Contents of issue # 11/2014
Justification of the Idea of Implementation of Judicial Decisions in Legislative Acts
V. V. Lazarev, D. A. Fursov
V. V. Lazarev, doctor of jurisprudence, professor
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
22/24, Bolshoy Kharitonievsky pereulok, Moscow, 107078, Russia
E-mail: Lazarev@izak.ru
D. A. Fursov, doctor of jurisprudence, professor
Russian State University of Justice
69, Novocheremushkinskaya st., Moscow, 117418, Russia
E-mail: fursovda@yandex.ru
In making legislative initiatives rarely turn to the judicial practice. Systematic approach to jurisprudence as the primary source, the supply lawmaking, in domestic science to date does not exist. The authors justify the need for fundamental analysis (precedent) judgments concerning the possibility of the implementation of the legal positions of the courts in the legislation. The problem is not confined to the perception of the provisions established by the constitutional courts or courts of interstate. The general courts are also involved in rulemaking. National courts in some cases make fundamental decisions. During judicial proceedings is born sometimes less, and even more abstract rule, the rule created by the legislator. Court decisions made at the gaps in the legislation always seen a new regulation that deserves to become a full-fledged norm through a special procedure for the perception of the legislator. In article identifies the main directions of future activities of the forthcoming implementation of the idea and their doctrinal support. The authors conclude that in the Russian context acceptable and can be effective not only continental approaches to jurisprudence. The Institute of Legislation and Comparative Law under the Government of the Russian Federation established a department entrusted with the relevant work.
Keywords: court, judgment, implementation, legal positions, precedent, monitoring, innovation, source of law, improvement of legislation.
DOI: 10.12737/6003
Soft Law and the Rule of Law
Yu. B. Fogel’son
doctor of jurisprudence
National Research University “Higher School of Economics”
20, Myasnitskaya st., Moscow, 101000, Russia
E-mail: yfogelson@hse.ru
This is the second paper from the series of two papers. In the first paper based on the communicative approach the main attributes of soft law in modern legal discourse were considered and their study showed that the modern legal systems moving from mono(state)centricity to a polycentricity. In this paper, through the prism of various legal theories the causes of this phenomenon are discussing. The research shows that the exhaustion of the capacity of the state both in regulation and in dispute resolution dictates the deviation from the legal monism and decentralization of law. It is also showing that some kinds of decentralization of law do not retain legal clarity and rule of law. Decentralization of law by creating a field of homogeneous legal communications does not allow preserving legal clarity, whereas polycentric one does allow.
Keywords: soft law, legal clarity, polycentric legal system, rule of law.
DOI: 10.12737/6210
Limits and Technique of Concretization of Legal Rules in Lawmaking
M. V. Zaloilo
PhD in law
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: theory@izak.ru
The article is devoted to the analysis of concretization of legal norms in lawmaking as the means of juridical technique, and also to the exposure of the limits of lawmaking juridical concretization. The objective-subjective nature of the concretization of legal norms is argued. The cases of obligatory use of the means of concretization of legal norms in lawmaking are revealed. The author identifies hierarchical, spatial, substantive and competence limits of juridical concretization in lawmaking. The author formulates a conclusion that the main limitation of lawmaking juridical concretization is unacceptability of formulating too casuistic rules and of creation of excessive legal regulation. Further concretization of legal norms should be carried out with consideration of specific social relations in the process of realization of law.
Keywords: concretization, legal norms, lawmaking, normative legal act, uncertainty, limits, juridical technique, competence, hierarchy.
DOI: 10.12737/6005
Local Legal Acts of Medical Institutions
N. Sh. Khzanyan
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
Е-mail: Norair_hzanyan@mail.ru
This article focuses on problem of local lawmaking at state governmental establishments in Russia, questions of legal relations between state and public health institutions, justification of specific proposals and recommendations, that aimed to improving institutional and legal framework of public health institutions, clear regulation of the public health institutions with the relevant local regulations in order the rights of the patient. Particular attention is given to the development and publication of local legal acts, and the key violations are also highlighted here. Particular attention is paid to the development and publication of local legal acts, key violations have been outlined. Subjects of lawmaking, the concept and types of local legal acts in the activities of public health institutions, the grounds of origin, as well as the importance of local legal acts as instruments of decentralized selfregulation in a structure operating in the country of legal regulators are identified. Some practical recommendations for the development of local regulations aimed on improving the organizational and legal bases of maintenance of health service are given.
