Contents of issue # 2/2015

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: ecology@izak.ru

Definition of environmental priority is revealed, essence of environmental priority principle and its economic action are examined, issues of application of civil legislation in regulation of land and other natural resource relationships are discussed, legislation gaps in the sphere of environmental informatization of society are revealed as well. Foreign practice of environmental informatization of society concerning environmental projects is given, as well as examples of strong and weak environmental legal decisions, difficult debatable issues of environmental and natural resource law are discussed.

Keywords: environmental legal principles, environmental priority, civil law, natural resource law, reimbursement, compensation, damage tax, methodic, accountancy, environmental projects, environmental information.

DOI: 10.12737/7539

  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: liav2013@yandex.ru

In the article the pre-conditions for the forming the russian identity on a legal basis along with an ethnic identity are examined. The legal measures, devoted to strengthening the process of uniting the russian nation and restoration the national peculiarity for the perspective revival of the russian identity are also observed in this article. In the article the author pays special attention to the circumstances, which are in a great demand now, such as: to guarantee the essential development of the national languages, national culture of the russian inhabitants, to protect and support the rights of the cultural autonomous territories. In the article there is also the analysis either of the strategic or of the normative documents, adopted in the regional legislative institutions, which are presented here since they are aimed at forming the russian civil identity. Besides the above mentioned, the author determines and detects the main nowadays trending in the legal regulation system, targeting at approaching the described goals as well. Particularly the author underlines the progressive features in the everydays development of the legal regulative mechanisms, used for restoration and strengthening the russian identity.

Keywords: Russian civil identity, interethnic identity, ethnic relations, ethnicity, national language, the development of legislation, tolerance.

DOI: 10.12737/7540

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PhD in law

Moscow State Regional Institute of Humanities

22, Zelenaya st., Orekhovo-Zuevo, 142611, Russia

E-mail: cokol4512@yandex.ru

Acculturation — this intercultural contact of various societies. When contacting legal cultures subject to investigation legal of acculturation. The article reveals the mechanism of legal acculturation as a set of interrelated, interdependent methods, tools, techniques and factors providing intercultural contact of various societies. Parties acculturation: the society-recipient, society-donor, society-partner. In the process of legal acculturation are the following steps: identification of needs, borrowing, adaptation, perception (assimilation), result. Depending on the position of society enters into intercultural contact and acculturation distinguish legal mechanism such historical forms as reception, expansion, assimilation, integration and convergence. The author applied the historical-cultural studies approach.

Keywords: legal culture, legal acculturation, the legal mechanism of acculturation, modernization, unification.

DOI: 10.12737/7571

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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: vinogradovapa@gmail.com

During the last decades an imbalance in the territorial distribution of population in Russia is increasing. That contributes to the emergence of interethnic tensions. The article is devoted to the process of elaboration of the legal provisions that support internal migration. The author’s attention is focused on decrees of the Russian Federation President related to migration issues and the main trends of the development of legislation in this area. The author explains the necessity of legal regulation of authorities’ power in the area of migration at federal legislation level because of the influence of migration restrictions on constitutional rights of citizens. Creation of effective legal mechanisms of regulation internal migration caused by the need to account the geopolitical interests and the economic and social development of the country and possible change of priorities of trade and economic cooperation, as well as the development of import substitution. The main focus lays on the deterrents for internal migration, overcoming of which is possible by using legal means to identify priority measures. Changing the nature of records at the place of stay from permissive to notification is one of the main instruments that require clarification of the procedures and grounds of such accounting. The availability of the social infrastructure and accessible mechanisms for the use of infrastructure is also an important prerequisite for attracting labor resources. The new institution of law — renting living accommodation for social use and its impact on the development the internal migration are considered in this article as one of said prerequisites. The author has generalized factors of ethnic and religious tension and proposed measures to prevent them.

Keywords: internal migration, records, uneven settling, accommodation for social use, relations between the nations, interethnic conflicts, tolerance.

DOI: 10.12737/7572

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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: oleg_gutnikov@mail.ru

The article discusses the features of the legal status of organizations against officials whose legislation against corruption provides additional anti-corruption measures are the same as apply to public servants. Concludes that the legal status of the organizations concerned are completely different. Rallying point for them is essentially only the Federal Law «On Combating Corruption», according to which range of organizations, the most significant for the state and society in terms of corruption risks, determined by government approval lists of specific legal entities. The article provides a critical assessment practices of approving lists of organizations that have special importance for the state and society in terms of corruption risks. This practice is discriminatory and violates the constitutional principle of equality before the law and the courts. In the anti-corruption legislation is proposed to define the categories of legal entities which are most significant for the state and society in terms of corruption risks. In determining relevant categories of legal entities must treat them not only organizations which have the legal relationship with the Russian Federation, but also other organizations, which in terms of corruption risks are of particular importance for society and the state. These organizations are invited to refer seven categories of legal entities.

Keywords: legal entities, legal status, lists of entities, categories of legal persons, anti-corruption legislation.

