshevistskaya st., Saransk, Russia, 430005
E-mail: vikanayka@mail.ru

An analysis of the pension legislation allows concluding that when determining the grounds and conditions for assigning insurance payments at the expense of pension savings, the legislator isn’t as logical and consistent as when determining the grounds and conditions for assigning insurance pensions. Due to the complexity and inconsistency of pension legislation, legal problems arise in the process of realizing the right to receive them. The purpose of the research is: to identify and highlight the problematic issues associated with the transformation (reformation) of pension savings funds into specific insurance payments in the mandatory pension insurance system; to understand the content of complex legal (actual) formulations that generate the right to separate insurance payments at the expense of pension savings. The objectives of the research are: 1) to identify and assess the grounds and conditions for settling the pension savings to the successors of the deceased insured person; to analyze the approach of the legislator to determine the scope of persons entitled to receive this payment in the light of existing pension, civil and hereditary legislation; 2) to clarify the general grounds and conditions to appoint a lump payment of pension savings, urgent pension payments and funded pensions; 3) with regard to each of the three insurance payments, to characterize the so-called special conditions that determine the possibility of social insurance coverage of individuals with an insurance payment. In particular, it is worse to speak about the evaluation of quantitative indices of pension accumulation (the amount of pension savings) of the insured person, which is derived from the ratio of the calculated funded pension amount to the total amount of the insurance and funded pension settled in favor of the insured. During the research, the following methods were applied: formal-legal; comparative-legal; an interpretation method of legal norms; method of technical and legal analysis. The author conducts a detailed analysis of substantive law and justifies the need to adjust certain legislative provisions to avoid numerous disputes between subjects of compulsory pension insurance and the uniformity to enforce pension legislation. In particular, it is proposed to change the list of insurable events and include in it an event, such as death (recognition a person as missing) of the insured person; the need to clarify the position of the legislator on the inclusion of siblings in the successors and assignees list of the insured person, taking into account the degree of their relationship; the author comes to the conclusion that the possible refusal of the legislator to evaluate the quantitative indicators of the formed funds of pension savings is justified, when they are converted (transformed) into specific insurance payments.

Keywords: mandatory pension insurance, insurer, the insured person, successors and assignees of the deceased insured person, means of pension savings, insurance payment, lump payment of pension savings, urgent pension payment, funded pension, payment of pension savings to successors and assignees of the deceased insured person.

DOI: 10.12737/art_2018_10_7

■ CRIMINAL LAW AND CRIMINOLOGY

“Criminal Misdeed”: To Release or to Punish (Analysis of the Federal Law Approved by the Russian Supreme Court’s Plenary Decision from October 31, 2017)

N. Yu. SKRIPCHENKO

professor at the Department of criminal law and procedure of the Lomonosov Northern (Arctic) Federal University, doctor of legal sciences, associate professor
17, Severnaya Dvina emb., Arkhangelsk, Russia, 163002
E-mail: n.skripchenko@narfu.ru

The idea actively advocated by the Supreme Court of the Russian Federation on the need to include a criminal misdeed in the criminal legislation is reflected in the draft federal law requiring comprehensive analysis. The purpose of the research is to identify the problems of applying the provision on exemption from criminal responsibility with the appointment of a judicial fine on the basis of the judicial practice analysis (the Article 762 of the Criminal Code of the Russian Federation) and to make proposals on their solution. The methodological framework is a set of scientific knowledge methods. The article uses general scientific (analysis and synthesis of the dialectics) and specific scientific methods research (system-structural, formal-legal). The author comes to the following conclusions: the idea to “weave” the administrative elements into the classical contents of the criminal legislation causes widespread discussion. Unconditional recognizing the criminal misdemeanors basis, which should form crimes of misdemeanor, leads scientists to substantiate various models of legislative integration of a new definition in the system of crime categories. The Supreme Court of the Russian Federation proposed to determine misdemeanor as a crime, for which the law does not imply punishment in the form of liberty deprivation. Persons, who committed the first criminal misdeed or misdemeanor or medium gravity are offered to apply, along with the judicial penalty, “other measures” similar to the types of punishment: compulsory works and corrective labour. The analysis of the draft bill shows that duplication by name and restrictions imposed for punishments and which propose “other measures” indicate the introduction of not new types of exemption from criminal liability, but another form of its implementation. The reinforcement of a new type of exemption from criminal liability as a conditional one updates the issue of criminal and legal measures that can be assigned to the accused in case of malicious evasion of the execution of “other measures”, since the “alternative” is still the same: a fine, compulsory works and corrective labour. The proposal on the imperative of the new grounds for exemption from criminal liability (the Article 762 of the Criminal Code of the Russian Federation) entails the inability to stop criminal prosecution of a person who committed a criminal misdeed on other grounds (the Articles 75, 76 of the Criminal Code of the Russian Federation), which are unqualified. While developing the concept of other measures, the Supreme Court of the Russian Federation ignored issues of these gaps in the criminal law that arose in the process of implementing the new type of exemption from criminal responsibility that had appeared in 2016 in connection with the imposition of a court fine.

