Contents of issue # 8/2014
Main Vectors and Problems of Development of Social Legislation
T. Y. Khabrieva
academician of the Russian Academy of Sciences, 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: office@izak.ru
The article on the guidelines for the development of social legislation of the Russian Federation predicts a rapid and accelerated development of this block of Russian law system.Among the largescale trends typical for social legislation the author includes: expanding of the scope of regulation (juridification) and the corresponding expansion of legal regulations, differentiation of social legislation on the new brunches (in particular, immigration legislation), the formation of new sub-brunches within the existing ones (for instance, labor relations in the public service) and institutions (biotechnology and so on). The article discusses some “growth problems” of social legislation: the tendency of commercialization of the sphere leads to a decrease of the quality of services, the weakening of safeguards for the most vulnerable categories of citizens (for example, cancellation of the rules on prior consent of the guardianship authorities to carry out transactions with premises where childrenlive, led to a decline of living conditions of many minors of the Russian Federation). As a result the very content of constitutional rights is expressly questioned. At the same time it is underlined that the positive aspect of social legislation juridificationis the appearance of new obligations of the state in the social sphere. To overcome the existing problems and to prevent new onesit is proposed to strengthen the role of science in determining the broad guidelines of development of social legislation in the systematization of social legislation, unification of regional legislation in the social sphere, preventing the rejection of statutory approach in the formation of the secondary legislation, reduction of by-law regulation, strengthening the greater coherence of other branches of Russian legislation with the norms of social legislation. Optimization of legislative regulation through the adoption of the Federal Law “On Normative Legal Acts” will contribute to the elimination of many defects of social legislation and greater stability of legislation of the Russian Federation in the whole.
Keywords: social development, juridification, social legislation, public services, public relations, obligations, systematization of legislation, migration law, inter-branch legal complexes.
DOI: 10.12737/5271
Contractual Aspect of Division of Jurisdictions in the Russian Federation: History and Present
A. N. Chertkov, O. V. Kistrinova
A. N. Chertkov, 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: const@izak.ru
O. V. Kistrinova, PhD in law
The Central Affiliate of the Russian Academy of Justice
95, 20-letiya Oktyabrya st., Voronezh, 394006, Russia
E-mail: kistrinova@mail.ru
The article examines the meaning and role in the formation of Russian statehood contractual aspects of the delimitation of powers between the Russian Federation and its subjects. Analyzes the historical and political importance of the Federal treaty and agreements on the delimitation of powers between Federal bodies of state power and bodies of state power of the subjects of the Russian Federation, their role in the system of Russian law. The authors come to the conclusion that a twentyyear experience of the delimitation of competence led to the domination of the legislative differentiation of powers, and further perspectives of the contractual process. The article also treaties and agreements became an auxiliary mechanism designed to clarify certain issues of delimitation of competencies from a regional perspective. Their conclusion is justified only in exceptional cases, if it is conditioned by legally significant characteristics of the Russian Federation.
Keywords: federalism, the Federal treaty, subject of the Russian Federation, the state and integrity, contractual process.
DOI: 10.12737/5272
The Federal Law “On Procurement of Goods, Works and Services by Particular Types of Legal Persons”: Scope of Application in Contractual Relations
O. A. Belyaeva
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: O_beliaeva2011@mail.ru
The author offers discussion on a problem of a ratio of the concept «Рrocurement» with different types of civil contracts; in article the rent and leasing relations, contracts on charity, «frame» contracts are consistently shined. The author reasons arguments that the called contracts don’t fall within the scope of regulation of the Federal law of 18 July 2011 No. 223-FZ. The author speaks inexpediency of application of frame contracts in the Russian contractual practice. The article subject opens scientific discussion about a ratio of the civil legislation and the procurement legislation.
Keywords: рrocurement, single-source procurement, customer, procurement rule, rent, leasing, loan, charity, frame contract.