Keywords: local legal act, public health institutions, medical activities, charter of public health institutions, regulations, rules, orders, ordering, centralization, law-making, decentralization.
DOI: 10.12737/6067
Legal Status of Local Self-Government: Changes and Expectations
V. I. Vasil’ev
doctor of jurisprudence, professor
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: const@izak.ru
In the article the sense and value of the Federal law of 27 may 2014 No. 136-FZ are revealed, the changes made by it in system of local government, and also the competentional status of municipal bodies are analyzed. In particular, the Law assigned to rural settlements the minimum list of questions of local value. It is underlined dual character of the document, restrictions of organizational independence of bodies of local authorities are critically estimated. On the one hand, the Law approaches municipal authority to the population, optimizes the functional maintenance of various levels of this power, and on the other hand, weakens an intrinsic basis of local government, limits its organizational independence, strengthens in it the state beginning. It is underlined that in application of the new law a lot of things will depend on public authorities of subjects of the Russian Federation. Expansion of legal possibilities of the regional authorities in the solution of questions of the organization of local government simultaneously leads to narrowing in this sphere of possibilities of municipalities.
Keywords: local government, the Federal law of 27 may 2014 No. 136-FZ, municipal districts, powers of subjects Russian Federations, organizational possibilities of municipalities, law application.
DOI: 10.12737/6006
Legal Regulation of Priority of Competing Claimants of Assigned Claim
A. S. Prokof’ev
PhD in law
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: alexprok86@gmail.com
In the present article the author analyses an important aspect of conflict of laws regulation of the assignment, namely, competing claimants’ priorities and other relevant issues such as proprietary aspects of assignment. Competing claimants legal notion includes the following types of persons: creditors of the assignor, insolvency administrator and other assignees. All of them may make claims in the right assigned and thus imperil assignee’s rights. Existing legislation in the area of private international law and the assignment of claims as well as the legal positions in the case law and doctrine are examined in the article. Foreign experience regarding this choice of law problem is elucidated from the comparative law perspective: different approaches are distinguished and examined therein. There are four approaches based on different connecting factors: law of the assignment contract, law of the assigned claim, law of the assignor’s location, law of the debtor’s location. Author examines each of the approaches, their advantages and disadvantages and other legal implications.
Keywords: private international law, comparative law, conflict of laws regulation, assignment of claims, cession, finance, rights of third parties, competing claimants, priority.
DOI: 10.12737/6007
Property Immunity for Single Housing Accommodation of Citizen: Ensuring Balance of Rights of Creditors and Debtors
D. B. Savel’yev
PhD in law
Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, 123995, Russia
E-mail: dmitr.savel-ev@yandex.ru
The article analyses the position of the Constitutional Court of the Russian Federation on the problem of ensuring of rights of creditors and debtors while applying the immunity of property against arrest of the only living quarters. According to the definition of the notion “evident excess of reasonable need in living quarters”, the author concludes that this criterion may be applicable only on condition that the law will fix two values of housing that is calculated in living space per person: minimally required and excessive. At the same time the author tells that the present normative regulation guarantees enough the preservation of balance between constitutional rights of debtors and creditors and any changes in law may cause risk of abuse of rights from the part of creditors. The best way would be to let arrest the only housing of a debtor-citizen only in the context of procedure of bankruptcy of citizens.
Keywords: living quarters, right to housing, the balance of interests, norms of the minimal floor space, executive manufacture, mortgage.
