Contents of issue # 11/2013
The Letter and the Spirit of the Russian Constitution: 20 Years’ Experience of Harmonization in the Light of Constitutional Justice
N. S. Bondar
doctor of jurisprudence, professor
E-mail: bond@ksrf.ru
Based on 20-year-old experience of the constitutional development of Russia and the generalization of practice of the Constitutional Court of the Russian Federation in the article there revealed the interrelation between external, formal-legal and internal, sacred principles of the Constitution of the Russian Federation of 1993 and its spirit. In accordance with the methodology of world outlook and legal pluralism, a combination of legal positivism and natural law in the Constitution, and with regard to the legal and doctrinal nature of decisions of the Constitutional Court of the Russian Federation, there revealed the role of constitutional justice as an institution of social and cultural harmonization of its letter and spirit, the formation of a «live» (court) constitutionalism.
Keywords: the Constitution of the Russian Federation, the Constitutional Court of the Russian Federation, constitutional justice, constitutionalism, positivism, natural law, judicial constitutionalism.
DOI: 10.12737/1141
Change of Constitutional Law Status of Constituent Entity of the Russian Federation
A. N. Chertkov
doctor of jurisprudence, associate professor
E-mail: const@izak.ru
In article the constitutional bases of change of the status of the subject of the Russian Federation are analyzed. Prospects of adoption of the federal constitutional law on the matter, its basic provisions are predicted. Stages of change of constitutional legal status of the subject of the Russian Federation, the main directions of realization of this process and its restriction are offered.
Keywords: state, law, subject of the Russian Federation, constitutional status, constitutional legal status, subject structure, territorial organization, asymmetry of subjects, status unification.
DOI: 10.12737/1142
Systematic Structural Analysis of the Categories «Intended Purpose» and «Permitted Use» in Natural Resources Branches of Law
A. P. Anisimov, N. N. Melnikov
A. P. Anisimov, doctor of jurisprudence, professor
N. N. Melnikov, doctor of jurisprudence
E-mail: anisimovap@mail.ru
Legal designs «purpose» and «allowed use» reflect objectively existing requirement of establishment of the general and special legal regimes of natural resources. Definition of types of allowed use of the land plots can be considered as specifying in relation to a categorization and zoning a way of management and definition of a legal regime of lands and other natural resources.
Keywords: purpose, permitted use, land category, land settlements, zoning, forest land, ground water resources, subsoil, objects of the animal world.
DOI: 10.12737/1143
On the Constitutionality of Extrajudicial Subjection of Workers to Material Liability
M. S. Sagandykov
PhD in law, associate professor
E-mail: mss_lawyer@mail.ru
Article contains the analysis of problems connected with procedure of compensation of damages, which the employee caused to the employer. The question of the constitutionality of the procedure of compensation of damages by the employer irrespective of a consent of the employee is considered. The employee needs to give more possibilities for the protection of constitutional rights when damage is compensated extrajudicially.
Keywords: the Constitution of the Russian Federation, a material responsibility of an employee, procedure of compensation of damages, deduction from salary.
DOI: 10.12737/1146
Fiscal (Tax) Sovereignty and Its Scope in Integration Bodies
I. A. Khavanova
PhD in law
E-mail: ahavanov@mail.ru
The author analyses the matter of the fiscal (tax) sovereignty, tax jurisdiction, tax competition of the states, defines trends in development of the tax sovereignty and its borders in the course of integration. The article reveals some problems of the interaction of the international and national tax law.
Keywords: tax policy, international taxation, fiscal (tax) sovereignty, tax competition.
DOI: 10.12737/1206
Features of Administrative Procedural Legal Personality
O. V. Muza
PhD in law
E-mail: ovm_ol@ukr.net
The theoretical essence of the administrative process legal personality, the concepts of administrative capacity and capability are analysed, the legal status of the subjects of administrative law in the administrative legal process relations is grounded.
Keywords: administrative process legal personality, administrative process, administrative legal process relations, body of authority, administrative activity.