Keywords: criminal misdeed, crime, categories of crime, release from criminal liability, other measure of a criminal-law nature, humanization of criminal legislation.

DOI: 10.12737/art_2018_10_8

The Structural Patterns of Criminal Law: А Concept, Types, Correlation of Concepts

V. K. ANDRIANOV

senior research fellow of the A. Department of criminal law research of the Russian State University of Justice, candidate of legal sciences
69, Novocheremushkinskaya st., Moscow, Russia, 117418
E-mail: andrianov_vk@mail.ru

The absence of a holistic doctrine of criminal law norms not only forms a gap in the knowledge of its essence, but to a large extent, also determines the critical state in which modern Russian criminal policy resides. Modern criminal law is characterized by: being non-systemic, spontaneity, urgency, redundancy, inadequacy of society’s requests. However, in its essence, criminal law is not chaotic at all, but has its own internal logic, social conditioning, its objective and essential links, obeys certain rational rules, that is, it is natural. Therefore, the absence in modern criminal law-making of the necessary systemic, logical and consistent level, first of all, it must be filled with the study of criminal law. This study is aimed at identifying the patterns that characterize the internal and external form of criminal law. For this it is necessary: to analyze the philosophical concept of structure; to formulate the concept of structural regularities of criminal law; to present the relation of this concept with the concepts of legal technique; to identify and systematize the structural patterns of criminal law. The methodological basis of the research is the principles of objectivity, comprehensiveness, universal connection of phenomena, systemic nature; general scientific (analysis, synthesis, induction, deduction, classification) and private-scientific (system-structural and formal-logical) research methods. This article is an attempt at a holistic and comprehensive study of structural laws inherent in criminal law. In particular, the following conclusions are made in the article: the structural features are the regularities expressed in the internal organization of criminal law, legislative norms and criminal law phenomena as a way of interrelating the elements that form their content; structural patterns of criminal law have a complex, multi-level nature.

Keywords: patterns, philosophy of criminal law, the nature of criminal law, the internal logic of the criminal law of reality, the structure of criminal law.

DOI: 10.12737/art_2018_10_9

■ ADMINISTRATIVE LAW. FINANCIAL LAW. INFORMATION LAW

State and Municipal Services: Law Enforcement Issues

L. K. TERESHCHENKO

deputy head of the Department of administrative legislation and procedure of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, associate professor, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: adm1@izak.ru

The article is devoted to the analysis of the existing Russian system of normative legal acts and law enforcement practice in the sphere of providing state and municipal services. The range of issues related to the possibility of power and functions redistribution in the sphere of providing state and municipal services, including the possibility to delegate them to outsourcing, is considered. Special attention is paid to issues of providing state and municipal services in electronic form and related identification problems. The aim of the research is to identify law enforcement issues arising in the sphere of providing state and municipal services. The objectives of the study are: to analyse Russian legislation and law enforcement practices in providing state and municipal services, to study the world’s best practices in this field, to develop proposals and recommendations for improving national legislation in this area. While working on the article, the author used general and special methods of scientific knowledge: dialectical, formal-logical, functional, system-structural, historical, comparative-legal methods and also methods of interpreting law, legal modelling and forecasting. The author shows that in the legislation there are two definitions of state and municipal services that do not coincide with each other. As a consequence, the set of subjects that can provide state and municipal services does not coincide, and therefore issues arise in law enforcement practice. Based on the analysis of law enforcement and judicial practice and on the experience of foreign countries the author formulates proposals and recommendations on improving Russian legislation.

Keywords: state services, municipal services, electronic services, redistribution of powers, outsourcing, multifunctional centres.

DOI: 10.12737/art_2018_10_10

Big Data in Public Administration: Opportunities and Threats

S. E. CHANNOV

head of the Department of service and labor law of the Stolypin Volga Region Institute of Administration — the Branch of the Russian Academy of National Economy and Public Administration under the President of the Russian Federation, doctor of legal sciences, professor
23/25, Sobornaya st., Saratov, Russia, 410031
E-mail: sergeychannov@yandex.ru

