Contents of issue # 12/2014
Problems of Systematization of Migration Legislation
L. V. Andrichenko
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: lvandr@mail.ru
In Russia, an extensive array of legal acts involved in the regulation of migratory relationship that gives rise to the recognition of migration law as an independent branch of the Russian legislation. However, the existing problems caused by duplication of the legal regulation of migration relations with the various regulations, a lack of balance in the provision of legal regulation of certain areas of migration relations, as well as the presence of gaps and conflicts in their legal regulation lead to disturbances in the system approach to the development of migration legislation. This requires a qualitatively new approaches to the development of migration legislation, based on the use of the codification of ways of constructing it.
Keywords: migration legislation, migration, migrant, entry, exit, administrative expulsion, deportation, readmission, foreign workers.
DOI: 10.12737/6569
Judicial Reform of 1864: Significance and Historical Legal Assessments
K. P. Krakovskiy
doctor of jurisprudence
The Russian Presidential Academy of National Economy and Public Administration under the President of the Russian Federation
82, Prospekt Vernadskogo, Moscow, 119571, Russia
E-mail: theory@izak.ru
One century and half disputes in historical and law literature around the phenomena of the Court reform of 1864 have been leading. The subjects of disputes are the content of the reform in general and its new principles and institutions in particular. Sometimes discussions around court reform are under influence of political juncture. The article is devoted to the analyses of some disputing problems of the preparation, realization and content of the Court reform of 1864. One of such question is a problem whether the Court reform of 1864 was timely, and whether Russian people were ready to accept its progressive principles and institutions. Also in the article the problem of two approaches, two ideologies, two schools of development of state and law — “the historical” and “the realistic” was researched. Author comes to the analyses of constitutional potential anticipatory establishment of independent judicial power, promoting the development of the institutions of parliamentarianism and constitutional monarchy. Author sees the main achievement of the Court reform in establishment of independent judicial power, free from administrative influence, defines its connection with supreme power of the Tsar’ and describe the main parameters of the judicial power in XIX сentury. Also author analyzed the problem of overcoming of legal dualism through activity of local courts (justice of the peace and volostnoy court).
Keywords: court reform, judicial power, the Judicial Statutes of 1864, legal consciousness, justice of the peace, volostnoy court, court of jury.
DOI: 10.12737/6579
Problem of Consolidation of Legal Status of Personality in the Russian Legal System
Z. S. Bayniyazova
PhD in law
National Research Saratov State University
83, Astrakhanskaya st., Saratov, 410012, Russia
E-mail: zulfiyas@yandex.ru
The article investigates the issue of consolidation of an individual legal status in the Russian legal system. The author claims that at the present moment an individual legal status is not represented as a consolidated institution of the legal system, and the situation does not meet the needs of the legal life of the Russian society. In this connection the author suggests that a notion of “consolidated individual legal status” should be singled out in the legal science. The characteristics of consolidated individual legal status have been singled out and analyzed in the article. The author also looks into significance of consolidation of individual rights and liabilities. The author emphasizes that the value of the consolidated condition of individual rights and liabilities determines significance of the issue of consolidation of an individual legal status. The author pays close attention to the legal policy; the author claims that legal policy alongside with the legal system must be a phenomenon that fully guarantees legal self-realization of an individual, an opportunity to exercise their rights and freedoms. The author stresses the necessity of an individual legal status as a consolidated legal phenomenon, which is one of the priorities of the Russian legal system.
Keywords: consolidated individual legal status, rights, liabilities, legal system, legal policy.
DOI: 10.12737/6581
Legal Regime of Personal Data
L. K. Tereshchenko, O. I. Tiunov
L. K. Tereshchenko, doctor of jurisprudence
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: adm1@izak.ru
O. I. Tiunov, 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: mp@izak.ru
The personal data is carried to a category of the confidential information, the interdiction for gathering, storage, use and distribution of the information on private life is established, and is equal to the information breaking personal secret, family secret, secret of correspondence, telephone negotiations, post, cable and other messages of the physical person without its consent, except as on the basis of the judgement. Article is devoted the analysis of bases of a legal regime of the personal data, problems of application of the legislation on the personal data, definition of tendencies in development of the legislation on the personal data, including the right of a response the subject of the personal data of the consent to their processing, to search of balance of interests of the subject of the personal data and societies. In article judiciary practice, including decisions of the European Court under Human Rights in the given sphere also is analyzed. Presence of different lines of thought in the decision of the affairs connected with granting of the personal data is shown.
Keywords: personal data, legal regime, private life, human rights, judiciary practice, the European Court under Human Rights.
