Contents of issue # 6/2018

Limitation of the Right by Judicial Decisions

V. V. LAZAREV

chief research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor, honored scientist of the Russian Federation
22/24, Bolshoy Kharitonievsky lane, Moscow, Russia, 107078
E-mail: lazarev@izak.ru

The Russian legal system allows restriction of rights and freedoms. According to the Constitution of Russia, if there is a need to limit already established rights, they “may be limited by a federal law...” (Art. 55). The rising question in this article pretends to some novelty. The main thesis of the article is that the rights and freedoms can be limited and in reality are limited on the basis of a federal law, which gives grounds to raise the issue about subjects having the relevant authority. The court is one of them. The author calls attention to such type of criminal punishment as restriction of freedom, which consists in the establishment of a number of restrictions by the court to the convicted person (Article 53 of the Criminal Code of the Russian Federation). Namely the judges, guided by the above rule of the Criminal Code and on the basis of the norms by that this measure of criminal prosecution is provided, must implement law enforcement, each time measuring different constitutional values without attempting to diminish the fundamental human and citizen rights. However, for the author establishing any restrictions as a criminal punishment is open to debate. Due to different circumstances, the state can establish prohibitions and provide responsibility for violation of prohibitions. But these prohibitions should, as a general rule, be administrative and legal, and in criminal law - criminal procedural. Their violation may affect the imposition of sanctions in a criminal case, but does not become an independent corpus delicti. The Constitutional Court points out the inadmissibility of using the means of the criminal law for disproportionate, excessive restriction of rights and freedoms when applying criminal sanctions. The European Court of Human Rights, in its interpretation of Article 5 of the European Convention on Human Rights, also proceeds from this. In essence, the limitations does not allow an extensive interpretation and, especially, to use those that are not provided for by law. With this respect, the possibilities of courts are limited. The article analyzes the case of various court instance from the ECtHR to the lower courts of the Russian Federation. The courts are bound not only by specific norms, but also by the principles of law. The author emphasizes that, along with the principle of the certainty of the law, the principle of proportionality matters in the activities of all state authorities. The Constitutional Court of the Russian Federation determined: no one can exercise such regulation that would infringe on the very essence of one or another right and lead to the loss of its real content. The essence of the constitutional rights cannot be infringed on by the Constitutional Court itself. They are known to be untouchable, being enshrined in the second Chapter of the Constitution.

Keywords: law, act, legal system, rights and freedoms, restriction of right, court, restriction of the law by the court, restriction of the law in judicial practice.

DOI: 10.12737/art_2018_6_1

Limit of Discretion: on the Example of Law Enforcement Activity of Election Commissions

S. A. KHVALEV

chairman of the Irkutsk city No. 3 territorial election commission (Pravoberezhny Okrug), candidate of legal sciences
14, Marat st., Irkutsk, Russia, 664025
E-mail: khvalev_sa@mail.ru

The article analyzes the problems of the limits of law enforcement discretion as conditions that distinct the enforcement of public authorities from arbitrariness and abuse of authority. The scientific approaches reflected in the literature on the understanding of the nature of the limits of law enforcement discretion of public authorities are summarized, and the author's vision of the main shortcomings of existing points of view is presented. The need for a new, so-called structural approach in understanding the margin of appreciation is justified. At the same time, the article focuses on the activities of election commissions as subjects that develop the most important in the life of society law enforcement discretion ensuring development, as well as the logical completion of the electoral process. Separate scientific conclusions of the author concerning the limit of law enforcement discretions are illustrated by the practice of the work of election commissions and courts in the framework of activities to resolve electoral disputes. As goals and objectives of the study is defined the formulation of the meaning, attributes and structure of the limit of law enforcement discretion. In the course of scientific research, the author used such methods of scientific knowledge as analysis, formal-legal method, interpretative method, and also a comparative legal method. As a result, the author made an attempt to substantiate such indications of the margin of appreciation as stability, unity and absoluteness. In the course of the research, the author came to the conclusion that it is necessary to understand the limit of discretion as a holistic socio-legal phenomenon, as well as the allocation in the structure of the margin of appreciation of such elements as a static (permanent) element, i.e. a set of unchanged parameters of the activities of commissions within the election campaign, a situational (variable) element, i.e. a set of criteria reflecting the specifics of a specific electoral law enforcement situation and a dynamic element, i.e. a set of criteria that predetermine the time frame for the development by the election commission of a specific law enforcement discretion.

