Contents of issue # 6/2014

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

A number of questions, demanding their settlement during reform of local government, are put in the article. This refers to improvement of relationship between self-governing authorities and state authorities, explanation of the constitutional norms governing these relations. Author analyzes changes of the federal legislation on local self-government according to which organizational insulation of selfgoverning authorities and state authorities is defined in a new way. The measures aimed at providing a functional purpose of local government are offered in the article. Need of restriction of the state powers delegated to local governments, the sense of matters of local significance decided by local self-governments, arguments for specification of the list of matters of local significance are given. Need of joint actions of self-governing authorities and state authorities to solve social and economic problems under condition of strict demarcation of their powers is also proved.

Keywords: reform of local self-government, relationship of local self-government authorities and state authorities, the Constitution of the Russian Federation, federal law, functional purpose of municipalities.

DOI: 10.12737/4447

  Full text in Russian

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

In the article is considered the concept of lobbyism, its value for the modern legislative process, is analyzed the positive and negative aspect of this phenomenon. The particular attention is paid to the analysis of the forms and methods of lobbying based on the coordination of interests in the formation of legislation and implementation of legislative policy.

Keywords: lobbyism, lobbying process, legislation, interest, bill.

DOI: 10.12737/4448

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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: crim@izak.ru

On the question improvement criminal legislation of the Russian Federation about responsibility for criminal offences in economic activity considers problems reformation criminal act about responsibility for economic crimes. Acts analyzed legal criminal norms with purpose increasing effectiveness. The improvement criminal act denotes a special attention.

Keywords: criminal legislation of the Russian Federation, criminal offences in economic activity, criminal policy of the Russian Federation.

DOI: 10.12737/4449

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doctor of jurisprudence, associate professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: pna127@mail.ru

In the present article the author makes an attempt of research of problems of ensuring financial stability of the Russian Federation from a position of legal means. In article the concept, types, elements of financial stability is analyzed, the concept «legal means», their signs is investigated. The author of article comes to a conclusion that it is necessary to understand set of regulations, institutes, legal regimes, legal principles, receptions, means and ways in which the financial and legal designs necessary for ensuring ability to resist to influence of internal and external factors, for orientation on positive dynamics of stable development of the state, efficiency and productivity of use of financial resources of the Russian state are formulated and fixed as legal means of ensuring of financial stability of the Russian Federation.

Keywords: legal means, financial stability, efficiency, principles, legal regimes, budgetary system, balance, solvency.

DOI: 10.12737/4450

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doctor of jurisprudence, professor

The Institute of Law of Togliatti State University

14, Belorusskaya st., Togliatti, 445051, Russia

E-mail: Dmitri8@yandex.ru

The article is devoted to the phenomenon of positive legal responsibility, which is actively studied in Russian legal science, since the 1960 of XX century. The author analyzes various concepts of positive legal responsibility: a sense of legal duty; the discharge of duty; a duty to give account, good behavior and others. Advocated for-sure about the actual legal nature of the positive responsibility and the lack thereof its identity with a legal obligation, lawful behavior, promotion and other legal phenomena. The arguments about criticism against the concept of positive legal responsibility. It is proved that a voluntary form of realization of the legal liability of a legal obligation of compliance with legal norms implemented in lawful behaviour of the subjects of legal responsibility, endorsed or encouraged by the state.

Keywords: legal responsibility, positive legal responsibility, promotion, good behavior, legal obligation, the forms of realization of the legal responsibility.

DOI: 10.12737/4451

  Full text in Russian

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: adm1@izak.ru

The authorization system is one of the most important administrative institutes of the Russian law and order. In article the concept, appointment and the basis of introduction of an authorization system is investigated; concept “administrative permission”, its forms; classification and categorization of permissions is carried out; the fundamental principles of an authorization system and timely tendencies of its development come to light. Permission represents the individual administrative act adopted by authorized government body, carrying out functions in the allowing sphere within the provided competence, addressed to particular natural or legal entities — subjects of allowing legal relationship, and attracting their emergence, change or the termination. Permission can be accepted only during performance of the established allowing procedures with observance of a special form and according to law requirements. For the solution of problems of ordering of an authorization system and improvement of law-enforcement practice author’s classification of permissions by functional criterion and their categorization by degree of danger of adjustable activity is offered. As a result of such classification the exhaustive list of permissions by types and categories can be created.

