Contents of issue # 7/2015

doctor of legal sciences, professor

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 author considers the basic content of international instruments and the ILO Convention on minimum standards of social security and the need to take them into account in the Russian insurance pension legislation. In Russia, a higher minimum standard insurance for old age pensions is set without sufficient grounds and additional conditions for awarding such pension have been introduced, which will lead to the deprivation of the right to pension for many citizens. The author also assesses a special technique for determining the earnings replacement rate by pension suggested for Russia which does not coincide with the rules defined by the Convention, which leads to its ungrounded overrating.

Keywords. Retirement insurance, minimum standards, pensions, non-contributory pensions, replacement rate.

DOI: 10.12737/11737

  Full text in Russian

N. V. Mamitova, doctor of legal sciences

The Russian Presidential Academy of National Economy and Public Administration

84, Prospekt Vernadskogo, Moscow, 119571, Russia

E-mail: nvmamitova@mail.ru

A. V. Chepus, PhD in law

The Russian Presidential Academy of National Economy and Public Administration

84, Prospekt Vernadskogo, Moscow, 119571, Russia

E-mail: alexal_2004@mail.ru

It is an obvious fact that under the conditions of major changes and reforming in political, legal, economic and other spheres of functioning of the Russian state, the issues of degree and levels of governmental liability to civil society for the adopted decisions come to the fore. That is why this article analyzes perspectives of parliamentary responsibility of the government, its legislative enforcement and legal regulation. The article proves that the current Russian legislation often contains the norms that are characterized by instability and inconsistency, formalizing the issues of government responsibility before the parliament; in practice, the parliament supervisory powers, carried out in relation to the government activity, look quite inconsistent. Therefore the authors offer their vision of the solution of the abovementioned problems with the aim of formation of well thought out scientific basis and development of this important constitutional law institute.

Keywords. Parliamentary responsibility of government, Russian legislation, improvement, gaps, parliament, development tendencies, concept of responsibility.

DOI: 10.12737/11739

  Full text in Russian

PhD in history

Belgorod State National Research University

85, Pobedy st., Belgorod, 308015, Russia

E-mail: erygina@list.ru

Yet another change of the electoral system at the federal elections in the Russian Federation, the revision of the rules of conducting elections triggers a number of the questions about purposes and criteria of such reforms, doubts their objective nature, and undermines voters’ trust in the elections. The variety of electoral systems and the search for the best one is the topic of fierce scientific debates in various social sciences, including jurisprudence. Since the electoral system is a complex scientific category, there are many different approaches and methods to investigate it. And the author undertakes the search of those to emphasize the importance of taking into account of scientific developments, political will manifestations when the legislator resolves the conceptual task of selecting the electoral system that in suitable for the society and the objective conditions. The author recognizes the leading role of party-political ideology, viability when reforming the electoral legislation. However, in order to strengthen the legal order in the country, scientifically substantiated conclusions, obtained through the combination of general scientific, special (sociological, psychological and historical-cultural), particular methods of legal science, should become the basis for any legislation, including the electoral one. The author reveals such new methodological approaches, as anthropological, culturological, historical, social-psychological and comparative-legal for the conceptual solution of the problem of selection the best electoral system and its further use in the law-making and law-enforcement practice. The author touches upon the issue of searching for a scientific set of instruments, with the aid of which it is possible to apply the science in the political sphere in order to control political processes, including through the law.

Keywords. Electoral system, majority system, proportional system, mixed system, political parties, scientific methodological approach, scientific methods.

DOI: 10.12737/11740

  Full text in Russian

doctor of legal sciences

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 analyzes institutional and practical shortcomings of the Law on contract system, in particular, legal status of pseudo-customers, examination, information disclosure, warranty obligations, the Blacklist of suppliers. The author draws the conclusion on uselessness of tightening the legislation in relation to public procurement. The author considers “conditional application of the law” to be unacceptable: the applicable law is chosen depending on the background of the origin of money. The author suggests cancellation of the institute of examining contract performance results; and establishment of accurate differentiation of contractual and post-contractual obligations. The article notes truncated application of information disclosure norms and bad regulation of the Blacklist of suppliers. The author arrives at the conclusion of uselessness of tightening the legislation in relation to procurements.