Keywords: discretion, law enforcement activity, election commission, decision, freedom, authority.

DOI: 10.12737/art_2018_6_2

Restriction of Constitutional Rights and Freedoms of the Individual in the Performance of Military Duty in the Russian Federation

K. I. SLESARSKY

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: slesarski93@gmail.com

The article is devoted to the determination of justification of existing limitations of constitutional Rights and Freedoms of the Individual during the performance of conscription in the Russian Federation. Specificities of legal regulation of Military Duty are noticed. Attention is paid to the peculiarities of the legal regulation of military duty at the constitutional level. Within the framework of the studied problems, the issues of the domestic theory of limitation of constitutional rights and freedoms of the individual are touched upon and proposals for its improvement in terms of terminology are formulated. The main attention is paid to the existing restrictions of specific constitutional rights and freedoms in the performance of military duties. The key problem should be recognized as the establishment of proportionality of restrictions on specific constitutional rights and freedoms of man and citizen in the performance of military duty. The measures taken in the Russian Federation to humanize military service at the call are analyzed and positively evaluated. The author examines norms of domestic constitutional law by the formal legal method and identifies some imperfections of limitations’ legal regulation. The comparative method is used too. The need of using an interdisciplinary approach which takes into account conditions of the modern warfare is noted. The author comes to conclusion that existing limitations of constitutional rights for citizens who performing conscription are excess. The author considers some measures to overcome that problem and the pros and cons of each of them. These measures are: 1) to improve the regulation of constitutional legal status of conscripts; 2) to replace compulsory military service by other forms of military training; 3) to abolish the military draft.

Keywords: conscription, limitation of rights, constitutional rights and freedoms, principle of proportionality, constitutional status of military servicemen.

DOI: 10.12737/art_2018_6_3

Professional Behavior of Lawyers in an Electronic State in Cases of Imperfect Legislation

E. A. PEVTSOVA, N. Ya. SOKOLOV

E. A. PEVTSOVA, professor at 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: pevtsova@bk.ru

N. Ya. SOKOLOV, professor at the Kutafin Moscow State Law University, doctor of legal sciences, professor
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123286
E-mail: havast@mail.ru

Every day each of us leaves a “digital footprin” - about 500 MB of information, which states the reality of the “transparent” world and the open space of people's joint interaction on the planet. In this sense, the electronic state and digital technologies of the “Big Data” era predetermined the openness of the behavior of lawyers to the public and influenced the fact that professional opinion began to exert a great influence on their professional activities. The legal behavior of lawyers in the conditions of the development of the electronic state began to change in its functions, acquiring new features. This also applies to situations in which professionals face an unstructured flow of information, imperfect legislation, legal gaps and collisions. These aspects in modern legal science have not been studied enough and require special attention on the part of theorists of law. The article is based on the results of a study of the behavior of lawyers who have encountered imperfections in legislation, legal collisions, gaps and imperfections in the law. The authors used the method of questioning of 798 lawyers of various specializations, including lawyers, prosecutors, investigators, judges. The analysis of digital indicators allowed us to formulate the conclusions that modern lawyers average the quality and level of the current legislation and state the presence of a considerable number of gaps and collisions in it. When applying the norms of law, judicial practice, the opinion of colleagues with whom they are consulted when choosing the necessary option for resolving a legal problem, is of particular importance to them. Faced with the imperfection of the law, lawyers use the analogy of the law, they try to show activity in initiating new legal norms, although in general their legal activity is insufficient, which is obviously connected with shortcomings, including in the process of legal training of personnel. The study allowed us to conclude that digital and communicative competence are becoming important components of a modern legal professional.

Keywords: legal behavior of lawyers, legal awareness of lawyers, imperfect legislation, professional activity of lawyers.

