Contents of issue # 4/2018

The Status of Capital as a Category of Constitutional Law  Pdf 16

A. E. POSTNIKOV

head of the Department of constitutional law 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: const@izak.ru

The status of capital is a meaningful category of constitutional law. The determination of capital and establishing its status are the subject of constitutional regulation that is no disputing, taking into account the need to create a stable legal environment for the formation of the public authority in the country and functioning of the supreme bodies of state power. Thus, the issue of the status of capital is especially important for the countries with a highly centralized system of government as political, legal, economic and other decisions allotting the life of the state as a whole are made in the capital of state. In the context of the Russian Federation when the capital of state has not been changed for many decades and currently there is no serious public debate about its transfer or change of its status, it could lead to the impression that there is low-priority of issues concerning the constitutional status of capital, the possibility of making arbitrary decisions in accordance with the current needs, that took place during the adoption of the Federal law “On amendments to the Law of the Russian Federation «On the status of the capital of the Russian Federation» and certain legislative acts of the Russian Federation regarding the establishment of specific regulation of certain legal relations with a view to renovating the housing stock in the subject of the Russian Federation — a city of federal significance of Moscow”: Federal Law No. 141-FZ of July 1, 2017. Thus, there is necessary to identify clear constitutional guidelines for legislative regulation of the status of capital. The author is considering the history of the formation of the category “status of capital” in academic and official doctrine. It is proved that in the framework of legal state the “status of capital” must be determined only in connection with the exercise of the functions of the capital in a narrow sense as the activity of the supreme bodies of state power. The status of the capital as the most important attribute of a federal state should ensure the further development of federal relations, based on the unity of legal space of state and the equality of the subjects of the Russian Federation, and should not be a pretext for a special solution of specific tasks of social and economic development of Moscow as one of the subjects of the Russian Federation.

Keywords: status of capital, functions of capital, unity of legal system, equality of the subjects of the Russian Federation, renovation of the housing stock, constitutionality, category of constitutional law, treaty on the delineation of powers.

DOI: 10.12737/art_2018_4_1

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The Dissolution of the Legislative (Representative) Body of a Constituent Entity of the Russian Federation in Case of Default of the Court’s Decision: Some Issues  Pdf 16

A. M. KALYAK

associate professor at the Department of constitutional and municipal law of the Siberian institute of management — the Branch of the Russian Academy of National Economy and Public Administration under the President of the Russian Federation, candidate of legal sciences, associate professor
6, Nizhegorodskaya st., Novosibirsk, Russia, 630102
E-mail: Andrei.kaliak@mail.ru

Par. 4 of article 9 of the Federal law No. 184-FZ “On general principles of organization of legislative (representative) and executive state authorities of constituent entities of the Russian Federation” from 6 October 1999, providing for the dissolution of the legislative body of a constituent entity of the Russian Federation in case of default of the decision of the federal court on the discrepancy between a regional constitution (charter) or law of a constituent entity of the Russian Federation with a federal legislation or the Constitution, contains provisions on the participation of the judiciary in the process. However, this provision on the basis of its legislative consolidation, can not be unambiguously interpreted. The author had a task to analyze the Federal law with the purpose of revealing its actual content and place in the system of federal measures, and to consider the involvement of the judiciary, including the Constitutional Court of the Russian Federation, in its implementation. To achieve this goal and solutions of this problem there was conducted a formal legal analysis of par. 4 of article 9 of the Federal law from 6 October 1999, were researched the legal positions of the Constitutional Court of the Russian Federation, formulated while identifying the constitutional meaning of these provisions, as well as doctrinal concepts about its contents. On the basis of the conducted analysis the author made a conclusion about the real value of par. 4 of article 9 of the Federal law from 6 October 1999, in the system of federal measures and possibilities of its realizing. The vagueness of its grounds and the uncertainty of enforcement procedures testify to the impossibility of dissolution of the legislative body of a constituent entity of the Russian Federation in the order of application of par. 4 of article 9 of the Federal law from 6 October 1999. There article has examples of legislation and practice of foreign countries on issues of federal intervention showing that the implementation of such measures is connected with problems in the relationship between the Federal and regional authorities.