DOI: 10.12737/7573

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PhD in law

The Russian State Academy of Intellectual Property

55a, Miklouho-Maclay st., Moscow, 117279, Russia

E-mail: exlegue64@mail.ru

This article is devoted to the collective management of copyright and neighboring rights as one of the most important ways of their implementation in Customs Union, Common Economic Space, Eurasian Economic Union and also ensuring property rights of authors, performers, producers of phonograms and other holders of copyright and neighboring rights in cases, when their practical implementation individually is difficult. World Intellectual Property Organization and UNESCO has repeatedly emphasized the importance of collective management as the most suitable path that avoids the limitations of copyright and related rights with providing legal opportunities for mass use of intellectual property in the new high-tech areas. Questions of collective management of copyright and related rights take a significant place in the directives of the European Union adopted in the last decade. Copyright collecting agency must have the whole spectrum of rights for its operation which will allow it to conclude licensing agreements and ensure their legal clarity.

Keywords: Eurasian Economic Union, Customs Union, Common Economic Space, copyright and neighboring rights, intellectual property, rightholder, collective management.

DOI: 10.12737/7574

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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: labour@izak.ru

The legal sciences should explain constitutional requirements to the legal regulation of law branches. In the article the requirements to social security of children (as well as under-age children) are researched. The most important guarantee of children social rights is the acknowledgement the Russia as a welfare state, which policy is aimed to create conditions for decent life and free development of human being. In view of the historical continuity and in the interests of future generations, safekeeping of the country and saving of the people, Russia can and have to be the genuine welfare state. The international standards of social security and its level need to be implement into the federal legislation more completely. The age is the ground for not only the older persons social security but children as well. So it should be provided to each child at required and sufficient level. The constitutional guarantee of social security for children upbringing supposed to provide the needed benefits for parents taking care of children. In order to increase the well-being of children and the quality of their social security, the wages of the persons with family responsibilities should be increased. Although the issues of economic development and civil society have not been settled enough in the Constitution, it is not an absolute obstacle for progressive social and economical development of the country and legal provision of needed social guarantees to each Russian child.

Keywords: child, under-age children, Constitution of the Russian Federation, welfare state, international standards, social security, security in old age, security for children upbringing.

DOI: 10.12737/7543

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S. M. Zyryanov, 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: zyryanov.s@gmail.com

A. M. Tsirin, 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

The present article is devoted to problem aspects of administrative responsibility for illegal remuneration on behalf of the organization in the Russian Federation. In the article on the base of law-enforcement practice are analyzed suggestions for improvement of legislative mechanisms of involvement organizations to responsibility for the corruption offenses made from a name or in interests of such organizations. Carrying out researches on the designated subject is provided by the National plan of corruption counteraction for 2014—2015. In Russian law-enforcement practice there are a lot of cases when the organization actively assists in criminal prosecution of the guilty person. However, judges make the organization responsible. Considering the big sizes of sanctions provided by this article, the situation is perceived as injustice and doesn’t promote achievement of the objectives of administrative responsibility. In this regard authors developed the special bases of releasing organization from responsibility in cases when governing bodies actively promote disclosure and investigation of the criminal offence made by interested person.

Keywords: administrative legislation, corruption, criteria, responsibility, wine, administrative offense.

DOI: 10.12737/7545

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doctor of jurisprudence, associate professor

The Department of Corruption Prevention of the Administration of the President of Russian Federation

4, Staraya square, Moscow, 103132, Russia

E-mail: vim2007@yandex.ru

Based on the analysis of the practice of application of Chapter 8 of the Criminal Code of the Russian Federation and other laws it is proved that the Russian legal system has developed two groups of rules on the legality of causing harm while protecting interests: Article 37 of the Criminal Code of the Russian Federation, which regulates the behavior of individuals, and other legal acts regulating professional activities of the persons concerned. Is proposed to add to Chapter 8 of the Criminal Code of the Russian Federation a norm, according to which it is not a crime to cause harm to legally protected interests under the lawful performance of professional functions. The necessity to develop an algorithm of a legal assessment of the harm under the circumstances, exceptions to criminality, other than the classification of the offense.

Keywords: self-defense, crime, legitimate harm performance of professional functions, circumstances precluding criminality, legal assessment.

DOI: 10.12737/7546

  Full text in Russian

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

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

E-mail: barrister@cardio.ru

The article discusses current issues in the restoration of victim rights by applying one of the fundamental principles of criminal law: the reestablishment of social justice and the commensurability/proportionality of the criminal justice system. Study the problems in the theory of criminal punishment that justify the possibility of increasing the punishment after conviction. The author also analyzes some of the positions of modern medicine which is based on the ability to change the verdict and appointment of new criminal penalties. Insufficient developed changes that were made to the criminal procedure law, can create problems of law enforcement practices that lead to a substantial violation of the rights of victims. The article also examines conflict general principles of criminal law, namely, the restoration of social justice and proportionality of criminal punishment and principle non bis in idem. The author points out significant challenges that may arise in law enforcement and offers solutions.