The article examines the opportunities and prospects for using big data in public administration on the example of the Russian Federation. The aim of the study is to determine how far and how much big data can be used in the Russian public administration, taking into account the accumulated experience of the state information systems’ functioning in various spheres of management, and also what threats and risks can be associated with this. The author used general scientific methods: dialectical method, methods of formal logic, and also a comparative method. Based on the analysis of both Russian and foreign experience the author concludes that big data in public administration can improve its effectiveness. At the same time, it is noted that big data also poses some threats that have already manifested themselves in the use of this technology in commercial structures and that should be considered in the case of the use of big data in public administration. First of all, it is a threat of violation of the right to privacy of personal information as a result of the use of big data. This technology largely devalues the existing legal mechanisms of personal data protection and requires a change in the concept of personal information protection. This threat is directly related to the other, which is the possibility of making incorrect management decisions as a result of the use of big data technology, infringing on the rights and freedoms of citizens. All this leads the author to the conclusion that the introduction of big data technology in public administration should be accompanied by the development of certain requirements for their application to citizens and organizations. In particular, there should be a General ban on management decisions that produce legal consequences for citizens or organizations or otherwise affect their rights and legitimate interests on the basis of exclusively automated processing of any data. In a number of situations, it may be necessary to maintain the requirement to establish causal relationships that have not been identified by computer analysis and to prove the findings by logical reasoning.

Keywords: public administration, big data, management decisions, public information systems, personal data, rights of citizens.

DOI: 10.12737/art_2018_10_11

■ INTERNATIONAL LAW

Properties of the EAEC law through the prism of the practice of the Court of the Eurasian Economic Union

E. B. DYACHENKO, K. V. ENTIN

E. B. DYACHENKO, counsellor of the judge of the Court of the Eurasian Economic Union, candidate of legal sciences
5, Kirova st., Minsk, Belarus, 220006
E-mail: DyachenkoEB@gmail.com

K. V. ENTIN, counsellor of the Legal research and analysis department of the Secretariat of the Court of the Eurasian Economic Union, candidate of legal sciences
5, Kirova st., Minsk, Belarus, 220006
E-mail: kirill.entin@coleurope.eu

Every integration organisation at some stage of its development faces the need to establish the essential characteristics of its legal order. The main properties of supranational law cited in the doctrine are primacy, direct effect and direct applicability. On their presence or absence depends which path that new legal order could undertake. As can be seen from the European Union’s experience the properties of the supranational legal order are often not expressly included in the text of the international treaties, but are formulated by the supranational judicial body. For the Eurasian Economic Union and the law of the EAEU, which are at the initial phase of their development, the issue of determining the main characteristics is of primary importance due to need to ensure the respect of the legal norms of EAEU law in all the Member States and in the absence of any mechanisms for interaction between the EAEU Court and national judicial bodies. The present article is devoted to the analysis of the role of the EAEU Court in formulating the essential characteristics of EAEU law, allowing to track down the evolution of the Court’s approach to primacy from “tacit acceptance” to its explicit recognition in the case-law. The article also draws attention to the significance of the direct effect and direct applicability of EAEU law for the national legal systems. Using the case-law of Russian courts as an example the authors demonstrate the existing opportunities of using EAEU law to protect the interests private persons’ in national courts. A special consideration is given to the concept of autonomous legal system of the EAEU as a prerequisite for its effective development and application. In the authors view it would allow to exclude the discretion of the national legislator in determining the role and place of EAEU law.

Keywords: Eurasian Economic Union (EAEU), Court of the EAEU, Court of Justice of the EU, primacy principle, principle of direct effect, principle of direct applicability, autonomous legal order.

DOI: 10.12737/art_2018_10_12

■ JUDICIARY, HUMAN RIGHTS AND LAW ENFORCEMENT

The Russian Judicial Reform in 2018: Concept, Objectives, Content (Part I)

V. V. MOMOTOV

chairman of the Council of Judges of the Russian Federation, judge of the Supreme Court of the Russian Federation, judge of the highest qualification class, doctor of legal sciences, professor
15, Povarskaya st., Moscow, Russia, 121260
E-mail: viktormom@mail.ru

The Supreme Court of the Russian Federation initiated a large-scale judicial reform, designed to modernize the existing model of justice in accordance with the new demands of civil society and modern standards of legal development. This reform is a comprehensive system of measures that affect the judicial system, the judicial system and the legal status of judges. The aim of the research is a conceptual legal substantiation of the proposals of the highest court instance on reforming the judicial system and the legal status of judges. The objectives of the study are to analyze the historical context of the proposed changes, to assess the reasons for the preparation of proposals for the reform of the courts of General jurisdiction and the development of the judiciary, as well as the expected consequences of the implementation of these proposals. The study used the system, historical and legal, comparative legal, formal legal methods. According to the results of the study, it is noted that the creation of structurally independent cassation and appeal courts of general jurisdiction is objectively conditioned by modern standards of judicial independence, according to which the «combination» of several courts within the same court may raise doubts about the objectivity and impartiality of judges when considering appeals and cassation appeals. The positive consequences of the proposed changes, including an increase in the level of legal protection of citizens in connection with the conceptual revision of the model of cassation justice and the introduction of the newly created cassation courts of General jurisdiction of the system of «full cassation». With regard to the development of the judiciary, attention is drawn to the fact that an integrated approach to the reform of the status of judges should cover all stages of the professional development of judges: before appointment (improvement of the system of professional training of judges), during the work of a judge (by strengthening the legal and social guarantees of judicial independence) and upon termination of powers (by modernizing the institution of disciplinary responsibility of judges).

