Contents of issue # 11/2015

doctor of legal sciences, professor

The Constitutional Court of the Russian Federation

1, Senatskaya ploshchad, St. Petersburg, Russia, 190000
E-mail: ksrf@ksrf.ru

The author justifies multifacetedness of the ‘constitutionalism’ category, which, in the author’s opinion, has its own legal content, as well as a non-legal one — economic, social, political and cultural. Besides, constitutionalism reflects universal values of modern civilization, that manifest themselves in regular patterns of democratic organization of the society and state on the basis of power, ownership and freedom, recognition and protection of rights and freedoms of man and citizen, supremacy of the law. On a structural level constitutionalism represents a special philosophiclegal theory, a system of political and legal ideas and concepts. At the same time this category embodies a system of legal positivism in unity with natural and legal sources. Constitutional and legal practice, including legislative, administrative and court practice, forms an essential component of constitutionalism. Constitutionalism is a form of social consciousness and serves as a pre-requisite for a new type of a legal form of reality. This vision is characterized as a constitutional ideology. The author argues in favor of politicization of constitutionalism. The author draws the conclusion that constitutionalism is an axiological, teleological and praxeological value that forms part of a global cultural legacy of mankind. The author also views constitutionalism as objectively emerging order of actual social relations. Stability and lack of contradictions between governance, property and freedom is the basis of constitutional rule of law. Genuine constitutionalism is also a moral and ethic phenomenon. Constitutional and judicial regulatory compliance verification serves as a guarantee of constitutionalism.

Keywords: сonstitution, constitutionalism, constitutional values, constitutional order, constitutional policy, constitutional justice, constitutional regulatory compliance verification.

DOI: 10.12737/14365

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doctor of legal sciences

The Nizhny Novgorod branch of the National Research University “Higher School of Economics”
25/12, Bolshaya Pecherskaya st., Nizhny Novgorod, Russia, 603155
E-mail: irinarap@mail.ru

The article is devoted to the rule of law in rulemaking activity of the Russian Empire ministries in XIX — early XX century. The author reviews the complex of control methods in rulemaking activity of the ministries in the Russian Empire. The author presents content and structure of control and supervision mechanism in the law-making activity of the Russian Empire ministries. The author defines difference of approaches to the perception of control and supervision as a means of law enforcement in the Russian Empire and modern Russia. The author draws the conclusion about similarity of the ways for providing the rule of law in rulemaking activity at different historical stages in the Russian Empire.

Keywords: rulemaking activity of the ministries, the Russian Empire, the legality of subordinate acts, control and supervision.

DOI: 10.12737/14366

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

34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: paygina@mail.ru

The article analyzes discussion questions about the concept of a political regime and its relationship to related categories: “form of government”, “public regime” and others. Clarity in understanding will contribute to the correctness of classification of these categories, considered in theory. The article presents ideas that have influenced the understanding of political regimes. Particular attention is paid to works of ancient authors, who are still on top of their relevancy due to their flexibility, despite the fact that they were formulated many years ago. The author proposes to define a political regime as a degree of political freedom of the citizens, expressed in the established system of rights that citizens may use when exercising their freedom, as the framework within which it should be exercised, and as the degree of effectiveness of the government. The author substantiates the connection between the political regime and legislative dynamics, which serves as an illustration of the current situation as a result of the decision-making by government authorities.

Keywords: political regime, public regime, political regime in Russia, political system, form of government, form of state structure, form of rule.

DOI: 10.12737/14367

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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, Russia, 117218
E-mail: nikee@mail.ru

The article is devoted to the issues related to lawful limitations of constitutional rights in the Russian Federation. The limitation of human rights is a complex and multi-layered phenomenon. The author uses both formal and other criteria. In addition, there is a territorial aspect to this problem in Russia. The author analyzes the powers of subjects of the Russian Federation to regulate legal relations in the sphere of constitutional human rights, and considers the possibility of their lawful limitation by the legislations of subjects of the Russian Federation. In addition, the author examines reasons and consequences of unlawful restriction of human rights by laws of the subjects of the Russian Federation. Terminological problems are discussed. In particular, the author distinguishes between such terms as “limits of legal regulation” and “limitation of human rights”, “human rights” and “rights of participants”. The author formulates theoretical arguments about the possibility of partial legal regulation of constitutional human rights.