DOI: 10.12737/art_2018_6_4

Civil Procedural Metaphors: Concept and Scope of Application

E. I. LESKINA

senior lecturer at the Department of labor law of the Saratov State Law Academy, candidate of legal sciences
1, Volskaya st., Saratov, Russia, 410056
E-mail: elli-m@mail.ru

One of the directions of reforming the civil process is the enhancement of the civil procedural culture. An important aspect of this goal is the linguistic literacy of subjects of law, including the correct application of linguistic phenomena, which include metaphors. The foreign civil process finds a place for these phenomena, even at the level of the acts of higher courts. As for the domestic civil process, these categories are in some cases denied as legal means, and in other cases are not perceived as such. In any case, the questions of terminology and the used logical and linguistic means should be elaborated in more detail by science, and the study of legal linguistics with respect to certain branches of law is an actual doctrinal direction. The purpose of the article is to determine the place and forms of manifestation of metaphors in the civil process. When writing the article, methods were used both empirical (formalization, abstraction), and theoretical (axiomatic, verification, analysis and synthesis, hypothetical-deductive, etc.) levels. Under the metaphors of the civil process, the author understands a cognitive phenomenon that has settled in application, reflected in normative acts or judicial practice and is not perceived as a special linguistic tool. To the metaphors in the civil process, the author refers language means, used, as a rule, by courts or scientists for the most vivid expression of the phenomena described. The article reveals the functions of civil procedural metaphors, the areas of their manifestation, and species. It is determined that the civil procedural metaphor is a means of legislative, judicial and scientific activity and is a means of expression and communication in relation to civil and arbitral proceedings. The possibility of using metaphors based on their type and scope is determined.

Keywords: civil process, metaphors, legal linguistics.

DOI: 10.12737/art_2018_6_5

Quality Problems of Criminological Researches: the Origins and Symptoms of the Disease

V. Ye. KVASHIS

chief research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, chief research fellow of the All-Russian Research Institute of the Ministry of Internal Affairs of the Russian Federation, doctor of legal sciences, professor, honored scientist of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: kvashis@mail.ru

The article deals with the current problems associated with the reduction of the quality of criminological researches and publications, the fall of the prestige and relevance of criminology, as well as the awareness of the need for serious changes. The importance of criminological science in modern life is constantly increasing. This is due to a number of objective reasons, among which the main is the growing criminalization of social relations and processes occurring in the development of society. The “criminal matrix” formed in the country is expanding and makes itself felt in virtually all areas of our lives. The criminalization of the entire structure of social relations inevitably leads to stagnation in the economy, to the degradation of culture, education and science, to the growth of absurdity of occurred. On the other hand, historical development is accelerating dramatically, time flies faster, and the number of discoveries and events that change the time, life and people themselves is growing rapidly. An unprecedented technological breakthrough has become an important factor in the development of modern society. The country has entered a new technological era; the new conditions of digital reality are associated with the rapid growth of information flows, intensive development and the ever-increasing introduction of digital technologies in various spheres of public life. The task of legal science is mastering new processes and phenomena occurring in a rapidly expanding digital environment. The transition to the digital world and the availability of new technologies offer colossal opportunities and prospects for the society; at the same time, manifold risks and threats are multiply; criminology is becoming an important tool for their analysis, forecasting and prevention. The task of criminology is the creation of effective means of counteracting destructive forces, the formation of fundamentally new approaches to ensuring national security and cyber security as a supporting structure of digital security. In the new digital reality, criminology is designed to comprehend the prospects for the coming reform of social relations and the formation of a new worldview, to create methodological bases for answering complex challenges. Hence, there is a growing need for objectivity and reliability of scientific knowledge, without which the filling of criminological information with intellectual content is impossible.

Keywords: criminology, science, publications, legislation, law enforcement practice.

DOI: 10.12737/art_2018_6_6

The Concept of the Crime Object in Modern Criminal Law

E. N. KARABANOVA

head of the Department of the Research Institute Affiliated to the Academy of the Prosecutor General's Office of the Russian Federation, candidate legal sciences
15, Vtoraya Zvenigorodskaya st., Moscow, Russia, 123002
E-mail: karabanova.agprf@gmail.com