Keywords: dissolution of the legislative (representative) body of state power of constituent entities of the Russian Federation, execution of judgments of normative control, the Constitutional Court of the Russian Federation, federal impact.

DOI: 10.12737/art_2018_4_2

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Indigenous Customs and Federal Legislation  Pdf 16

T. A. ZAKHAROVA

postgraduate student at the Institute of Legislation and Comparative Law under the Government of the Russian Federation, senior referent of the State and legal department of the Office of the State Assembly (Il Tumen) of the Sakha Republic (Yakutia)
24/1, Yaroslavsky st., Yakutsk, Russia, 677022
E-mail: bisness_07@mail.ru

Nowadays indigenous ethnic groups live by rules of the state, the rights stated in regulations and duties which they are obliged to carry out as well as other population extend to them. Meanwhile indigenous ethnic groups are special group among the majority which has unwritten rules (customs) which importance for indigenous ethnic groups is not diminished by the fact of their unwritten and which are primary in relation to regulations. In other words, indigenous ethnic groups are faced by a task — to follow the general rules and at the same time not to break the customs which are inherent to them, their culture, activity, understanding and perception of the world and the nature and also the choice between the law and the custom in case if they don't correspond each other. In article the relation of the state to common law of indigenous ethnic groups regarding recognition of their existence by fixing of such recognition in laws and also a ratio of the legislation and common law are considered. The characteristic of the federal legislation and the legislation of constituent entities of the federation is given and as a result the attempt of definition of the place and a role of common law in legal system is made. The possibility of application of common law in courts through the institute of authorized representatives of indigenous ethnic groups at the present stage is examined, special laws of constituent entities in which the rights of representatives are affirmed and prerequisites for application of common law are contained. In article the question of application of common law is considered as a problem of recognition of otherness of these people. Recognition or non-recognition opens a legal status of indigenous ethnic groups among the others, prerequisites for application of common law. In article the question of application of common law is considered as a problem of recognition of unicity of these people. Recognition or non-recognition opens a legal status of indigenous ethnic groups among the others.

Keywords: customary law, indigenous peoples, constitutional law.

DOI: 10.12737/art_2018_4_3

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The Place of the Philosophy of Law in the Legal System  Pdf 16

I. A. IVANNIKOV

professor at the Department of theory and history of state and law of the Southern Federal University, doctor of legal sciences, doctor of political sciences
105/42, Bolshaya Sadovaya st., Rostov-on-Don, Russia, 344006
E-mail: weide02@gmail.com

With the intensive development of legal education in Russia, the philosophy of law is gaining increasing importance. The discipline “Philosophy of Law” since 2011 has become mandatory in the preparation of masters in the specialty “jurisprudence”. Philosophy of law refers to the cycle of the federal component of the Master's educational program, is established by the federal state educational standard and is compulsory, refers to the basic part of the general scientific cycle. Philosophy of law is a theoretical analysis of state and legal phenomena, which begins with an empirical knowledge of political, law-making and law-applying practice, which turns into discourse. The subject of the philosophy of law is a critical analysis of the processes of origin and essence of law, the relationship between law and freedom, law and justice, the interaction of law with morality and other social regulators. The aim of the article is to consider the specific features of the philosophy of law among other legal disciplines. The author proceeds from the fact that it is necessary to distinguish the object and the subject of the philosophy of law, their connection with other legal disciplines. Based on the work of domestic and foreign researchers of the philosophy of law, the article examines the relationship between philosophy and the philosophy of law, the philosophy of law and the theory of law, the philosophy of law and the ethics of law, as well as some other legal disciplines. The author notes the need to study the philosophy of law by lawyers, since this contributes to a critical evaluation of existing political and legal practice and the theory of law, helps not only to adequately understand the world of law, but also to act in an ever-changing political life.

Keywords: philosophy of law, object of the philosophy of law, subject of the philosophy of law, political and legal ideal, theory of law, political and legal values.