DOI: 10.12737/5273
Social Concept of Law: A New Approach
Yu. A. Tikhomirov, S. B. Nanba, F. V. Tsomartova
Yu. A. Tikhomirov, 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: office2@izak.ru
S. B. Nanba
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: snanba83@gmail.com
F. V. Tsomartova
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: social@izak.ru
Social conception of right is presented in the article. The aims of conception it is been forming of behavioral mechanism of law, and also combination of private and public interests. On the basis of social conception of right the models of her realization are offered: “conservative”, “pessimistic”, “optimistic”. Elements are offered models that are the form of expression of substantive provisions to conception. Elements it is been: aim, social interest, measure of legitimity, methods of the socially-legal affecting behavior, self-regulation, legal consciousness and legal culture et al. Methodologies of measuring of social efficiency of the legal adjusting are also offered in the article. Authors consider actual next methodologies: level of legal knowledge, legal being informed, legal culture, relation of citizens to the right; satisfaction providing of social services; estimation of quality and availability of public organs; estimation of character and volume labour.
Keywords: behavioral mechanism of law, sense of justice, legal culture, self-regulation, conflicts, legitimacy, privacy, socialization.
DOI: 10.12737/5274
Legal Tender as a Category of Financial Law
I. I. Kucherov
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: fin@izak.ru
In the real work the nature of lawful means of payment from a position of science of a financial law is considered. The origin, formation and development of institute of lawful means of payment is investigated. Intrinsic legal signs of lawful means of payment are revealed. The author of article comes to a conclusion that it is possible to understand as lawful means of payment emitted in a certain monetary unit and officially introduced into circulation on behalf of the state the instrument of payment accepted at nominal cost within the respective territory, and used as it should be, the defined legislation on monetary circulation, for execution of monetary duties and the termination of liabilities.
Keywords: money, money issue, lawful means of payment, monetary unit, currency sovereignty.
DOI: 10.12737/5275
Legal Relations in the Field of Employment and Labor Relations
E. E. Orlova
PhD in law
The Institute of Law of the Tambov State Technical University
106, Sovetskaya st., Tambov, 392000, Russia
E-mail: elenaorlowa@yandex.ru
The purpose of this article is to describe the legal relations in the field of employment and labor law relations. It is of immediate interest, because it is one of the important legal relations issues in jurisprudence. The article deals with the legal relations in the field of employment, which is of great scientific and practical importance, as it is implemented in legal relations subjective rights and duties of citizens in the field of employment. The analysis of the different viewpoints of scientists who studied the legal relations in the field of employment provides an opportunity to research the legal relations issues in the field of employment. The analysis of relations in the field of employment as “derivative from labor”, “related to labor”, “closely related to labor”, “indissolubly related to labor”, “adjoining to labor”, “elective satellites of labor” allows to research co-relation issues of the legal relations in the field of employment and labor law relation. The author defines a special group of the legal relations in the field of employment with certain characteristics and features. As a result of research all legal relations types of employment are presented and the classification of legal relations types by subject matter is carried out.
Keywords: employment, the employment service, relationship, unemployed, employer.
DOI: 10.12737/5276
Judiciary Practice in the Mechanism of Legal Monitoring
A. V. Pavlushkin, M. E. Glazkova, E. V. Cherepanova
A. V. Pavlushkin, 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: pavlexnet@mail.ru
M. E. Glazkova, 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
E. V. Cherepanova, 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: antikor@izak.ru
In article discusses topical issues of implementation of the legal monitoring mechanism. The authors made an attempt to discover the essence of the legal monitoring mechanism, to analyze and to assess the sufficiency of those functions, that are reserved for judicial authorities in this mechanism, and also to pay attention to specificity of monitoring of procedural rules as a type of law enforcement monitoring. Reveals the theoretical basis of the legal and regulatory monitoring? The organization the legal monitoring software. The authors proposes creation of a complex program of legal monitoring and law-application as an instrument of improvement of quality of normative-law acts. In article ways of influence of judicial practice on lawmaking and practice are generalized and systematized. Specific proposals are formulated. It ensures the scientifically-reasonable approach to a choice of directions of legislative development and in the end — an internal coordination of the legal system as a whole.