Keywords: victims, commensurability, punishment, body harm.

DOI: 10.12737/7595

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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: foreign3@izak.ru

The article presents analysis of the practice of the corporate disputes resolution in commercial arbitration as well as in the state courts. According to the author the example “Maksimov case” which was often mentioned as an example of a corporate dispute resolved in commercial arbitration but set aside by the state justice proves that the line between corporate disputes and non-corporate dispute is almost invisible even after the legislation has been changed. The attempts to make corporate disputes non-arbitrable makes the regulation of the market relations unpredictable and spoils the investment climate. The so called “pocket arbitration” (or “corporate arbitration”) may be useful for the improvement of intercorporate relations, or resolution of the disputes among professionals. The “one-side” or “optional” arbitration clauses sometimes may serve as a form of investor protection of consumer protection as it gives the weak party advantage of choice of the form of the legal protection of its interests. According to the article, publication of arbitration rules and awards would make arbitration more transparent and more effective. The confidentiality should be preserved for the mediation proceedings. Author gives examples of various mediation proceedings. On the basis of the analysis the author makes recommendations for the improvement of the national legislation. Understanding arbitration and mediation as part of the judicial systems reform in Russia author recommends to use the international standards of regulation reflected in th UNCITRAL Model Arbitration Law.

Keywords: corporate disputes, investment disputes, tertiary courts, arbitration, arbitration clause, arbitration agreement, recognition and enforcement of arbitration awards, state arbitration courts, mediation.

DOI: 10.12737/7629

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PhD in law

South Ural State University (National Research University)

76, Lenin prospekt, Chelyabinsk, 454080, Russia

E-mail: garbatovich@mail.ru

The article deals with the grounds on which a person may be relieved of criminal responsibility in connection with reconciliation with the victim. In accordance with Article 76 of the Criminal Code of the Russian Federation that is based on the simultaneous implementation of the following conditions: 1) for the first time a crime of small or average gravity; 2) reconciliation with the victim; 3) compensation of harm caused to the victim. The face in the presence of the above conditions are not necessarily subject to unconditional exemption from criminal liability, this right depends on the discretion of a law enforcement official. Through an analysis of the norms of criminal law, judicial practice addresses the question whether it is permissible to exempt from criminal responsibility in connection with reconciliation with the victim’s mother, who killed her newborn child. Victims can be considered the closest relatives of the murdered child (father, grandparents)who are also relatives and friends in relation to the motherkiller. Victims may initially not interested in bringing her to justice and appropriate compensation to victims can be represented as some Convention and formality. Mother release from criminal responsibility for the murder of a newborn child in such circumstances, does not comply with the principle of justice, and not adequately solves the problem of the criminal code of the Russian Federation for the protection of the rights and freedoms against crime. Therefore, in the presented work provides General guidance on when such exemption from criminal liability is possible, and when it is not desirable.

Keywords: criminal responsibility, reconciliation with the victim, neonaticide committed by a mother.

DOI: 10.12737/7632

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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

In the scientific article discusses issues related to the nature, the main characteristics and features of international acts of recommendation. Analyzes the legal problems arising from the application of international recommendation acts in contemporary international relations. Explores the role of international organizations in the development of various acts of recommendation. Substantiates the growing influence of international acts on the recommendation of the legal system, including the Russian Federation. Contains proposals for the establishment of an effective mechanism for the use of international acts of recommendation, taking into account the legal system of the Russian Federation, its constitutional principles and the protection of national interests.

Keywords: international recommendation acts, soft law, legal system, international law, implementation, international organizations, international legal instruments.

DOI: 10.12737/7547

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Far Eastern Federal University

8, Suhanov st., Vladivostok, 690950, Russia

E-mail: gavrilovfirst@gmail.com

This article addresses to the key issues of the legal status of the Northern Sea Route in the historical perspective and in accordance with the Russian legislation. It contains the comparative characteristic of the Russian approach to this issue and the Canada’s rule-making activity in this area. It describes the characteristic features of the legal status of the internal waters, exclusive economic zone and some arctic straits of Russia in this context. Gives an answer to the question of its correlation with the norms of contemporary international law of the sea and, in particular, with the UN Convention of 1982. In this regard, the paper emphasizes that relevant Russian and Canadian legislation should be treated as lex specialis in relation to the regulation of navigation in the Arctic coastal areas that provide for higher navigation standards and requirements as compared to the international norms of international law of the sea. It is concluded that the integrity and specificity of the legal status of the Northern Sea Route, as well as the Russia’s ability to control using of it can be justified as by a logistic unity of this national transport communication of Russia and by features of the region, where it passes. Indicated the need for further development of regional and international cooperation in the Arctic and for creation of international instruments defining its terms and content. Here lies the key to the peaceful and effective use of resources and spaces of the Arctic taking into consideration the national interests of Russia and other Arctic countries.

Keywords: the Northern Sea Route, Arctic, international law of the sea.

DOI: 10.12737/7635

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