DOI: 10.12737/6068
Social Guarantees of Protection of Judges and their Family Members
V. L. Barankov
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: social7@izak.ru
In a scientific article examines the social protection of judges and their families, as one of the guarantees of the independence of independent judges. The article describes the social guarantees for health services judges and members of their families, their security of life and health, property insurance, judges fare to the resort, the spa treatment. The article discusses that when an insured event occurs judges the right to social compensation for damage caused as a result of an accident at work or occupational disease, in terms of money paid or compensated by the insurer to the insured by the Social Insurance Fund.
Keywords: social rights of judges, medical service of judges, courts of general jurisdiction; life and health insurance.
DOI: 10.12737/6069
Defects in Environmental Law: Notion and Types
N. I. Khludeneva
PhD in law
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: khludeneva@mail.ru
The current practice of legal regulation of the environmental protection shows that the environmental law potential to provide public and private environmental interests is not high enough. There is a problem of defects in the environmental legal requirements caused by a variety of factors and required an adequate solution among the main reasons for limiting the regulatory potential of the environmental law. Defects of legal regulation of the environmental protection in Russia not only reduce the effectiveness of the mechanism of ecological and legal regulation, but also attempt to minimize the society and the state to create favorable conditions for human existence in the environment. The problem of the environmental law defectiveness has many aspects. It includes a number of issues related to the study of the properties of the environmental law, the nature of the category of “defects in the environmental law”, the causes of defects in the environmental law and others. The content of the category of “defects in the environmental law” as well as the classification of the defects of the legal regulation of the environment protection are investigated in this article.
Keywords: defects in the environmental law, types of defects in the environmental law, effectiveness of the environmental law.
DOI: 10.12737/6016
To the Question of Classification of Sources of Contemporary English Criminal Law
N. A. Golovanova
PhD in law
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: foreign1@izak.ru
The article deals with the development of the English criminal law at the current stage, which can be characterized as a period of expansionism of criminal law in many European countries. It explores the following issues: the codification of criminal law, the ratio between primary and secondary legislation (statutory and regulatory), introducing criminal liability, the basic directions of development of criminal law — the removal of outdated rules, the establishment of new offenses, which have not been previously known to English law; increasing (hardening) penalties for certain crimes, as well as increasing the application of civil sanctions in addition to criminal penalties. On the example of the statutes which have come into force in recent years, the author demonstrates a legislative mechanism employed during the process of legislature — the use of codifying statute (mini-codes), non-criminal legal acts, special comprehensive laws on criminal justice, published periodically in the UK. Given that most of the crimes continues to be formed on the cumulative level of secondary legislation, the article analyzes this kind of acts, in particular in the field of migration policy, environmental protection and consumer protection. The article also examines the introduction civil sanctions for certain regulatory offences in the UK.
Keywords: criminal law, codification, mini-сode, primary legislation, secondary legislation, statutory offense, regulatory offense, criminal penalties, civil penalties.
DOI: 10.12737/6070
Form and Content of Principles of Civil Procedural Law
A. S. Fedina
PhD in law
Tver State University
22, 2nd Griboedova st., Tver, 170021, Russia
E-mail: as.fedina@mail.ru
The article deals with studying of the form and contents of the principles of law of civil procedure, their correlation. The content of the principle is studied through its structure as a totality of its imperatives and properties. According to the author, organization of principles of law of civil procedure is actually the composition and correlation of theirs parts. Every principle of law of civil procedure includes separate compulsory law requirements, closely connected with each other. Special attention is paid in the article to the nature and meaning of exceptions in theprinciples of law of civil procedure. In the author’s opinion, in a wide-sense the content of the principles is revealed through the whole complex of its law properties — systemacy, standards, formal distinctness, being compulsory, etc. Therefore the content of the principles of law of civil procedure is the integrity of all the components of their properties (features) and elements. The form of fixing of the principles of law of civil procedure expresses organization of their contents in the law of civil procedure. The article deals with forms of fixing of the principles of law of civil procedure as the principles of ideas or norms-principles. The content of the principles of law of civil procedure depends on the development of science, and their form — on the development of the law. Since scientific law doctrine is always more dynamic than law-making activity, the contents of the principles leaves behind their form.