Keywords: legal monitoring, mechanism of legal monitoring, judicial practice, monitoring of procedural rules.
DOI: 10.12737/5277
Limitations of Powers of Court of Cassation for Application of Part 6 Article 15 of the Criminal Code of the Russian Federation
A. N. Kravtsova
PhD in law
Kalmyk State University
11, Pushkin st., Elista, 358000, Russia
E-mail: korneeva-nas@mail.ru
The article investigates the limits of power of the court of cassation instance on the application of Part 6 of Article 15 of the Criminal Code of the Russian Federation in the revision become enforceable judgments. Based on the analysis of criminal and criminal procedure norms the author comes to the following conclusions: Part 6 of Article 15 of the Criminal Code of the Russian Federation should be brought into conformity with paragraph 1 of Article 299 of Code of Criminal Procedure of the Russian Federation by a more precise definition of of procedural position of the person to may be applied this rule and streamlining sequence of actions court, in certain cases, the court of cassation may modify the judgment and apply the provisions of Part 6 of Article 15 of the Criminal Code of the Russian Federation.
Keywords: grade of offense, retroactivity of criminal law, court of cassation instance, credentials.
DOI: 10.12737/5278
Formations of Legal Development of Eurasian Integration and their Impact on the Legal System of the Russian Federation
A. A. Kashirkina, A. N. Morozov
A. A. Kashirkina, 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: ccla1@izak.ru
A. N. Morozov, 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: ccla1@izak.ru
The article reveals the scientific approaches to the concept and cycles of Eurasian integration. Identified formations in the development of the Eurasian integration at post-soviet space. The authors use the dialectic, formal logical, comparative legal, historical and other research methods. Analyzes the international legal base of the Customs Union, the Commonwealth of Independent States and other international acts. The conclusions about the possible expansion of the membership of the Eurasian Economic Union. Proves the effectiveness and positive aspects of the transition from the Eurasian Economic Union to Union with broader competence. At the same time problems of a legal nature, which impairs the development of Eurasian integration. The effect of different international acts integration associations in the post-soviet space on the legal system of the Russian Federation. The authors conclusions and proposals on improving the international legal base of the Eurasian Economic Union, as well as recommendations for improvement of the Russian legislation.
Keywords: Eurasian integration, Customs Union, Eurasian Economic Union, legal space, international treaty.
DOI: 10.12737/5279
Implementation of Legislative Prerogatives of the Russian Federation on the Basis of the Principle of Subsidiarity: Legal Assessment of the Experience of the European Union
O. I. Pimenova
PhD in law
The Council of the Federation of the Federal Assembly of the Russian Federation
26, Bolshaya Dmitrovka st., Moscow, 103426, Russia
E-mail: oxana_krasnova@mail.ru
The execution and protection of Russian regions’ prerogative legislative powers is the most significant element of their jurisdictional independence, and legal regulation of this area is crucial for ongoing federative reforms. The purpose of this article is to clarify possibilities of adaptation of the European Union’s experience in implementation of the subsidiarity principle to the Russian Federation’s system of regulation and execution of federal legislative powers in the area of joint jurisdiction which is considered to be the main institute of the vertically integrated government system in a federal state.
Keywords: law, joint jurisdiction, competence, federation, region, cooperation, subsidiarity, the European Union.
DOI: 10.12737/5280
Impact of Tradition on Law of Modern China
P. V. Troshchinskiy
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: troshc@mail.ru
The article discusses some features of the modern legal system in China , formed under the direct influence of Chinese traditional concepts about the role of the Right and the Law in the society. The attention is focused on moral teachings of Confucius and the views of legalists, that had had a decisive influence on legal culture and legal consciousness of a Chinese citizen. Explores the attitude of Chinee to liability and punishment, the death penalty, specificity of the legal regulation of social relations in the Chinese state. Provides examples from the law enforcement practices and legislative activity, confirming the close relationship between the modern and the traditional law in China. The special place in researching is occupied by issues of crackdown legal liability against violators of legal regulations. Analyzes the most resonance criminal cases in relation of those people, who sentenced to death, have committed crimes in the field of illicit drug trafficking , driving while intoxicated, resulted the death of two or more persons, verdicts to the supreme penalty of persons involved in the addition of melanin in infant formulas. The influence of tradition, customs and moral principles on modern legislative activities of Chinese legislator is confirmed by other examples through the prism of the modern and the traditional law in China. The author calls for to pay more attention to tradition while analyzing the current legislation of China. The modern law of China is closely connected with traditional Chinese concepts about place and role of the Law in society.