The concept of the crime object is central to the theory of criminal law; meanwhile its content has been on the edge of scientific controversy for more than a century. The problem is that this category is multifaceted, it has various aspects: philosophical, axiological, social and legal. In order to determine the content of this concept in the modern doctrine of criminal law, the author sets himself the task of identifying the essence of the object of crime as a socio-legal phenomenon, delimiting its concept from another concept of an object of criminal-legal protection, close in meaning, and clarifying the meaning of the scientific term “object of crime”. For comprehensive and objective research, the concept of an object of crime is considered comprehensively from the standpoint of its philosophical, axiological, social and legal content on the basis of analysis of doctrinal sources, domestic and foreign legislation, the practice of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and lower courts of general jurisdiction. The article proves the advantage of the axiological concept of the object of the crime over other concepts that have developed in the domestic theory of criminal law. The questions of the essence of social values, which are the object of criminal-legal protection and the object of crimes, are covered. The difference between the concepts of the object of crime and the object of criminal legal protection is shown, which is based on the different content of object-subject relations. It is substantiated that the object of criminal law protection and the object of crime are different forms of the existence of social value (legal good). Attention is drawn to the non-equal character of the concepts of the object of the committed crime and the object as part of the crime. As a result, the author comes to the conclusion that using the “object of crime” category in modern criminal law is complicated by the variety of concepts of the object of the crime, the terminological proximity to other concepts and the internal polysemy of the term, which requires accurate and maximum precision of its application, with a short explanation, if necessary value attached to the term in question.

Keywords: object of crime, the concept of the object of the crime, legal good, and the object of criminal law protection, the element of corpus delicti, and the sign of corpus delicti.

DOI: 10.12737/art_2018_6_7

Evidence Issues in the Practice of the European Court of Human Rights

Kh. I. HAJIYEV

head of the Department of judicial practice and law enforcement 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: khanlar9999@gmail.com

The evidence institution is reasonably considered as a cornerstone of proceedings. The evolution of legal systems was carried out through systematic reform of procedural legislation, introduction of new elements to strengthen fundamental guarantees of civil and criminal procedure and ensuring the adversarial nature and equality of the parties. Using tradition and features of common and civil law, the European Court of Human Rights strives to observe the democratic principles of proceedings, affecting the organization of its activities in terms of compliance with the fair trial criteria. Recommendations contained in its decisions reflect progressive trends of the both legal systems and pursue strengthening of the guarantees of justice at the national level. The ECtHR is constantly stressing the fact that it is not a regular court and that the task of the national courts is to study and evaluate evidence to establish facts. The ECtHR develops own procedures, improving standards of proof for administration of international justice. At the same time, in its practice, the Court offers criteria developed by it for admissibility of evidence, the right of the accused to remain silent and right against self-incrimination, use as evidence of information obtained by secret agents or by using secret methods of investigation, equal opportunities to the parties for the achievement of their equality and adversarial process. The practice of ECtHR is aimed at equitable organization of the judicial system, where guarantees, legally regulated and observed in practice, are proportional to legitimate expectations of the society.

Keywords: proceedings, evidence, adversarial, equality, presumption, admissibility, trial.

DOI: 10.12737/art_2018_6_8

Wrongfulness (Illegality) of Actions (Inaction) of an Employee of the Internal Affairs Bodies as a Condition of Compensation for Harm in the Order of Recourse: the Problem of Proof in the Context of Ensuring Guarantees of Professional Activity

O. V. KORNEEVA

associate professor at the Department of state and civil law disciplines of the Ryazan Branch of the Kikot Moscow University of the Ministry of Internal Affairs of the Russian Federation, candidate of legal sciences
18, Pervaya Krasnaya st., Ryazan, Russia, 390043
E-mail: olja_korn@mail.ru