Keywords: authorization system, administrative permission, legal forms of permissions.

DOI: 10.12737/4452

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PhD in law

Novorossiysk Branch of the Kuban State University

36, Kommunisticheskaya st., Novorossiysk, 353900, Russia

E-mail: kirakosyan@estok.net

According to judicial practice in the past decade the disputes about invalidation of decisions taken at owners’ meetings have achieved mass proportions. Absence of the courts uniform approach in such disputes was caused by outstanding issues about criteria of meetings decisions invalidity, legal effects of decisions invalidation. A new chapter 91 of the Civil Code of the Russian Federation came into effect on the 1st of September which established the uniform order for challenging of meetings decisions. The article distinguishes conditions of owners’ meetings decisions validity, explores grounds for holding the meetings decisions contested or void, rules for improvement of a contested decision, determines evidence of “antisocial” decision.

Keywords: decision of the meeting, paltry decision, debatable decision, meeting of owners, “antisocial” decision.

DOI: 10.12737/4453

  Full text in Russian

PhD in law

Lomonosov Moscow State University

1, Leninskie Gory, GSP-1, Moscow, 119991, Russia

E-mail: vikhim@mail.ru

The article deals with the development of copyright law in various periods of the Russian history. The copyright duration has varied in Russia and the USSR during the last decades — from 15 years to 25, 50 and 70. This has caused serious problems in application of copyright terms to particular works. The respective amendments extending the terms of copyright provided for different application of new terms to “old” works (i.e. the works created before the amendments were introduced) which has complicated the situation. According to the amendments the copyright duration could be “extended” or it could be “restored”. These controversial provisions left the works of some soviet writers, e.g. A. Tolstoy, A. Beliaev, unprotected a few times. The article focuses on the examination of copyright laws and court decisions including the opinions of the Russian highest courts.

Keywords: copyright, terms of copyright, new terms, “old” works.

DOI: 10.12737/4454

  Full text in Russian

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: crim@izak.ru

The article deals with the current problem of the right of a subject of the Russian Federation to set up the courts, which forms the system of the courts of the subject of the Russian Federation: constitutional (statutory) courts and magistrate courts. The article also analyses the reasons for difficulties in setting up and operation of the constitution (statutory) courts. The pitfalls of legal governance of the work of the magistrate courts are also specified.

Keywords: subject of the Russian Federation, courts of the subject of the Russian Federation, constitutional (statutory) court, magistrate court, court district, court system.

DOI: 10.12737/4455

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PhD in law, associate professor

Orenburg Institute (Branch) Moscow State University of Law by the name O. E. Kutafin (MSLA)

50, Komsomolskaya st., Orenburg, 460000, Russia

E-mail: dvugproc@yandex.ru

The article deals with the problems of interpretation of the rules on admissibility of evidence in criminal proceedings, ways of substitution of one type of evidence by another, examples of the use of inadmissible evidence in the activities of the investigative and judicial authorities. The author analyzes the court practice concerning the issue of admissibility of evidence and explains the position of the Constitutional Court of the Russian Federation concerning the possibility of questioning of investigators and inquiry officers as witnesses at the court hearing. The author is against the use as evidence not provided for in the Code of Criminal Procedure of the Russian Federation. The author supports the idea that there should be a regulation of the Code of Criminal Procedure of the Russian Federation that particular kinds of evidence have to be from proper sources. In the end, the author comes to the conclusion about the necessity of using teleological interpretation of the criminal procedure rules on the admissibility of evidence, based on the intentions of the legislator.

Keywords: criminal legal procedure, admissibility of evidence, substitution of evidence, teleological interpretation.

DOI: 10.12737/4456

  Full text in Russian

N. I. Marysheva, 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: pil@izak.ru

O. V. Muratova

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: pil@izak.ru

The article covers the questions of comparative analysis of the proposal for the regulation of European Union “On Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions in Matters of Matrimonial Property Regimes” and Russian family and civil legislation. The disputable issues of Russian legislation in defined sphere are also explored in the article.