Keywords: constitutional human rights, limitation of rights, limits of legal regulation, legislation of the subject of the Russian Federation, regulation of human rights.

DOI: 10.12737/14368

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The Committee on local government, inteethnical and interfaith relations of the Leningrad region
67, Suvorovskiy prospekt, St. Petersburg, Russia, 191311
E-mail: makarov426@gmail.com

The article considers the most significant arguments of criticism of the model of joint administration of a municipal district and a settlement, related to financial and organizational and legal aspects of the activity of the joint executive-administrative body of municipal formations of two levels. The author analyses the positions of specialists in municipal law, who provide both highly negative comments and more moderate assessments. The author evaluates the relevance of delegating the exercise of the settlement administration’s authority to the municipal district administration, taking into account the presence in the local community of public interests of various types. The author considers individual aspects of intergovernmental fiscal relations that arise after introducing the model of a joint administration of a district and a settlement, the issues of cooperation between the representative bodies of the two municipal formations with a “joint” administration, participation of deputies, representing the settlement, in the district administration activity. The author considers the mechanism that stimulates staff increase in case of existing in the administrative center of a municipal district of two independent executive-administrative bodies.

Keywords: administrative center, municipal district, urban settlement, local government, powers, joint administration.

DOI: 10.12737/14369

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doctor of legal sciences, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: Kapustin@izak.ru

The article discusses the main features of the Law of the Eurasian Economic Union (EAEU) from the point of view of modern international law, its legal nature and place, and functions in the regulation of the Eurasian integration. The article investigates the importance of the Foundation agreement as the international legal basis of the Union and its legal system. The author conducts comparative law analysis of conceptual models of the integration law on the example of the European legal theories of the European Union and Latin American theories of law on regional economic integration. This article gives comprehensive international law characteristics of regulatory definitions and conceptual framework of the EAEU law. The author classifies contractual sources of the Union’s Law and reveals the relationship between them. The author shows the role of secondary sources of the Union’s Law — acts of intergovernmental bodies. The author does not only list the sources enumerated in the EAEU Treaty, but also makes a forecast about the role of other international law acts and norms in the development of the EAEU Law concept. The author draws the conclusion that the Union’s Law is of an international law nature.

Keywords: the Eurasian Economic Union, International organization of regional integration, theories and schools of the European community law, the concept of the Law for Latin American regional economic integration, the Founding Treaty, International agreements within the Union, international treaties of the Union with third parties, decisions and orders of bodies of the Eurasian Economic Union, the acts of the EAEU Court.

DOI: 12737/14371

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N. G. Doronina, doctor of legal sciences, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office2@izak.ru

N. G. Semilyutina, doctor of legal sciences

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign3@izak.ru

Since 2013, at the State Duma initiative, each April Saint-Petersburg has hosted the “Eurasian Economic Perspective” International Forum. This discussion venue for the exchange of opinions by parliament members of the post-Soviet states, with the participation of scientists, representing humanitarian sciences and education, furthers, among other things, the goal of the states’ integration and their economic development. The topic for discussion offered this year was the implementation problems of the Treaty on the Eurasian Economic Integration as of January, 1, 2015. One of the main integration problems is the problem of unification and harmonization of national legislations of the Treaty countries. The key question of the unification process is separation of powers and competences of the integration organization’s common body and the participating countries’ national bodies. The understanding of the supranational power of the common body is not correct. The integration experience in other unions between the states proves the importance of the sovereignty principle in the integration process. The author provides the analysis of former integration experience. For example, CMEA (Council of Mutual Economic Assistance) united the former Eastern European socialist republics and South-Eastern Asia and was dissolved in 90-ies after the transition of the States — participants to market economy. Notwithstanding its dissolution, CMEA created effective integration instruments on the basis of unification of national legislations: The CMEA General Conditions of Delivery. This instrument of the socialist common market continues to be practiced as model conditions for international contracts. The legal instrument of the International Business Corporation (IBC) has initiated the movement of resources that can be compared to the movement of capital in a free-market world. The CMEA experience has provided basic knowledge of cooperation, which was later used in other integration groups. The article also covers the economic integration of the European Union. It can be useful from the point of view of critics of “federalist” theories on the nature of integration of a group of states. The latter remains, as the authors show, to be subject to the International Law system. It is quite logical, that due to this position of the authors, they pay special attention to the key role of national legislation in the integration process. On the basis of the analysis of the Andean Common Market experience the authors underline the features of integration in the Latin American region. The comparative analysis of international regional unions of states is necessary to make the work of the Eurasian International Economic Union (EAEU) more effective. The Information Law is the technique that provides the diffusion of the most effective models of regulation for the purpose of economic integration. This approach in solving problems of economic integration in EAEU seems to be useful in search of the ways to overcome difficulties of the integration process.