DOI: 10.12737/art_2018_4_4

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The Effectiveness of Law-Making through Strategic Planning  Pdf 16

M. V. ZALOILO

senior research fellow of the Department of theory of 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: theory3@izak.ru

The effectiveness and quality of normative legal acts depends on a proper level of their drafting, discussion, expertise, consideration and adoption, that is directly depends on the effectiveness of lawmaking procedures. In this regard, it is important to study effectiveness of law-making and problems of its maintenance taking into account the strategic objectives and needs of the Russian state and society at the present stage. The purpose of this article is determination of the significance of strategic planning tools in providing the effectiveness of law-making. The author analyzes the legislation on strategic planning for determination of its advantages and disadvantages for the purpose of ensuring the effectiveness of law-making; examines the issues of drafting of a strategy of law-making, legal forecasting and planning of legislative activity, the scientific justification of the normative legal acts. The author formulates the following conclusions. It is advisable to include rules on the strategy of lawmaking, the legal forecasts of the development of legal regulation of social relations, current and future plans of legislative work of all subjects of legislative initiative into the Federal law “On normative legal acts in the Russian Federation”, the necessity of which is recognized by scientists and practitioners. Also it is necessary: to supplement the Federal law “On strategic planning in the Russian Federation” with new strategic planning documents — the strategy of law-making, the legal forecasts, plans of legislative work; to provide in this Federal law the requirements of the drafting of these documents, the main provisions of these documents, the terms and the procedure of their adoption, entities responsible for their implementation. It is emphasized that strategic planning in law-making using a scientific potential will allow to avoid legal collisions and their most acute form — the legal conflict.

Keywords: strategic planning, legal forecasting, planning of the law-making activity, program, doctrine, strategy, concepts of development of legislation, draft regulatory legal act, law-making, effectiveness of law-making.

DOI: 10.12737/art_2018_4_5

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The Goodwill of Participants in Internal Procurement in the Context of the Register of Mala Fide Vendors  Pdf 16

O. A. BELYAEVA

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

In the article the issues of formation and maintaining registers of mala fide vendors in spheres of internal and public procurement are investigated. A separate consideration of the matters is impossible as only their comparative analysis allows defining an optimum model of regulation. The research objective is a justification of need to search the unified model of the information resource intended to fix negative goodwill of participants in procurement including the contract system. The objectives of the study are characterizing procurement legislation in terms of grounds for recording negative information about procurement participants, the consequences of putting information in these registers and justifying the legal nature of such registries. The methods of the research are general scientific methods of cognition-dialectical, analysis, synthesis, comparison and analogy, as well as private-scientific methods, i.e. the method of a dogmatic analysis used for the interpretation of legal norms and legal constructions, and formal legal, structuralfunctional and legal modeling. The author formulates the conclusion about the need to unify the legislative regulation of information resources that can have a negative impact on the reputation of participants in internal procurement, and in general are designed precisely to fix such a negative reputation. It is proposed to take as the base model the procedure for the formation and maintenance of the register of mala fide vendors in the field of corporate procurement, arguing these proposals by examples of controversial law enforcement collisions. There is an unusual nature of the registry: putting information in it is a quasi-administrative punishment, but it cannot be considered as a measure of administrative, legal and civil liability. Putting information about the participant of the procurement in this register is based on violations of his / her civil obligations and entails only civil consequences: a possible limitation of legal capacity and goodwill costs. In other words, violations of civil law are mediated by a quasi-administrative sanction, but they again entail civil law consequences.

Keywords: corporate procurement, public procurement, register of mala fide vendors, competition authority, repudiation, business goodwill, administrative responsibility.

DOI: 10.12737/art_2018_4_6

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Legitimate Interest: Concept, Civil and Tax Aspects of the Application  Pdf 16

V. A. TRAPEZNIKOV

head of the Department — deputy head of the Legal service of the Federal Autonomous Institution of the Ministry of Defence of the Russian Federation “The Central sports club of the Army”, candidate of legal sciences
39, Leningradsky ave., Moscow, Russia, 125167
E-mail: trapeznikov29@outlook.com