Keywords: principles of law of civil procedure, form, content, structure, exceptions, law of civil process.
DOI: 10.12737/6087
Protection of Rights of Rightful Owners in Case of Arrest of Property
N. V. Ostroumov
PhD in law
Lobachevsky State University of Nizhny Novgorod (National Research University)
23, Prospekt Gagarina, Nizhny Novgorod, 603950, Russia
E-mail: ellada.abdullaeva@yandex.ru
This article is devoted to the analysis of the current Russian legislation, the theory and practice of judicial protection of the rights of legal owners when applying of security measures by the bailiff — performer in respect of their property. The article presents the ratio of concepts such as “exemption of property from impose arrest” and “exemption of property from arrest”, “exemption of property from arrest” and “exclusion of property from property inventory”. The author considers the ways to protect the legitimate owners when imposition of impose arrest of property. The main attention is paid to the problem of defining the legal nature of the lawsuit about the exemption of property from arrest or its exclusion of property from property inventory. On the basis of study of scientific approaches to this problem, the existing arbitration practice, the author singles the distinctive features that characterize a special way to protection of legitimate rights when imposition of impose arrest of property. The article listed the shortcomings of the current legislation, the lack of unity of views theorists and rather conflicting arbitration practice.
Keywords: debtor, legitimate owners, right of ownership of property, imposition of impose arrest of property, ways to protect the legitimate rights.
DOI: 10.12737/6088
Contentious Issues of Legislation on Administrative Liability of Legal Persons
V. A. Seleznev
PhD in economics
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: seleznev-vladimir@yandex.ru
There are legal entities administrative responsibilities points considered in the article. It is noticed that the main tendency in the Russian Federation Administrative Violations Code (AVC of RF) changes are the administrative responsibility aggravation, itemization of the existed and initiation of new administrative violations sets. The separate AVC of RF norms sanction a considerable minimal value of the administrative financial penalty for legal entities that substantially limits the freedom of enterprise and the private ownership rights. In recognition of the mentioned tendency the point of the possibility to sanction an administrative financial penalty in the lower than the lowest level taking into account the property status and financial situation of the legal entity is reasonable. Indicated the necessity of administrative punishment kinds systematization, the correlation of administrative punishment and applications criteria ascertaining, foreseeing the possibility of their replaceability. Considered the examples of the administrative violations court practice, for which the relevant article of AVC of RF prescribes the alternative punishment as a financial punishment or administrative suspension of the activity. Analyzed the curt legal stance concerning the replacement of the administrative financial punishment to the administrative suspension of activity. Proved the conclusion that the assignment of a punishment as an administrative financial punishment, which minimal value considerably exceeds one hundred thousand rubles, can substantially affect the company financial and economic activity and make worse it’s situation more than assignment of a punishment as an administrative suspension of activity.
Keywords: administrative violations, administrative responsibility, sanction, administrative punishment kinds systematization, administrative financial penalty, administrative suspension of the activity, court practice, legal entities, constitution principles.
DOI: 10.12737/6017
Limits of Exercise of the Right of Legislative Initiative by Supreme Judicial Authoritie
E. S. Ganicheva
PhD in law
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: civil@izak.ru
The article analyses the features of the realization of the right of legislative initiative by highest judicial authorities of the Russian Federation. The Constitution of the Russian Federation establishes the following limitation For these subjects: The Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation can introduce bills to the State Duma on the relevant issues within their competence. The competence of superior courts includes major destinations or spheres of activity, functions, powers of investigation of categories of civil, criminal and administrative cases as well as cases on the constitutionality of the act. During the proceedings the courts apply the rule of laws regulating those or other relationships. However, it does not mean that the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation have the right to initiate the legislative process in order to change any act that can be applied during proceedings.
Keywords: legislative process, right of legislative initiative of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, competence of the public authorities, competence of superior courts, judicial jurisdiction, support of courts.
DOI: 10.12737/6089