Keywords. Contract system, contract, customer, examination, warranty obligation, subcontractor, bad-faith supplier.

DOI: 10.12737/11741

  Full text in Russian

A. S. Prokof ’ev, 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: alexprok86@gmail.com

V. M. Smirnova

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

The article examines current legal problems which arise in connection with trade mark license contracts. In the contemporary business environment a problem of liability for non-ensuring quality control under trade mark licensing law has become increasingly important. Restrictive business practices and regulation of parallel import is another concern. Authors analyze not only provisions of the substantive law but also legal regulation of the relevant issues concerning the conflict of laws rules. The article also tackles a major problem in the sphere of international private law: correlation of lex contractus and lex loci protectionis connecting factors. Lex contractus covers contractual aspects of the trade mark license such as contract interpretation, mutual obligations of the parties, their performance, discharge and consequences of breach thereof. And lex loci protectionis governs non-contractual aspects such as existence, validity and protection of the right to the trade mark itself. Sometimes it is difficult to label certain issues, like the licensee’s allowed continued use of the mark after the termination of the license, as contractual or non-contractual. The article offers comprehensive analysis of all these questions on the basis of the most recent legislation, court practice and doctrines, both Russian and foreign.

Keywords. License contract, trade mark, civil law, parallel imports, private international law, conflict of laws rules, lex contractus, lex loci protectionis.

DOI: 10.12737/11743

  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: alma_23@mail.ru

Socio-economic nature and legal content of private ownership of agricultural land in the Russian Federation and the Republic of Kazakhstan have accumulated new features that have not yet received sufficient theoretical understanding, scientific analysis and cross-light. This scientific article deals with the right of private ownership of agricultural land under the laws of Russia and Kazakhstan. The article describes the formation and development of the institution of private ownership of land in the Russian Federation and the Republic of Kazakhstan from the philosophical, historical, legal and economic perspectives. The author determines the legal essence, the characteristics and features of private ownership of agricultural land under the new economic conditions in the competitive environment. The author makes an attempt to understand the formation and development of this institution at the present stage of the development of our society.

Keywords. Government regulation, agriculture, land, market, land and agrarian law, private ownership of agricultural land.

DOI: 10.12737/11744

  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: ecology@izak.ru

Reclaimed and improved lands hold a special place in the land system of the Russian Federation, which determines the specifics of their legal regime.The article explores the legal nature and content of the legal regime for such lands, identifies their differences. The author gives her own definition of the legal regime of lands. The author notes that the legal regime of the reclaimed land and land plots that form part of those lands is highly differentiated. Therefore the author indicates factors that influence this regime. And it is hydro-technical and agroforestry activities performed on those lands that produce the greatest changes in their legal regime. If lands plots that form part of any land category, are recognized as reclaimed lands, it leads to tightening of the legal regime, because these lands need to comply with strict environmental requirements. Reclaimed lands are particularly vulnerable, especially those that form part of the agricultural zones of settlement lands; that is why the legal mechanism for their protection and conservation was established. The author points out to general deterioration of their ecological state, reduction of land and proposes solutions to these problems through legal means.

Keywords. Land law, legal regime, land reclamation, reclaimed land, land protection, protection zone.

DOI: 10.12737/11752

  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: foreign1@izak.ru

This article is dedicated to the issues of foreign successful experience in legislative regulation of asset forfeiture mechanisms resulting from offenses. Modern states increasingly use different types of confiscation to deprive criminals of any proceeds derived from their offenses. It can be confiscation with criminal conviction, non-conviction based confiscation in rem. Application of civil procedure methods transfers the burden of proof to the defendant. Though confiscation in rem cannot replace criminal forfeiture. The author concludes that at the present time there occurs transformation of different types of confiscation, their enhancement. Particular emphasis is laid on extended confiscation. This type of confiscation allows using similar methods which are used in civil proceedings. Under the influence of international laws extended confiscation is implemented and used in the European criminal law on a large scale, which demonstrates tendencies to unification. On the basis of the analysis of the legislation on forfeiture of illicit assets in several countries in recent years (Great Britain, Australia), the author concludes that there are significant changes in the traditional approach to this institution. One can say that the scope of the institution expands and undergoes modifications in various jurisdictions. Extended confiscation of an offender’s assets, if the crime was committed out of selfish motives, is a fair public response. It is necessary to introduce this type of confiscation in Russia.