The objective of the study: to analyze the main approaches to the definition of “legitimate interest” introducing into civil circulation, to differentiate and to compare the provisions of Articles 395 and 317of the Russian Civil Code, highlighting the similar and distinctive features. In modern legal science there is a disseminate understanding of legitimate interest as a service charge for loan value, whose amount is defined by law or a contract and depends on its maturity. At the same time it does not depend on utilization of a loan by a mutuary. Use-of-money interest rate under the Article 3171 of the Civil Code of the Russian Federation is accrued in accordance with the terms of the contract or on the basis of law. Under the terms of the contract and maturity clause, it can be charged monthly, quarterly, at the maturity day, when the loan is repaid or in any other manner. As for the interest under the Article 395 of the Civil Code of the Russian Federation, it is payable only in the event of non-payment, other arrears, illegal withholding, etc. The grounds for establishing and accruing the interest are due to the economic essence of the loan and its main characteristics (maturities, serviceability and recovery), which determine the monetary relations. Legal science, in turn, in the process of determining the legislative control of these relations (the procedure for credit (loan) extension), takes into consideration the economic foundations of the credit (loan). The legislator simply establishes in the general part of the Civil Code those provisions that have already been reflected in the articles of the Second Part of it, which regulates certain types of contracts (loan, credit), extending them to all monetary obligations.

Keywords: legitimate rate, monetary obligation, debtee, debtor, market loan.

DOI: 10.12737/art_2018_4_7

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Issues of Qualification of Illegally Harvested Timber’s Illicit Trade  Pdf 16

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 article raises the questions about the qualification of acts related to the trade of illegally harvested timber, where criminal liability emerged in 2014. The author criticizes the current judicial practice of convictions under the Article 260 and 1911 of the Criminal Code RF against perpetrators of the illegal logging, its further storage, transportation, processing in purpose of sale or sale of illegal logging. The objective: to analyze the judicial practice of the Article 1911 of the Criminal Code RF, distinguishing crimes under the Article 175 and 1911 of the Criminal Code RF, to determine the actions covered by the Article 1911 of the Criminal Code of the Russian Federation. The methodological framework is a set of methods of scientific knowledge. The work uses general science (analysis and synthesis, dialectics) and specific scientific research methods (system-structural, formal-legal). The emergence of a new corpus delicti has set a task for the executor of law to form a practice that adjusted crimes related to illegal logging to the application of the Article 1911 of the Criminal Code RF to (Article 260 of the Criminal Code of the Russian Federation). The paper substantiates the conclusion that this practice does not comply with the law, as in fact the person is hold liable for both illegal exploration of asset and its disposal. The Article 175 and 1911 of the Criminal Code RF are not competing, but adjoining. Under the Article 175 of the Criminal Code, the acquisition or sale of timber harvested as a result of criminal actions (illegal logging of forest plantations under the Article 260 of the Criminal Code of the Russian Federation) should be qualified. The Article 1911 of the Criminal Code covers the actions of persons engaged in the trade of timber harvested in violation of the norms of any branches of law, except criminal.

Keywords: illegally harvested timber, assets obtained in a criminal manner, illegal logging.

DOI: 10.12737/art_2018_4_8

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Identifying Aspects of Understanding the Object of Crime as a Way of Eliminating Contradictions in Its Definition  Pdf 16

V. N. VINOKUROV

associate professor at the Siberian Law Institute of the Ministry of Internal Affairs of the Russian Federation, candidate of legal sciences, associate professor
20, Rokossovsky st., Krasnoyarsk, Russia, 660131
E-mail: VinokurSiblaw@mail.ru