Keywords: information technologies, data exchange agreements, coordination of economic policy, EAEU, EU, ANCOM, CMEA (Council of Mutual Assistance), unification and harmonization of legislation, economic integration.

DOI: 10.12737/14372

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PhD in law, associate professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
Е-mail: foreign1@izak.ru

The number of European countries which have included into their national legislation the provision on criminal liability for legal persons (corporations) has been continuously growing. The following countries remain essential supporters of preserving criminal liability for individual guilt: Germany, Russia, Italy, and, may be, Poland, where after the adoption of the Law on Liability of Collective Entities for punishable offences, the Constitutional Tribunal in 1994 adopted the decision to consider this liability to be not criminal, but sui generis. Some Russian legal theorists were quick to support the tendency to recognize the practicability of introducing criminal liability for legal persons in spite of centuries-old traditions of liability for a personal guilt that is characteristic of the criminal law of the European continental countries. This can be explained by an excessive influence of the Anglo-Saxon common law countries, whose representatives went all out during the preparation of many international conventions to include into them the provisions that require establishing criminal liability for legal persons in national legislations of the European countries. But none of such conventions mentions the basis for criminal liability of legal persons. They fail to mention this fact, otherwise they would have to state that such liability suggests only strict liability. The author of the article tries to prove the irrelevancy of the above-mentioned type of liability in Russia with its rather effective administrative law and fairly solid provisions of the civil legislation which help to efficiently fight the damage incurred by legal persons (corporations) to different entities protected by the law. Introduction of the provisions on criminal liability for legal persons into the Russian criminal legislation touches upon the foundation on which all types of legal liability in this country are based on, as well as domestic centuries-old traditions, for it is not possible, without changing anything in the principal structure of the criminal responsibility, to simply include, without solid justification of the adopted changes, a new provision into the Criminal Code of the Russian Federation, in which only a range of criminal acts for which legal persons may be liable would be outlined, without indicating grounds for their criminal liability, in contrast with the grounds for the liability of physical persons.

Keywords: criminal liability, legal persons, crime, physical persons, liability for guilt, grounds for criminal responsibility.

DOI: 10.12737/14373

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PhD in law

Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: ampanokin@mail.ru

The paper studies the problem of proving a criminal event, in particular, the time, place, method and other circumstances of a crime. The study covers law enforcement bodies’ practice, applied in procedural documents to describe any evidence of a crime by using such phrases as “at unknown time”, “from an unidentified person”, “under unclear circumstances”, etc. The author analyzes legal positions of the Supreme Court of the Russian Federation concerning the absence of proof for an event or a crime, and concludes that it is only after all and every effort to establish the circumstances of a crime has been made, if it is impossible to positively identify some of them without doubt, that an interrogator, investigator, prosecutor or court can make an appropriate procedural decision. In all other cases, such circumstances shall not be considered proven.

Keywords: criminal proceedings, presumption of innocence, the right for defense, availability of evidence, proof of evidence, criminal event, time of a crime, scene of a crime, method of a crime, components of a crime.