Keywords: comparative jurisprudence, legal system, “the cultural revolution”, “the policy of reform and opening”, Chinese law, experimental law, capital punishment, legal liability.
DOI: 10.12737/5281
“Judicial Proceeding with Judge” in Criminal Procedure: History and Present
I. S. Dikarev
PhD in law, associate professor
The Institute of Law of the Volgograd State University
100, Prospekt Universitetskiy, Volgograd, 400062, Russia
E-mail: dikarew@mail.ru
In the legal literature suggestions have been made to grant the judges of the authorities to participate in a court dispute as a party in an appeal against their decisions. A well known case when the judge addressed to the Constitutional Court of the Russian Federation with a request to verify the constitutionality of provisions of the law, according to which the court that issued the decision on the criminal case, is not related to the number of entities eligible to appeal to the supervisory procedure decisions of higher courts. In this article the author makes an attempt to trace the historical roots of such proposals and substantiates the conclusion that they do not correspond with the principles of modern criminal process. However, the rudiments “of the court with the judge” is found in the procedure of renewal of criminal cases because of new or newly revealed circumstances in connection with criminal actions of the judge committed him during the consideration of the criminal case.
Keywords: criminal process, court, appeal, cassation, supervision, adversary nature of the trial, duel.
DOI: 10.12737/5282
Complicity in Commission of Administrative Offence
N. A. Morozova
PhD in law
Siberian Federal University
79, Prospekt Svobodniy, Krasnoyarsk, 660041, Russia
E-mail: nastaly@narod.ru
The question of possible complicity of the offenders committing administrative violations is controversial. In the Code of Administrative Offences of The Russian Federation has no notion of complicity, at the same time an administrative offences can be committed by several persons, that is confirmed by the analysis of article 14.32 of the Code. In this article the author proposes to introduce institution of complicity by means of joint participation into Code of Administrative Offences of The Russian Federation using experience of the theory of criminal law. The article considers the possibility of complicity between two individuals, two artificial bodies or artificial body and an individual entrepreneur; and also between the artificial body and its employee — under certain conditions. The punishment for each of the participants shall be determined in accordance with its part in commission of the offence. The offence of complicity should be an circumstance aggravating responsibility.
Keywords: administrative responsibility, administrative offence, accompliceship (complicity, involvement), group of persons.
DOI: 10.12737/5283
International Law Standards and Regulation of Safety of Food in the WTO Law
N. A. Chuyko
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: emailcna@mail.ru
International legal standards along with norms and principles of international law recently take hold and gain more acceptance by the states. Strengthening of their role in the international law system is connected to the globalization processes of legal framework at the international level and the internationalization of rules at the national level. Orientation on the international standards in the sphere of food safety becomes more relevant in the light of Russia’s accession to the World Trade Organization due to the fact that regulation of multilateral food trade is not limited only to the set of WTO agreements but contains references to other international legal documents including the Codex Alimentarius Commission’s (CAC) standards. In spite of the fact that the CAC standards primarily serve as guidelines they acquire a special status within the WTO Agreement on the Application of Sanitary and Phytosanitary Measures. Russian Federation has a right to to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health, however the existing presumption of legitimacy of measures based on the CAC standards establishes a certain framework for their application.
Keywords: international legal standards, food safety, food security, generally recognized principles and norms of international law, the Agreement on the Application of Sanitary and Phytosanitary Measures, sanitary and phytosanitary standards, technical standards, the Codex Alimentarius Commission.
DOI: 10.12737/5284