In spite of importance of the crime’s object as a criterion of norms’ systematization of Special part of the Criminal Code of the Russian Federation, and whose qualification process establishment is an initial point, there is not clear and indisputable determination of its concept in the theory of criminal law. Plenty of publications devoted to the object of crime, especially in the last decades, contribute even greater vagueness in understanding of what should be read under this element. On top of that the theory suggests giving up on the object of crime as an element of the constituent elements of offence as it leads to destroying a traditional construction, i.e. corpus delicti. This is a point that pushes to do the research. Evaluating different points of view on the object of crime concept, the author comes to the conclusion that the object of crime is a difficult multilevel concept, which should be considered from axiological point of view as (1) a certain value (the object protected by criminal law), as (2) the legal concept salient being the element of corpus delicti, and as (3) the phenomenon of the tangible and intangible world, where a guilty person commits a crime affecting the above (the object of acts committed). It is necessary to consider not different concepts, but different aspects of the same phenomenon — the object of crime. Public relations protected by the norms of criminal law, as the object protected by criminal law, is the potential object of crime. After the crime committed, public relations exist already in a violated state as the consequences of the crime in a broader sense. Consequently, the object of the crime exists only at the time of committing the crime. Therefore, such aspects of the object of crime as “the object protected by criminal law” and “the object of the crime” are different in terms of meaning, significance, volume and time characteristics. In formulating the dispositions of the norms of the Special Part of the Criminal Code of the Russian Federation, the legislator transfers protected public relations (the subject of criminal-legal protection) to the category of the element of corpus delicti that arises from the moment the relevant criminal law enters into force. The object as the element of corpus delicti based on volume is narrower than the object protected by criminal law, since not all relations are subjects to regulation or their regulation by norms of law is inadvisable. Considering the object of the crime through the selected aspects will allow resolving disputes about the criterion for protecting and differentiating responsibility of infringement on life, the systematization of the norms of the Special Part of the Criminal Code of the Russian Federation and the place of the target in the structure of corpus delicti.

Keywords: object of crime, object protected by criminal law, corpus delicti, target of crime, structure of public relations.

DOI: 10.12737/art_2018_4_9

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Age of Criminal Responsibility of Minors  Pdf 16

N. M. KHROMOVA

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

The purpose of the study is to consider the age of criminal prosecution of minors. Thus, age is an indispensable element of the crime, but the theory of criminal law as it is in law in general has not developed a comprehensive doctrine of age. It is established that in sociology, psychology and jurisprudence there is no unified understanding of what should be understood as the age of the individual. The methodological basis of the study is a set of methods of scientific knowledge, among which the leading role is played by the dialectical method. General philosophical, general scientific and speciallegal methods of research, in particular, the system method of investigation, are used. A historical analysis of the age characteristics of minors in imposition of punishments in Russia has been carried out. It is established that before the 17th Century minors were equated with adults, however in the 18th Century the rules for the punishment of minors have already been defined. In the Penal and Procedural Ordinance of 1845, three age periods were defined. After the October Revolution the age of criminal responsibility had been being constantly changing up to the adoption of the RSFSR Criminal Code of 1964. In the Criminal Code of 1996, when establishing the age of criminal responsibility, there were considered first of all the stages of the formation and socialization of the individual, the expansion of the range of socially significant relations and relations of the minor and the acquisition of social experience. The issues of psychological characteristics of adolescence are touched upon. It is noted that the world practice also lacks a unified approach to the age of criminal responsibility of minors. The doctrinal positions on the decreasing and increasing the age threshold of criminal responsibility are investigated. The author comes to the conclusion that the established age of criminal responsibility is sufficient, since by this age the minor reaches a level of psychophysical development that makes him/her possible to fully realize not only the socially dangerous character of his actions, but also their consequences, and, accordingly, bearing responsibility for them.

Keywords: age, age of criminal responsibility, minors.

DOI: 10.12737/art_2018_4_10

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On the Defectiveness of the Formula of a Disciplinary Offense of a Russian Judge  Pdf 16

M. I. KLEANDROV

chief research fellow of the Institute of State and Law of the Russian Academy of Scien, corresponding member of the Russian Academy of Sciences, doctor of legal sciences, professor
10, Znamenka st., Moscow, Russia, 119019
E-mail: mklean@ksrf.ru