DOI: 10.12737/6584
Concept of Beneficiary Owner (Proprietor) in Tax Law
I. A. Khavanova
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: ahavanov@mail.ru
The concept of beneficial ownership draws the increasing attention because it’s widely used by the international holding structures for tax planning. The author analyzes the concept of beneficial ownership in the tax law taking into account new Russian legislative initiatives and law-enforcement practice. The article touches upon the history of this concept, its content in the international tax law, peculiarities of the ratio of national and international tax law norms, questions of concept application and usage of the term “the person having the actual right to receive the income” in conventions for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income. The author concludes that inclusion of the term “the actual addressee (beneficial owner) income” in the Tax code of the Russian Federation for the purposes of the application of the Double tax agreements by itself will not provide for the effective application of the concept which is a result of expert development, carried out within the Organization for Economic Co-operation and Development (OECD) and also case-law of the leading states. The author concludes that there’s a necessity for the scientific researches taking into account the specificity of the Russian legal system, defining the directions of tax and legal researches.
Keywords: tax, beneficial owner, ultimate beneficial owner, double tax agreements, limitation on benefit.
DOI: 10.12737/6585
“The Islamic State”: from Terrorism to Genocide
S. M. Kochoi
doctor of jurisprudence
Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, 123995, Russia
E-mail: sam.kochoi@bk.ru
The first time in Russian legal science discusses the crimes committed by the terrorist organization “Islamic State / Islamic State of Iraq and the Levant” (IS/ISIL), against minority communities — Yazidis in Iraq. Based on the analysis of available information (reports of the UN and other international organizations, publications in Russian and foreign mass media) is substantiated conclusion about the presence of elements of the genocide in the acts of the members of the IS/ISIL. It is emphasized that the international community faced genocide, which was committed organization recognized as a terrorist. Invited to take coordinated by the international community measures to deprivation of members of the IS/ISIL freedom of movement between States and to prevent they commit terrorist acts on his return to the States, natives or citizens whom they represent.
Keywords: terrorism, genocide, Yazidis, “Islamic State” (IS/ISIL), crimes against of humanity.
DOI: 10.12737/6587
Criminal Liability for Restraint and Elimination of Competition
T. F. Churaev
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: ctqxfc@mail.ru
The problem of protection of the competitive relations is the most urgent, among economic crimes. Its importance is caused by low level of the competition in the economy that is confirmed by the international estimates, prevalence of violations and a galloping rise in prices. The similar situation damages to citizens and society as a whole. For a solution of the problem at first we defined public danger of acts of restriction of the competition, by means of the principles of criminalization: accounting of importance of the public relations, infliction of harm, prevalence and dynamics of negative acts, and also the principle of definition of possibility of collateral consequences from establishment of a criminal ban. Importance of the public relations in the sphere of the competition is defined by the leading role of economy, as one of the main living conditions of society. Social and economic negative consequences of restriction of the competition: pecuniary losses of society, also industrial and dynamic losses from functioning of monopolistically structures and also in violation of the economic rights of citizens. The principle prevalence and dynamics of the socially dangerous acts is confirmed by quantity of administrative offenses, and also a rise in prices. Possibility of a collateral consequence from establishment of a criminal ban, consists in threat of violation of activity and development of large business and, respectively, losses of their competitiveness in the world market. Further we made the analysis of article 178 of the Criminal Code of the Russian Federation and the reasons of its small efficiency: in the presence of the material consequences and recurrence in case of abuse of a dominant position (abuses more than two times within three years). We suggest to institute criminal proceedings in case repeated administrative offense limiting the competition without material consequences. Also, we suggest to institute criminal proceedings if there is a material consequences without of the sign of recurrence. Besides, it is necessary to establish the open list of acts of limiting the competition.
Keywords: public danger, principles of criminalization, competition restriction, pecuniary loss of society, industrial and dynamic loss, material consequences, criminal liability, sign of recurrence.
DOI: 10.12737/6588
Problems of Legal Regulation of Treatment of Animals
E. L. Minina
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: ecology8@izak.ru
In this paper a study of a number of legal issues that relate to the treatment of all existing species of animals. While Russian law more fully regulate matters relating to the protection of wild animals in a state of natural liberty, and the procedure for the use of such animals — mostly for hunting — there is still a huge number of animals used by humans, particularly in the as companions, for scientific, entertainment and leisure purposes, for food or other products — the treatment procedure that is defined very sparingly and fragmentary. Meanwhile, there are a number of issues common to both wild and domestic, agricultural, and other species. Of them are now settled only a matter of determining the rules and regulations in the field of veterinary medicine — and then mainly in relation to farm animals. A significant gap remains legal support humane treatment of animals. It is concluded that the need to address the protection of animals from cruel treatment in a special federal law. However, such a law should be devoted to the broader issue of responsible treatment of animals, and address both problems to treat them humanely, and to protect people from the dangers and inconveniences associated with the maintenance of the animals in populated areas and other places where they come into direct contact with people.