DOI: 10.12737/1207
Features of Compensation of Damage in Judicial Activity
N. M. Khromova
E-mail: hromova-nm@yandex.ru
The questions of tort in the criminal process, the implementation of protection of subjective civil rights by declaring a civil claim in the criminal proceedings, as well as issues related to the application of civil action in a special manner the court decision with the consent of the accused with the accusation, and questions of its appeal.
Keywords: tort, civil action, special order of the court decision with the consent of the accused with the accusation.
DOI: 10.12737/1208
Reduction of Forfeit by a Court: Notion and Meaning
N. L. Bondarenko
doctor of jurisprudence
E-mail: 2iu@tut.by
The penalty is one of the most demanded ways of providing performance of obligations. Сivil Сode of Republic of Belarus allows possibility of penalty reduction if it is obviously disproportionate to consequences of violation of the obligation. The legislation doesn’t contain the list of the bases and limits of decrease in a penalty, and law-enforcement practice doesn’t differ uniformity. Proving expediency of preservation of norm about the right of court to decrease in a penalty, the author gives reason for need of its adjustment.
Keywords: obligation, contract, creditor, debtor, penalty, penalty reduction.
DOI: 10.12737/1168
Limitations of Fundamental Human Rights and Freedoms in International Law and Novations in the Russian Criminal Legislation
Yu. S. Romashev
doctor of jurisprudence, professor
E-mail: romashev_us@mail.ru
The author analyses new amendments related to state secrets protection: amendments to Article 275 ‘High Treason’, Article 276 ‘Espionage’, Article 283 ‘Disclosure of a State Secret’, and adopted Article 283.1 ‘Illegal Receipt of Information Constituting a State Secret’ of the Criminal Code of the Russian Federation in respect to their conformity with acceptable restrictions of fundamental human rights and freedoms. Special attention is paid to theoretical and action-oriented aspects of restrictions of fundamental human rights and freedoms. The author investigates relevant provisions of international documents, practice of the European Court of Human Rights, doctrines of leading experts in this sphere. The author notes that the criteria for restricting fundamental human rights and freedoms should be established entirely under the law and be indispensable and applicable in a democratic society, be aimed at the protection of national security and public order. The author draws the conclusion on the urgent character and timeliness of introducing the abovementioned novations into the Russian criminal legislation, and their conformity with generally recognized principles and rules of international law.
Keywords: international law, international human rights law, criminal law, restrictions of rights and fundamental freedoms, freedom of information.
DOI: 10.12737/1209
Institutions of Interaction of Federation and States in Australia
T. I. Chursina
E-mail: foreign2@izak.ru
This paper investigates the basis for interaction between Australian Commonwealth and states, identifies its characteristics and optimal instruments for its establishment. Collaborative actions of states in settlement of issues has led to the consolidation of a specific form of federal relations in the Commonwealth of Australia — «cooperative federalism».
Keywords: Australia, federation, states, cooperative federalism, Constitution, interaction, Council.
DOI: 10.12737/1165
Municipality as a Subject of Labor Legal Relations
E. N. Bondarenko
doctor of jurisprudence
E-mail: theory@izak.ru
Some problems of municipality as subject of the labor law, in particular its right subjectivity and a field of activity are investigated.
Keywords: municipality, employer, labor right subjectivity, area of jurisdiction.
DOI: 10.12737/1145
History of State and Law as an Independent Scientific Specialty
A. A. Demichev
doctor of jurisprudence, professor
E-mail: aadem@bk.ru
In the article it is proved that the history of state and law should be an independent scientific specialty. The author analyzes the subject of the history of state and law, the specifics of the scientific novelty in the historical and legal research, offers criteria of differentiation of history of state and law with branch legal disciplines. Also measures for improvement of quality of examination of historical and legal dissertation researches are offered.
Keywords: history of state and law, scientific specialty, expert analysis of dissertations.
DOI: 10.12737/1166
On the Right of Persons, Which Did not Participate in a Case, to Cassation Appeal
D. I. Kovtkov
E-mail: study@izak.ru
In article analyzes and discusses controversial issues related to the right to appeal in cassation court the judicial decisions by persons who did not participate in the court case, but the rights have been violated a judicial acts.
Keywords: civil procedure, arbitration process, cassation proceedings, appeal of judicial acts, persons which did not participate in the consideration of the case.
DOI: 10.12737/1167