After the amendments to the Law of the Russian Federation “On the Status of Judges in the Russian Federation” in 2013, the disciplinary offense of the judge is considered as his guilty action (inaction) “during the performance of his official duties or outside his official activities, as a result of which the provisions of this law and (or) of the Code of Judicial Ethics, approved by the All-Russian Congress of Judges, were violated. As a result the authority of the judiciary was derogated and the reputation of the judge was damaged”. Such a formula shows the possibility to bring the judge to disciplinary action up to the early termination of his judicial powers (which is also the exclusive prerogative of the qualification Collegium of judges) for violation of the provision of only the Code of Judicial Ethics, in other words for purely ethical misconduct. In addition, there is a problem of disciplinary responsibility of judges - heads of courts, for whom disciplinary responsibility for committing a disciplinary offense in the sphere of its purely administrative and organizational, rather than judicial powers is not provided at all. The aim of the study is to justify the inadmissibility of the mentioned formula of disciplinary misconduct of a judge, allowing them to identify disciplinary (legal) responsibility of the judge from the ethical (non-legal) responsibility. The aim of the study is to provide evidence of the illegality of disciplinary punishment of a judge for committing a purely ethical offense. The basic method of the present research is the general scientific dialectical method of cognition, within which the universal scientific methods are used: structural, functional, analysis and synthesis, induction and deduction, formal-logical and systemic. Also private-scientific methods are used: historical-legal; interpretation of law; comparative-legal; legal modeling; technical-legal; formal-legal, etc. The author substantiates the proposal to abandon the formula of disciplinary offense of a judge legally fixed and operating in practice and proposes a new formula, as well as proposals to improve the organizational and legal mechanism of disciplinary proceedings against a Russian judge. According to the author, their implementation will allow to avoid unreasonable and illegal bringing to responsibility the Russian judges for commission of not illegal, but ethical offenses that will increase adequacy of punishment.

Keywords: judge, disciplinary offense of the judge, disciplinary responsibility of the judge, ethical offense of the judge, ethical responsibility of the judge.

DOI: 10.12737/art_2018_4_11

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Trends in the Development of Federal Public Investment  Pdf 16

O. A. AKOPYAN

senior research fellow of the Department of financial, tax and budget 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: fin@izak.ru

The article discusses the main trends in the development of public investment. The methodological basis of the study is the dialectical method of scientific cognition, as well as general scientific and special methods: system-structural, logical, statistical, observation and description. Methods of documentary analysis, abstraction and generalization are also used. The first part of the study is devoted to general issues of public investment development, as well as the opinions of experts in this field. Then, there is a review of the new investment instrument — a special investment contract. Also the author analyzes the changes in the legislation governing these contracts, gives a description of a draft federal law “On special investment contracts and amendments to certain legislative acts of the Russian Federation” which proposes to make substantial changes to the Tax code of the Russian Federation, Federal law “On amendments to the Federal law “On the innovative center “SKOLKOVO”, describes the innovations in the draft resolution of the Government of the Russian Federation “On amendments to resolution of the Government of the Russian Federation dated 30 October 2014 No. 1119”. The third part of the article presents an analysis of trends and risks in the area under consideration. The necessity of strengthening the non-bank financial sector is substantiated. Special measures are proposed to develop non-bank financial institutions, which will increase investment in the Russian economy. Some risks caused by the special approach of the Bank of Russia to the regulation of the financial sector are revealed. At the end the author makes a brief description of the proposals to stimulate the investment process in the Russian Federation.

Keywords: public investment, economic growth, special investment contract, crisis, bank, nonbank organization, reforms.

DOI: 10.12737/art_2018_4_12

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Legality and Ensuring the Realization, Observance and Protection of the Rights of Citizens and Organizations in Administrative Law Application  Pdf 16

S. V. YARKOVOY

judge of the Arbitration Court of the Omsk Region, candidate of legal sciences
51, Uchebnaya st., Omsk, Russia, 644024
E-mail: om.as@yandex.ru

The article deals with the problem of the correlation of legality of law application of executive authorities, other administrative-public bodies, their officials and ensuring the realization of the rights of citizens and organizations in the course of this activity. The purpose of the study is to establish the interdependence of the legality of administrative law application and ensure, in the course and as a result of its implementation the realization and protection of the rights of citizens and organizations. The objectives of the study are to study and disclose the mechanism of influence of the compliance regime, as well as violations by administrative and public authorities of the requirements of laws and other regulatory legal acts to ensure the implementation and protection of the subjective rights of citizens and organizations. The study used a formal legal method, through which a systematic analysis of the provisions of the Constitution of the Russian Federation, the current federal legislation, judicial practice in administrative cases, which allowed to solve the above tasks. As a result of the conducted research, a conclusion is made that the observance and protection of the rights of citizens and organizations are not part of the rule of law regime, the legality or illegality of administrative law enforcement acts and actions (inaction) should not be evaluated taking into account the offensive or non-occurrence as a result of their issuance (adoption), the commission of negative consequences in the form of violation of the rights of citizens and organizations. Regardless of the occurrence of such consequences, the administrative act, administrative action (inaction), which does not fully comply with or in a certain part with the requirements of the law or other normative legal act, is essentially illegal in full or in an appropriate part. At the same time, it is emphasized that the enforcement of the requirements of legality in the process of administrative application is an indispensable condition for ensuring the realization and protection of these rights, the violation of these requirements may lead to the impossibility of acquiring, confirming and realizing the rights of citizens and organizations.