He existence of the problem of proving the unlawfulness of the actions (inaction) of the employee of the internal affairs bodies for the purposes of compensation for harm in the course of recourse is due to the absence in the current legislation of clearly defined requirements for the procedure for its establishment, which serve as a necessary guarantee for the reasonable exercise by officials of the discretion in the course of carrying out their professional activities. The absence of such requirements is the reason for the fluctuation of the judicial practice from the application of the evidentiary presumption of unlawfulness and the guilt of the actions (inaction) of the employee in each specific case to the construction of additional requirements for establishing conditions for the satisfaction of recourse claims. The purpose of the study: is to justify the optimal evidentiary standard that is applicable to the establishment of the condition for the unlawfulness of the actions (inaction) of an employee of the internal affairs bodies with compensation for harm in the order of recourse. Objectives of the study: to summarize the judicial practice regarding the definition of the wrongfulness of the actions (inaction) of the internal affairs officer for the purposes of compensation for harm in a regressive manner, to identify and consider the existing approaches, and to suggest ways of solving the indicated problem. The author notes that the widely prevalent approach in court practice, in which the impropriety of actions of an employee of the internal affairs bodies is presumed in view of the subsequent cancellation of his decisions, negatively affects the protection of the rights and legitimate interests of the employee himself, depriving him of the necessary freedom evaluation of evidence and adoption of procedural decisions. The author substantiates the conclusion that the unlawfulness (illegality) of the employee's actions related to bringing to criminal or administrative responsibility requires evidence of the commission of intentional actions aimed at bringing to such responsibility a knowingly innocent person. In other cases, the cancellation or modification of the decision taken by the employee in the performance of official duties should not be considered as a sufficient basis for compensation of harm and submission of recourse claims. It is proposed to make corresponding changes in the legislation.

Keywords: regress, employee, internal affairs bodies, harm, compensation.

DOI: 10.12737/art_2018_6_9

 

The Internal Law of Foreign States as a Source of Private International Law

A. V. EGOROV

rector of the Masherov Vitebsk State University, candidate of legal sciences, associate professor
33, Moskovsky ave., Vitebsk, Republic of Belarus, 210038
E-mail: egorof@yandex.ru

The application of the norms of foreign law is an actual problem of modern law enforcement. Traditionally, the evaluation of foreign law is carried out in accordance with the provisions of the Civil Code of the Russian Federation. The conflict provisions of the code do not give an answer to the question of the nature of the foreign legal norms that must be applied to the national law enforcer. One of the most important problems is the evaluation of the structure and specific content of the domestic law (for subjects of enforcement - “foreign law”) of others states applied by the court. The nature of this source of private international law is heterogeneous. The difference in the content and specificity of the sources depends on the traditions of the legal family into which one or another national legal system enters. The article analyzes the traditional components of domestic law of foreign states - a normative legal act, a legal precedent and a legal custom. Practical recommendations are given on the enforcement of the obligation to apply foreign law from the standpoint of the traditions of a particular legal system. Much attention is paid in the article to the practical distinction between the concepts “legal precedent”, “precedent rule” and “judicial practice”. A legal precedent is considered not as a judicial decision, but as a principle for resolving a substantive dispute contained in several judicial or administrative decisions. The legal doctrine is analyzed separately, both from the point of view of its independent status as a source of foreign law, and from the standpoint of an auxiliary tool in regulating relations complicated by a foreign element. Much attention is paid to the analysis of the peculiarities of sources of law that are unconventional for a certain legal family, which are estimated by the national law enforcer as forms of foreign law to be applied.

Keywords: foreign law, domestic law, source of law, foreign element, international private law, legal precedent, precedent rule, judicial practice, legal custom, legal doctrine.

DOI: 10.12737/art_2018_6_10

On Qualification of Pre-Contractual Relations in International Commerce

O. V. MURATOVA

research fellow of the Department of private international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: olgbelusva@rambler.ru

The article deals with the issue on qualification of pre-contractual relations in international commerce. The author critics the concept according to which the pre-contractual contacts of potential partners are subsumed to the one of the stages of conclusion of a contract. In the author’s opinion, the understanding of negotiations as a stage of conclusion of a contract invalidates its legal effect and doesn’t take into account multidimensionality of this legal phenomenon. The “stage of pre-contractual contacts” may lead to serious, engendering legal consequences of measures for preparing to sign the contract. It seems that in the conditions of modern international commercial turnover, the pre-contractual contacts of the parties should be considered not as a stage of conclusion of the contract, but as a special legal relationship that arises between potential participants of commercial transactions. The author identifies three main approaches to the qualification of the legal nature of pre-contractual relations: 1) pre-contractual relations are considered as a set of obligations for the organization of entrepreneurial activity (i.e. organizational relations); 2) pre-contractual relations and pre-contractual liability are of contractual nature; 3) pre-contractual relations and pre-contractual liability have a special nature, intermediate between the contract and the delict. The author concludes that the pre-contractual relationship is an independent legal relationship in the system of civil law and private international law. It has a special legal nature, evidenced by the presence of an independent subject, pre-contractual rights, obligations of the parties, civil liability for violation by the parties of their obligations, as well as the system of norms of substantive and conflict regulation in the national legislation of various countries and acts of international unification in the field of commercial turnover. The ability of potential counterparties to address both contractual and non-contractual forms of interaction is a feature of pre-contractual relations.