Keywords. Confiscation, civil forfeiture, extended confiscation, unexplained wealth, tax foreclosure, proceeds of crime.

DOI: 10.12737/11754

  Full text in Russian

PhD in law, 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: spkubantsev@mail.ru

The article raises the question of the object of a bankruptcy crime. The major problem is the coincidence of the generic and specific objects of such crime. Such vagueness in the legislative regulation generates incoherent law enforcement and confusion in practice in cases of a bankruptcy crime. Besides it creates opportunities for the criminal law abuse in certain cases. The author suggests changing theoretical and legislative approaches to the definition of the specific object of bankruptcy crimes. In particular, a specific object of bankruptcy crimes should be identified according to the characteristic of an independent specific object of the crime, which will result in its significant elaboration for this type of crime, without changing the content and focus of the Special part of the Criminal code. The author considers the direct object of the bankruptcy crime that refers to the totality of social relations concerning legal protection of the statutory recognition of a debtor as a bankrupt, voluntary satisfaction of creditors’ claims, and proportional and priority distribution of the bankruptcy estate as a result of applying bankruptcy procedures, to be a matter of principle.

Keywords. Crime, bankruptcy, object of crime.

DOI: 10.12737/11755

  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: Makov71@mail.ru

The objective of any government is to ensure safety of individuals, contributing to prevention and detection of crime. The problem of protecting whistleblowers, who receive inadequate attention from the national legislator, is one of the most important problems. The Russian Federation has accepted obligations to take appropriate measures to ensure effective protection of individuals reporting about corruption, as a member state to the United Nations Convention against corruption, adopted in New York on 31 October 2003 and ratified by the Federal law on 08.03.2006 N 40-FZ (Art. 32-33). However, it should be recognized that the national legislation does not contain all of the Convention principles, and Russia takes insufficient measures to implement the international community’s recommendations on the application of security measures to protect whistleblowers from the adverse consequences for them. The article analyzes the current legislation regulating the system of measures of state protection of individuals ensuring criminal justice in general, and whistleblowers in particular. The article notes that the legislation, regulating the state protection of individuals, contributing to the prevention and detection of crime, to a large extent takes into account the fundamental international principles and standards for ensuring safety of individuals in criminal proceedings. However, there remains the problem of insufficient protection measures in relation to whistleblowers, which is one of the reasons for poor efficiency of prevention and detection of corruption crimes. To solve this problem, the author proposes some measures that strengthen protection of whistleblowers to a maximum extent, as well as contribute to further improvement of the legislation in the sphere of state protection of individuals promoting criminal justice.

Keywords. Crime, ensuring safety, protection measures, corruption, anti-corruption, whistleblower.

DOI: 10.12737/11756

  Full text in Russian

PhD in law, associate professor

Stavropol Branch of the Krasnodar University of the Ministry of Internal Affairs of the Russian Federation

43, Prospekt Kulakova, Stavropol, 355035, Russia

E-mail: sopneva@mvd.stavedu.ru

The author analyzes legislative, theoretical and practical levels of suspicion and charge enforcement. The author identifies problems of understanding the concepts of suspicion and charge: during theoretical and legislative classification of these categories the author identifies the absence of sound differences in their essence. The author considers foreign experience in realization of the suspicion and charge statuses in criminal remedial activities. The author comes to the conclusion that on the one hand, the suspicion, due to its procedural demand and importance has the right for independent theoretical development and independent legal regulation and on the other hand, it can be considered as an alternative to charge, since the latter cannot be considered to be the only possible basis for a transfer of a criminal case to a court. The author also accepts the variant when suspicion takes principal procedural time and the charge is defined at the end of criminal proceedings when the case is transferred to a court to be considered on the merits.

Keywords. Suspicion, suspect, charge, accused, range of problems, legislation.