Keywords: judicial reform, Supreme Court of the Russian Federation, judicial system, efficiency of justice, judicial corps.

DOI: 10.12737/art_2018_10_13

Ways of Development of the Institute of Judicial Expenses: Comparative Legal Analysis

K. S. SHMOTIN

postgraduate student at the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: kirillshmotin@gmail.com

The article is devoted to the analysis of actual problems of the Institute of judicial expenses. The author notes that, despite the fact that judicial expenses are an independent institution of procedural law, until recently it has received little attention and support. At the same time, the payment of judicial expenses is an essential condition for the initiation of a civil case in court, and hence for gaining access to judicial protection. An important element of the rule of law, accessible and quality justice, depends on the task that the legislator imposes on judicial expenses: to reimburse the costs of the judicial system or to make an appeal to the court cheaper. The purpose of the article is to show that the reform of the institution of judicial expenses should not stand still and should not be limited to the problems of costs of a judicial representative. In order to define the specific objectives of the judicial expenditure Institute, it is important to understand the purpose for which its reform is needed, as well as the basis of the existing proposals. To clarify the overall picture, the author conducted a statistical and comparative legal study of domestic and foreign law enforcement practice, whose task was to analyze the real experience of foreign countries in this area, as well as the possibility of projecting such experience on the existing legal regulation in the Russian Federation. Taking into account the analysis, the author came to the conclusion that the existing proposals for the reform of judicial expenses are not always based on objective information. The development of the institution of judicial expenses in foreign countries is based on different legal traditions, which suggests the need for a cautious approach to the issue of borrowing. At the same time, the author considers as acceptable to use some mechanisms successfully operating in foreign countries in domestic practice.

Keywords: judicial expenses, state fees, court fees, judicial fees, costs of the representative.

DOI: 10.12737/art_2018_10_14

■ SCIENTIFIC FUNDAMENTALS OF COUNTERING CORRUPTION

Corruption Manifestations in the Field of Water Relations and Measures to Reduce Them

D. O. SIVAKOV

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: dmitrius1978@yandex.ru

Corruption in water relations in all its manifestations increases environmental threats and indirectly undermines the order of water use and the system of protection of the water fund, complicates a qualitative leap in the development of water management. This, in turn, leads to significant negative consequences for the life of the whole society. The purpose of the article is to examine the relations in the field of use and protection of water bodies of Russia through the prism of anti-corruption policy and in connection with the purpose of anti-corruption legislation. The objectives of the research, expressed in the article, are set in connection with two branches of legislation: water legislation and anti-corruption legislation, the issues of monopolism are touched upon. Based on judicial practice and the results of scientific research, the author identifies the “pain points” of Russian water legislation in terms of corruption risks and manifestations of corruption. For example, legal uncertainty in connection with the concept of ponds and flooded quarries is revealed. The methods of system analysis and modeling are applied. Universal scientific methods of induction, deduction and abstraction are also used. Based on the use of these methods, proposals to fill the shortcomings of the current law are justified, which will prevent and suppress corruption, eliminate its consequences. In general conclusions the author links the tasks of successful development of water law in terms of ensuring sustainable water use with the tasks of combating corruption. The changes in laws and subordinate normative legal acts, as well as in the practice of law enforcement put forward in the article, will make up for defects and remove contradictions in the legal regulation of water relations. In particular, based on the analysis of article 19 of the Water Code, the author came to the conclusion: the legal structure of the transfer of rights under the water use agreement from one person to another contains a corruption risk, which makes it possible to bypass the rules of competition with impunity regarding the admission of economic entities to water bodies. The author emphasizes that it is in the neutralization of corruption risks and manifestations in the field of water relations that the necessary prerequisite for ensuring “environmentally friendly” water use lies. In this sense, in the case of implementation of these proposals, the effectiveness of legal regulation of the studied social relations will improve.

Keywords: water legislation, Water Code, judicial practice, water users, economic entities, water use agreements, corruption risks, competition restrictions, monopolistic activity, ponds, flooded quarries, monitoring of water bodies, anti-corruption legislation, public control, prevention of corruption, technological breakthrough.

DOI: 10.12737/art_2018_10_15

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