Keywords: marriage contract, matrimonial property regime, private international law, European Union, Russian legislation.

DOI: 10.12737/4457

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PhD in law

The Russian Academy of Justice

69, Novocheremushkinskaya st., Moscow, 117418, Russia

E-mail: georgiyrus@yandex.ru

The author considers the grounds for exemption from international criminal responsibility provided for in accordance with the Statute of the International Criminal Court. The author examines the process of the formation of the institution, as well as the features of the application pursuant to an exemption from international criminal responsibility. In article focuses on five grounds: mental illness perpetrator; base defense; intoxication; mistake of fact or event; superior orders or prescription of law.

Keywords: international criminal justice, responsibility, liberation, self-defense, the execution of the order, intoxication, mistake of law, mistake of fact.

DOI: 10.12737/4458

  Full text in Russian

PhD in law, associate professor

Wuhan University China Institute of Boundary and Ocean Studies, Center for Collaborative Innovation on Territorial Sovereignty and Maritime Rights

299, Bayi Road, Wuchang, Wuhan, 430072, People’s Republic of China

E-mail: kuangzj@mail.ru

Legal regime of the territorial sea is analyzed from the perspectives of both of international and domestic law. The article is considering the development of the legislation regulating the Legal regime of the territorial sea in China. Author used abstract-logical, comparative-legal, formal-legal and historical methods. The article highlights the stages in the development of legislation, their peculiarities, as well as the main tasks at these stages. The main attention is paid to the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone (1992), the conditions in which it was enacted, and its subsequent adjustments. The author examines legislation and practice of the People’s Republic of China on the following problems of the territorial sea: limits of the territorial sea, the innocent passage of foreign ships through the territorial sea, marine scientific research, protection of the marine environment in the territorial sea. The general conclusion is that the Legislation China practically comply with the 1982 UN Convention on the Law of the Sea and operates on the basis of its implementation into national legislation. Chinese law and practice as a whole is also consistent with existing customary norms of international law and take into account the prevailing trends seen in the legislative practice of a significant number of coastal states.

Keywords: territorial sea, the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, straight baselines, right of innocent passage, marine scientific research, protection of the marine environment, delimitation of the territorial sea.

DOI: 10.12737/4459

  Full text in Russian

PhD in politics, associate professor

Vladivostok Branch of Russian Customs Academy

16, Strelkovaya st., Vladivostok, 690034, Russia

E-mail: valyabalk@yandex.ru

The article is devoted to the history of fight against corruption in Russian Empire in XVIII. The author analyzes the materials of investigations of official malfeasances committed by St Petersburg port customs employees. These investigations were carried out by the Governing Senate’s committee of inquiry in the 1740s and resulted in disclosing an organized criminal group of 10 middle and low ranking customs officials and 19 foreign merchants. Besides, 24 foreign merchants occasionally asked the corrupt officials for services. That criminal activity in 1735—1742 caused material damage to the country amounting to 5 or 7% of due customs taxes and duties. The investigation revealed one of the most outstanding corruption cases in the XVIII century. The author discloses the reasons for abuses and conditions that led to the creation of the corruption scheme. Special attention is paid to the characteristics of methods and progress of the investigation and its results. Historical lessons for further development of customs clearance procedures in sea trade of Russia have been outlined. The research work is based on the materials of Russian State Archive of Ancient Acts (Moscow).

Keywords: port customs, customs service, Russian Empire, Governing Senate, corruption, official investigation.

DOI: 10.12737/4460

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The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: AlekseyVladimir@yandex.ru

This article covers such important problem of civil law as nature of good faith in the civil regulation. It dwells upon the new legal conception of the Civil Code of the Russian Federation as well as practical matters in this context. The author does not share the opinion of some legal scholars that good faith should be regarded as a principle and (or) rule of civil law. The author believes that good faith is not a legal notion, and should be considered as one of the implicit attributes of the social relations regulated by civil law. It discusses the legal basis to take measures for using this model in the system of civil
legislation.

Keywords: good faith, presumption of good faith, principle of good faith, civil law, rule of civil law, ground of legal rule, jural fact.

DOI: 10.12737/4461

  Full text in Russian