DOI: 10.12737/14374

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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, Russia, 117218
E-mail: labour@izak.ru

The author analyzes the approaches to reforming the institution of occupational safety and health (OSH) in the Russian Federation. The aim of the article is to assess the OSH concept, suggested by WHO, ILO, and EU, from the perspective of necessity and feasibility of its main provisions in the Russian Federation. The research on the change in views on the OSH in light of the new OSH concept allowed determining topical directions of the further development of relations in the field of OSH and formulating the tasks to be solved in perception of the main provisions of the concept. The author highlights problems, which may be solved during the implementation of those tasks, particularly, the problem of application of the systematic, complex and personalized approach to OSH by employers, and the problem of prevention and early detection of occupational diseases, and the problem of creating favorable psychological working environment. The author develops a number of proposals on improving legal regulation in this field after detecting particular legal issues, connected with the change in approach to OSH implementation, and defining possible ways to resolve them.

Keywords: occupational safety and health, assessment of working conditions, professional risk, OSH management.

DOI: 10.12737/14375

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PhD in law, associate professor

The National Research Tomsk Polytechnic University
30, Prospeskt Lenina, Tomsk, Russia, 634050
E-mail: fra_nickolas@list.ru

The article analyzes system-related contradictions inherent to the development of the Russian labor law branch in XIX—XX. By means of historical-legal, comparative, dialectic methods the author investigates the roots of modern problems in law-making and law enforcement in legal regulation of hired labor relations. The author reveals negative factors in the development of the labor legislation, that are common for Russia and world leading countries. Among main evolutional problems in labor law, the author considers excessive centralization, a high degree of the right enforcement formalization, susceptibility of the branch to political environment, an important role of non-legal regulators of labor relations, low development level of security arrangements for labor rights, inadequate government supervision, a division of employees and employers’ interests, that is not always correct. The author draws the conclusion about the implicit, objective nature of the described defects and notes an essential impossibility to overcome them.

Keywords: Russian labor law, history of labor legislation, problems of labor law, anthropology of labor law.

DOI: 10.12737/14376

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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, Russia, 117218
E-mail: khludeneva@mail.ru

The article investigates ways and means of arctic ecosystems’ protection provided by the ecological legislation of Russia. In the opinion of the author of the article, reasonable legal regulation providing not only economic, but also ecological development of the Arctic is one of the most important conditions for expansion of ecologically safe use of the resource potential in this area. The article analyzes shortcomings of the Russian ecological legislation, and offers proposals for their elimination. The author also assesses the development prospects of Arctic ecosystems’ legal protection.

Keywords: legal protection, Arctic environment, potential of the Russian ecological legislation, prospects of the Arctic nature legal protection.

DOI: 10.12737/14377

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doctor of economic sciences, docent, associate professor

The State University of Land Use Planning
15, Kazakova st., Moscow, Russia, 105064
E-mail: kafzemprava.guz@mail.ru

The article reviews new rules on allotment of land plots to citizens and legal persons. The State Duma included these rules into the Land Code of the Russian Federation in summer 2014. Now they have come into force. The article focuses on the following issues. 1. How do these rules affect the land legislation in general? 2. What are the changes in the powers of public authorities of subjects of the Russian Federation and bodies of local self-government in regulating the order of land plots’ allotment and in implementation of such allotment? 3. How justified is the fact that now auctions are the only possible form of a land tender? The author believes that it is necessary to preserve competitive bidding for cases when same agricultural land plots are allotted to citizens and legal entities. Also there remains a problem associated with the transfer of power on allotment of lands from local governments of municipal areas to the level of rural settlements.

Keywords: land legislation, land plots allotment, local government, tender.

DOI: 10.12737/14378

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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, Russia, 117218
E-mail: adm1@izak.ru

The development of the Russian Northern territories is not only a domestic problem of this country, but also a global one. The Polar region, which is also called the Arctic area, attracts many and requires concentration of all forces on the solution of the problem of its development in the economic, social, military and strategic dimensions. In proportion to these circumstances, the role of legal aspects in the developing and emerging social relations also increases. Legal regulation for these parts of the Russian Northern territories and adjacent waters of the Arctic Ocean, constituting the Arctic zone of the Russian Federation, requires certain uniformity. This can be achieved by improving public administration over the Arctic zone of the Russian Federation, legislative recognition of its special status and the establishment of special regimes for natural resources, environmental protection, regulation of navigation along the seaways of the Northern sea route. It involves the formation of a special management procedure, i.e. the formation of a special administrative-legal regime. This is a complex task that requires scientific understanding of the problems that have a significant impact on the formation of the administrativelegal regime in the Arctic zone of the Russian Federation.