DOI: 10.12737/11757

  Full text in Russian

V. N. Yuzhakov, doctor of philosophy, professor

The Russian Presidential Academy of National Economy and Public Administration under the President of the Russian Federation

82, Prospekt Vernadskogo, Moscow, 119571, Russia

E-mail: yuzhakov-vn@rane.ru

O. V. Aleksandrov

The Russian Presidential Academy of National Economy and Public Administration under the President of the Russian Federation

82, Prospekt Vernadskogo, Moscow, 119571, Russia

E-mail: aleksandrov@cefc.ru

E. V. Talapina, PhD in law

The Russian Presidential Academy of National Economy and Public Administration under the President of the Russian Federation

82, Prospekt Vernadskogo, Moscow, 119571, Russia

E-mail: talapina@hotmail.com

The article explores the problem of legal coverage for quality improvement of the Russian state administration. The main conclusions of the research are as follows: 1) the low quality of the current Russian state administration is to a great extent related not only to the shortcomings of certain regulatory legal acts, but also in general to the lack of consistency in its legal regulation; 2) consistency of legal regulation of the Russian state administration can be ensured through drafting and adoption of the federal law on the basics of state administration. The author provides suggestions on the concept of the basic, backbone federal law “On the Basics of State Administration in the Russian Federation”. The article was written following the results of the research work “Analysis of completeness and sufficiency of legal regulation of the state administration process and concept development for the federal law on state administration in the Russian Federation”, executed by the Center of State Administration Technologies with the Russian Presidential Academy of National Economy and Public Administration as part of the RANEPA’s government task in 2014.

Keywords. State administration, government services, state functions, executive authorities, state administration bodies, result-based management, administrative reform.

DOI: 10.12737/11760

  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: deola@mail.ru

The article considers the dynamics of the federal legislation that regulates investments in capital construction projects: principles of town-planning and investment activity, the order of acceptance and execution of decisions in the sphere of construction and capital repairs, interaction between public bodies, economic operators, and citizens. On the basis of the analysis of the federal laws on investment activity and the Town-planning code of the Russian Federation the author draws conclusion on the necessity of a comprehensive adjustment of the legislation for this sphere of economic activity. Such adjustment should affect two major areas. On the one hand there is the protection of interests in proper environment of public-law entities’ population. The achievement of this goal will provide finding the balance of interests of the population and investors in town-planning design standards and public procedures for the adoption of all town-planning decisions. On the other hand, there is the protection of investors’ legitimate interests consisting of establishing unambiguous legislative regulations that provide protection of their investments.

Keywords. Public authorities, local governments, investors, town-planning design standards, exhaustive list of procedures.

DOI: 10.12737/11761

  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: mp@izak.ru

The author analyzes the entry into force of international treaties as a result of accession from the point of view of both the international and domestic law. Multilateral international treaties are the instrument of international cooperation. In this regard the accession is the most interesting type of the entry into force of international treaties. The accession means that an agreement should be bound by an international treaty which the subject of the international law did not sign or participate in its preparation. The author examines the use of the international treaties’ restrictive provisions concerning their accession. The author emphasized that such restrictions are used as a rule in a regional context. The author points out that the provisions on accession may extend to non-governmental organizations. The author points out that despite the apparent trend of the development of multilateral treaties in the direction of their accessibility to the largest possible number of states, the current state of international law does not give grounds to assert that there is an automatic right of states to accede to the treaties, the elaboration of which these states did not participate. The article analyses the practice of different states on the accession to the international treaties.

Keywords. International law, international treaty, accession, the Vienna Convention on the Law of Treaties.

DOI: 10.12737/11762

  Full text in Russian

PhD in law

Kazan Federal University

18, Kremlevskaya st., Kazan, 420008, Russia

E-mail: mvkeshner@gmail.com

In 2014, a number of states and integration entities imposed sanctions and restrictive measures against the Russian Federation. The author analysis acts the measures adopted by the United States, the European Union, some other countries against the Russian Federation, from the point of view of the international law. The author investigates reasonableness of the arguments justifying the sanctions against the Russian Federation; and examines the issues of coercion in the international law, which has its specific features that are primarily predetermined by the nature of interstate relations and methods of their legal regulation. The author provides an update on the problem of “collective counter-measures” or counter-measures in collective interests and classification of activities of the third countries who “have joined” in with the imposed restrictive measures. The author considers the practice and consequences of imposing unilateral sanctions by a number of states, the trends of its development and legitimacy of the existence in light if the modern international law development.

Keywords. International sanctions, unilateral sanctions, countermeasures, collective countermeasures, legitimacy, international legal responsibility.

DOI: 10.12737/11764

  Full text in Russian