Keywords: pre-contractual relations, international commercial turnover, legal nature, contractual obligations, non-contractual obligations, organizational character.

DOI: 10.12737/art_2018_6_11

Telemedicine: Societal Needs and Possibilities of Legislation

N. V. PUTILO, N. S. VOLKOVA

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

N. S. VOLKOVA, deputy 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: volkova@izak.ru

The article is dedicated to a retrospective analysis of the regulation of relations in the field of information medical technologies abroad and in the Russian Federation. We have a forecasted description of those changes in the factual relations connected with enlarging the field of usage of telemedicine. These changes will require adequate reaction from the side of the law. The article focuses on such practical aspects as electronic document management, remote monitoring of the patient's condition, telecommunication interaction of medical workers and organizations. The purpose of the article is to show the importance of forming an interdisciplinary legal institute of telemedicine in its broader sense than it is given in Federal Law No. 242-FZ of July 29, 2017 "On Amending Certain Legislative Acts of the Russian Federation on the application of information technologies in the field of health protection" on the basis of the analysis of foreign experience and Russian practice. The basis for the study was a combination of methods of formal and legal analysis of the text of regulatory legal acts and methods of system analysis, predicting and modeling as well as a comparative legal method. According to the results of the study, the authors provide a systematic description of relations in the field of telemedicine; show the history of their formation, taking into account different points of view; indicate the directions of improvement of the Russian legislation on the protection of health of citizens. During the analysis, the authors prove that the understanding of "telemedicine" or "telemedicine technologies" in the domestic legislation and at the level of the EAEU is much narrower than in foreign practice, and conclud that it is necessary to improve the norms of Russian law.

Keywords: telemedicine, digital health, digital technology, IT, model act, foreign legislation.

DOI: 10.12737/art_2018_6_12

Features of Institutional Development and Banking System’s Legal Regulation in the Russian Empire

N. B. TOPORNIN

associate professor at the Department of European law of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation, associate professor, candidate of legal sciences
76, Vernadsky ave., Moscow, Russia, 119454

The history of the emergence and legal regulation of banking activities in tsarist Russia is still has some “white spots” and requires additional scientific research. Undoubtedly, the experience gained in the creation and operation of credit institutions of Imperial Russia has not lost its academic and practical significance now. In this regard, the activities of banking organizations in the XVIII - beginning of XX century represents an important knowledge for the understanding of the formation of the country's banking system until the present day. The purpose of this article is to study the organizational and legal aspects of banking regulation in Imperial Russia. Within the framework of the study the following tasks were set: to determine the role and importance of the monarchy institutions in the formation of the Russian banking system; to consider the legal framework for the functioning of credit institutions; to conduct a brief analysis of the activities of the largest commercial banks and to study the structural organization of Russian banks, the forms and methods of their activities. Within the analysis of the historical material, we used chronological, historical-dialectical and comparative legal research methods. The first acts of state regulation of the banking sector in Russia belong to the historical period of the middle of the XVIII century, but the most significant changes in banking are associated with the era of the reign of Emperor Alexander II, when the State Bank of the Russian Empire was founded and economic conditions for the development of commercial credit institutions in the country were appeared. By the early twentieth century Russia has developed a stable three-tier structure of the banking system, however, it was not without serious shortcomings. The state Bank of Russia was highly dependent on the policy of the Ministry of Finance of the country and did not have the necessary legislative authority for the development of the domestic banking system and monitor the activities of commercial credit institutions. At the same time, by the beginning of the First World War in Russia, the banking system had become an important part of the economy, there were more than 600 credit institutions and more than 1800 Bank branches in the country. The paper studies the development of the Russian banking sector before the October revolution of 1917.

Keywords: Russian Empire, noble banks, land banks, commercial credit institutions, credit societies, State Bank of the Russian Empire, decrees of the Emperor, banking, commercial credit.