Keywords: Arctic, Arctic zone, the Arctic area, administrative and legal regime, public administration, legal regulation, public authority, local government, state border, the territorial sea, resource, shelf sea.

DOI: 10.12737/14379

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The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
Е-mail: Norair_hzanyan@mail.ru

The article is devoted to the study of topical issues related to the legal status of public health facilities, such as features of their legal status (standing), legal status structural elements (goals and objectives of medical institutions, their functions, establishment, reorganization and liquidation of medical establishments, guarantees of medical establishments’ rights). On the basis of the current legislation the author provides definitions of “medical treatment”, “legal status of a medical institution”, as well as reveals problems of medical institutions’ performance efficiency. The author shows the possibilities of legal rights in relation to affordable and quality health care, and legal relationships between a patient, a medical professional and a medical facility. The purpose of this article is theoretical understanding of the organizational and legal nature (status) of a modern medical facility under new socio-economic conditions for the development of specific proposals and recommendations aimed at improving the institutional and legal framework to ensure health protection of the Russian population. The author provides some practical recommendations for improving the legal framework in order to ensure the effective performance of medical institutions. The author also reveals problems impeding the improvement of the legal status of medical institutions.

Keywords: legal status, medical facilities, medical activities (care), legal status of medical facilities, structural elements of healthcare, the effectiveness of a medical establishment, rights of a medical institution.

DOI: 10.12737/14380

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PhD in law, associate professor

The Institute of Law of the Vladivostok State University of Economics and Service
41, Gogolya st., Vladivostok, Russia, 690090
E-mail: rectorat@vvsu.ru

The article is devoted to the problem of determining and proving the amount of compensation for moral damage, caused by unlawful criminal prosecution. Special attention is paid to the practice of proving the damage in court decisions. The author provides classification of circumstances, that need to be proved upon trial, and separates these circumstances into prejudicial and individual peculiarities of the victim that require proof, as well as depth and degree of the victim’s physical and moral suffering. This approach allows revealing shortcomings of proving. When courts pass their judgments in relation to this category of acts, they rarely assess the victim’s individuality. Refusal to prove the depth and degree of moral damage and to take personal individuality into account results in oversimplified and unmotivated decisions. The author comes to the conclusion that the current court practice is in conflict with the civil procedural code. In the author’s opinion, it is necessary to create rules for determining the amount of moral damage and carrying out mandatory examinations for assessing the victim’s individual characteristics.

Keywords: civil law, civil procedure, rehabilitation, unlawful criminal prosecution, moral damage, court judgment, proving of compensation amount.

DOI: 10.12737/14382

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PhD in law

Russian State University of Justice
69, Novocheremushkinskaya st., Moscow, Russia, 117418
E-mail: knyazkin-sergei@mail.ru

The problem of ensuring consistency in application and interpretation by the courts of law and adequate methodological, procedural and institutional means of its ensuring is one of the most relevant for functioning of the new Supreme Court of the Russian Federation. In this context, it seems appropriate to develop the most acceptable method of elaborating legal positions on the application and interpretation of the law by lower courts, and to suggest direct tools for its ensuring, as well as rationally justified forms of legal positions’ registering. Following the results of the research, the author concludes that the most appropriate methodological basis for ensuring consistency of the judicial practice is the priority of the analytical method combined with the descriptive method. As such, as a direct tool to ensure consistency in application and interpretation of the law by courts, the highest judicial body should consider legal provisions, contained in supervisory instance courts’ rulings for specific cases, as the main form of legal positions’ registering.

Keywords: consistency of judicial practice, analytical method, descriptive method, forms of legal positions’ registering, supervisory instance court ruling on specific cases.

DOI: 10.12737/14383

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