Keywords: administrative law application, administrative-public body, legality, rights of citizens and organizations.

DOI: 10.12737/art_2018_4_13

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Labor Duties of the Employee in the Scientific and Practical Dimension  Pdf 16

D. V. CHERNYAEVA, T. A. DARBINYAN

D. V. CHERNYAEVA, deputy head of the Department of labor law and social security law of the Law faculty of the National Research University “Higher School of Economics”, candidate of legal sciences, associate professor
3, Bolshoy Trekhsvyatitelsky lane, Moscow, Russia, 109028
E-mail: dchernyaeva@hse.ru

T. A. DARBINYAN, senior lawyer of the Company “ConsultantPlus”
6, Krzhizhanovsky st., Moscow, Russia, 117292
E-mail: tigran_darbinyan@mail.ru

The article deals with the features of understanding of employee’s labor duties from the point of view of labor law, legislation and law enforcement practice. The author considers the problem of broad and restrictive interpretation of the concept of employee’s labor duties from the point of view of the Russian legislator and compares it with judicial law enforcement. He also addresses the issue of the relationship between the concepts of “duties”, “employment function” and “work”. In order to develop a new approach to understanding and solving the problems, the article analyzes the legal nature of the employee's obligations arising in the framework of labor relations as a whole, as well as the terms of the labor contract on labor function. Features of their relation are considered. The paper mainly uses logical and comparative methods of research. As a result of the study, a narrower understanding of the employee's labor duties is proposed; the necessity of distinguishing the employee's duties arising within the framework of labor relations into several types, depending on their characteristics, is substantiated. It is proposed to consider the labor function as a more complex structure consisting of several mandatory elements. Concerning the question of the relationship between employment function and employment duties of the employee the author substantiates the derived nature of the employment duties, which are acting as one of the elements of the job function. Due to the considered problems it is offered to specify some norms of the Labor Code of the Russian Federation, in particular art. 21, 22, 81, 192. Taking into account the new approaches developed by the authors, the ways of improving the institution of disciplinary sanctions in some aspects are proposed.

Keywords: labor duties, labor functions, types of employee’s duties.

DOI: 10.12737/art_2018_4_14

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Fees for a Negative Impact on the Environment as a Mechanism of Economic Stimulation of Environmental Activities  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 the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: ecology1@izak.ru

The fees for a negative impact on the environment is currently one of the main elements of the economic mechanism of environmental activities, which is a form of compensation of economic damage from such effects made within established standards under the state control. The possibility of applying a fees for negative impact on the environment as a financial tool to reduce the negative impact of economic and other activities and to stimulate the actors of these activities to voluntary compliance with environmental requirements, are currently not fully implemented. The main purpose of the study is to review the novelties of legal regulation in the field of fees for the negative impact on the environment, and practical problems raising in the process of their implementation, taking into account the actual explanations of the authorized bodies of state power and case-law. Special attention is paid to the discussion of the functioning of certain elements of the mechanism of payment for the negative impact on the environment, in particular, the procedure for its calculation and adjustment, the procedure for making quarterly advance payments, as well as questions of offset and refund of overpaid payments. The author comes to conclusions about the need to improve the legal mechanism of fees for the negative impact on the environment, in particular, the order of application of rates and special coefficients to them, as well as the order of correction of fees by offset of costs for environmental protection activities conducted by the actors of economic and other activities.

Keywords: fees for negative impact on the environment, polluter pays, environment, environmental protection, environmental activities, environmental safety, economic stimulation.

DOI: 10.12737/art_2018_4_15

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