Keywords: animals, wild animals, pets, homeless animals, humane treatment, veterinary medicine, the federal legislation.
DOI: 10.12737/6589
Legal Liability for Land Offences
E. S. Boltanova
PhD in law, associate professor
Institute of Law of the National Research Tomsk State University
36, Prospekt Lenina, Tomsk, 634050, Russia
E-mail: bes2@sibmail.com
Though the term “infringement of the land law” is quite broadly used both in the practical legislation and in the theory of law, the definition of the term is quite disputable. The same is true regarding the types of responsibility that the infringement can generate. The article is aimed at defining the term and the notion of the infringement of the land law and at the substantiating of the various types of responsibility for the infringement. Acting norms of law of Russia, practical legal cases, scientific, academic and other publications constitute the empiric data for the research. The method of the research in its broader sense is based on the materialist dialectic, which makes it possible to consider the facts and processes in their interrelation and development. Besides, the methods of formal logics, of normative dogmatics, of analysis and synthesis and others were used during the research. The article proves that the type of responsibility, be it criminal, administrative, disciplinary, property liability, depends on the social impact and danger, on the functions of responsibility, and, to certain extent, on the practical thought. This is viewed from the position of interrelated and objectively connected legal norms maintaining law, which, in its turn, determines the sanction be separate from the hypothesis and from the disposition of legal norm. The law of Russia determines such a sanction as the forced termination of the right for the spot of land due to its misuse. The sanction is strictly personified and restrictive. The article stipulates grounds for the usage of the sanction as a measure of special responsibility in the sphere of land law. The responsibility is objectively conditioned by the specificity of land social relations and by infringements of the land law in particular. The research concluded that the infringement of the land law is an integral notion, characterized by the action deviating from those required by the law, and breaking the land laws. The land law is enforced by a system of measures of various types of responsibility, whereas the legislation regulating the responsibility has certain completeness and systemic integrity.
Keywords: land, responsibility for land offence, improper use, withdrawal of the land plot.
DOI: 10.12737/6590
The Treaty of the Eurasian Economic Union – New Page of Legal Development of Eurasian Integration
A. Ya. Kapustin
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: Kapustin@izak.ru
The article is considered the principal features of the Treaty on Eurasian Economic Union (EAEU) in the light of modern International law, its legal nature, place and functions in the regulation of Eurasian integration. Analysing the history of the formation of the idea of Eurasian integration after the collapse of the USSR, the value of the EurAsEC in the development of the integration process. Describes the main features of the EAEU Treaty as the foundation treaty of two kinds: establishing international organization for integration (EAEU) and the economic and legal space (the Customs Union and the Common economic space).
Keywords: the Eurasian Economic Union, EurAsEC, CIS, Customs Union, Common economic space, International organization of regional integration, the foundation Treaty, the International agreements concluded in the framework of the EAEU, International agreements of the EAEU with a third party, decisions and orders of the organs of the EAEU.
DOI: 10.12737/6623
Ensuring Human Rights within European and Inter-American Integration (Comparative Analysis)
S. A. Gracheva, E. E. Rafalyuk
S. A. Gracheva, 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: theory5@izak.ru
E. E. Rafalyuk, 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: theory5@izak.ru
Human rights and freedoms and the guarantees of their security acquired the significance of the core values of the legal process within the individual States and at the level of inter-state relationships. Integration processes and the creation of inter-state associations have had a significant impact on the development and effectiveness of systems to guarantee the rights and freedoms at the national, regional and global levels. Throughout the second half of the XX century, there is an active formation of systems of human rights protection in the various inter-state entities. The most ambitious of its distribution in space and effective in the context of the human right’s promotion are the European and Inter-American systems of human rights protection. The advantages of the regional human rights protection systems in comparison with the universal mechanisms to support them are: the availability of special territorial and legal space for human rights; the establishment of a list of standards for the protection of the rights and freedoms that are essential for the maintenance and sustainability of sociocultural, political and economic ties within the appropriate space; the functioning of the interconnected competent supranational structures and institutions to provide within a specific territorial and legal environment protection of the rights and freedoms of the individuals. The protection of human rights is becoming a factor of the unification of the national legal order through the establishment of human rights standards within the legal space, covering a significant number of countries with common cultural, historical, political and legal traditions.
Keywords: basic human rights and freedoms, inter-American integration, European integration, regional legal space to protect the human rights, the European Court of Human Rights, the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, the international specialized and complementary mechanisms of protection of human rights.
DOI: 10.12737/6625