DOI: 10.12737/art_2018_6_13

Anti-Corruption in Labor Relations

N. A. ABUZYAROVA

leading research fellow of the Department of economic-legal problems 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: abuzyar2013@yandex.ru

Following the ratification by the Russian Federation of the United Nations Convention Against Corruption of 31 October 2003, the Russian Federation assumed the obligation to bring certain norms of labor legislation into line with the requirements of the Convention, which significantly expanded the restrictions, prohibitions and obligations in anti-corruption labor legislation, which contributes to the objectives of overcoming corruption in labor relations. Based on these provisions, the paper analyzes the anti-corruption nature of the articles 2, 21, 22, 56, 57, 137, 138, 142, 3491, 3492 of the Labor Code of the Russian Federation, improvement of the anti-corruption labor legislation is offered. The paper investigates the methodological foundations of corruption in labor relations and the methodology of the fight against corruption in organizations. According to the author, to ensure law and order and to overcome corruption, it is necessary to charge each organization with the responsibility of drawing up annual work plans for combating and preventing corruption to minimize and (or) eliminate the consequences of corruption offenses. Also, to overcome corruption in organizations, it is necessary to impute the duties of each organization to draw up annual work plans for combating and preventing corruption to minimize and (or) eliminate the consequences of corruption offenses. Also, the anti-corruption policy of the organization should include a list of specific activities that the organization plans to implement to prevent and combat corruption, in addition, it is necessary to develop a methodology for measuring corruption in labor law. The author analyzed the corruption of violations of labor law in the classical (solid) corruption, examined the relationship between the concepts of “conflicts of interest” and “labor disputes”, their relationship, peculiarities and differences. There is no doubt that the basis of overcoming corruption in labor relations is a high degree of protection of employees by the provisions of labor legislation. According to the author, the expansion of labor rights to be protected, the identification of new sources of corruption threats to these rights and the search for ways to overcome them, prohibitions, restrictions, duties in labor law is essentially a permanent process.

Keywords: corruption, anti-corruption norms, representatives of the employer, personnel corruption, anti-corruption legislation, prohibitions, restrictions, liability, conflicts of interest, labor disputes.

DOI: 10.12737/art_2018_6_14

Does “Scopus” Bear a Relation to Science of Constitutional Law?

V. V. EREMYAN

head of the Department of constitutional law and constitutional proceedings of the Peoples’ Friendship University of Russia, doctor of legal sciences, professor
6, Miklukho-Maklay st., Moscow, Russia, 117198
E-mail: v.v.eremyan@yandex.ru

The article presents a critical analysis of the current trends of "internationalization" of social and scientific research, including legal research, carried out by domestic scientists. The purpose of this work is to demonstrate the relevance of the "chosen" vector of development of domestic research in the social and scientific sphere and invite the professional scientific community to discuss the future of Russian legal science in the aspect given in the article. The tasks set within the framework of achieving the goal of the work are to show the controversy based on the provision of a relatively high evaluation of the publication of works in foreign scientific journals of criteria for determining the effectiveness of scientific staff, the excessive requirements for scientists in the absence of significant interest in the results of their research by representatives of foreign, the hopelessness of publishing the results of domestic research in foreign scientific journals due to the well-established position of the foreign scientific community on a variety of issues of social and scientific, and, in particular, legal, problems, other interpretations of which are unacceptable to foreign science for a variety of reasons. The methods used in this work are analysis, description, forecasting. Speaking about the process of joining the Russian science to the "global" discourse, the author concludes about the incompatibility of the declared goal, which is to stimulate scientific activity, and the measures taken to achieve this goal, providing for the publication of scientific works in foreign journals as a mandatory requirement to the results of scientific activity. The author also concludes that the increase in the importance of publications in foreign scientific journals in the evaluation of the activities of Russian scientists engaged in research in the field of social Sciences, can lead to the rejection of domestic scientific traditions and the loss of the fundamental nature of legal science.

Keywords: education, research, social sciences, constitutional law, Scopus, Web of Science.

DOI: 10.12737/art_2018_6_15

Review of the P. P. Serkov’s monograph “Legal Relationship (Theory and Practice of Modern Legal Regulation)” (Moscow: Norma, 2018. 1600 p.)

S. V. PCHELINTSEV

To the Anniversary of Academician of the Russian Academy of Sciences Taliya Khabrieva  Pdf 16

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