Contents of issue # 1/2016

corresponding member of the Russian Academy of Sciences, doctor of legal sciences, professor

34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office2@izak.ru

Recent intensive development of private law, which is presented by three successful codifications in the field of the civil, family, labor law in Russia, is noted in the article. Current changes of the Russian civil legislation as well as planned ones are described. To number of the main problems the author refers violations of the principle of good faith by participants of civil turnover, lack of effectiveness of the Federal Bailiff Service, insufficient security of the civil rights for real estate. In this regard it is necessary to form a notarial certification of real estate turnover, to keep availability of information from the state register of real estate for citizens, raise the status of the Federal Bailiff Service and strengthen its position by hiring highly qualified specialists.

Keywords: private law, principle of good faith, notary, enforcement of court decisions.

DOI: 10.12737/17225

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doctor of legal sciences, associate professor

Lomonosov Moscow State University
1, Leninskie Gory, Moscow, Russia, 119991
E-mail: Abrosimova_ea@mail.ru

The modern history of the development of the legislation on non-profit organizations (NPO) has several historical stages from 1992—1996 when Russia recognized the fact of existence of this kind of legal entities. Active work on the formation of NPO legislation led to the delineation of legal entities for commercial and non-commercial and to adoption of Federal Law “On Non-Profit Organizations”. During the modern period of development of the legislation it is possible to declare confidently the need to create comprehensive concept of participation of legal entities established as an NPO in the realization of the economic potential of the country. The article deals with the legal regulation of nonprofit organizations involved in economic development in Russia. Taking into account the changing economic conditions periodization of work on the legislation on non-profit organizations is considered. In the article the role and importance of NPOs in Russia´s economic development are highlighted and the need to improve the legal regulation of these organizations, including the development of specific legislation on associations and unions is indicated. The necessity to recognize the Federal Law “On Non-Profit Organizations” invalid as fulfilled its social mission is proven.

Keywords: non-profit organization, the Federal Law “On Non-Profit Organizations”, improvement of the legislation, association, economic development, organizational and legal forms.

DOI: 10.12737/17226

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doctor of legal sciences, professor

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

The presence of collective and of individual and collective types of economical activity. The collective economical activity is based on contractual and charter principles. The definition of organizational-legal form of economical activity has been suggested. The expansion of organizational and legal forms of economical activity has been described. The comparative description of an individual person and legal entity have been given. The legal personality of a legal entity has been considered in terms of applied additional requirements — optional as well as special ones. The revealed meaning of legal classifications of legal entities shows that the efficiency of economical activity management does not depend on the mentioned classification. 2 types of economic activity of legal entities have been identified: business activity — commercial legal entities and income generating activities — non-commercial legal entities. The property basis of non-commercial entities engaged into profit generating activity was taken into consideration; it’s been noted that the size of such activity evolves special requirements. The main problems of legal control over profit generating activity have been formulated. The “commercialization” of the legal entities activities has been proved. The need of legalization of other legal personalities in addition to juridical persons has been justified.

Keywords: business organizational forms, legal capacity, entrepreneurial activities, legal entity, income generating activities.

DOI: 10.12737/17227

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doctor of legal sciences

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

The article is considered some aspects of economic activity of non-commercial organizations. The author notes that updated norms of the Russian Civil code not fully take into account economic principles of operation non-commercial organizations in conditions of market economy. That is why the desired effects from their work in Russia are not received. Particular attention is paid to the analysis of the relationship of legal categories “income-generating activity of non-commercial organizations” and “entrepreneurship activity of non-commercial organizations”. Author came to a conclusion that this categories have various economic essences. The income-generating activity for the non-profit organizations may have different characters, including as the main. Consequently the author indicates the need for a differentiated approach in determining the fundamental possibility and valid frames of implementation the income-generating activity for the non-commercial organizations. The article proposes to distinguish groups of non-profit legal entities and give them any special opportunities in the implementation of income-generating activity. These opportunities depend on the purposes of the organizations and the chosen methods of operation.

Keywords: non-commercial organizations, legal entities, income-generating activity, entrepreneurship activity, economic activity.

DOI: 10.12737/17228

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doctor of legal sciences, professor

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

The article deals with the issues of dependence of flexible or rigid labour law norms and macroeconomic effectiveness. The conclusion is made that traditional neoliberal dogmas about negative effect of labour law norms on the economic effectiveness are not supported by the serious empirical proof. In contrary, modern researches show that the long-term positive economic effect of labour law norms may be found in such issues as diminishing the incomes gap, growing consumers’ demand, workforce productivity and creation of knowledge-based economy. The Russian labour law is considered to be not enough flexible in the issues of bureaucratic obligations of the employers towards the state in the human resources management matters. Those requirements should be alleviated without a real danger to harm the employees’ rights. In contrast, the regulation of relations between the employers and employees is considered to be overly flexible, contrary to the popular myths that it repeats the Soviet rigid labour law norms. The author claims that there is enough space to enhance the protection norms in the areas of social dialogue, minimum wages, working time, the regulation of labour relations within the groups of companies and in the number of other issues. All mentioned directions of law modification will not lead to the negative consequences to the economy, but would rather result in a better social stability and employers’ effectiveness in the time of macroeconomic crisis.

Keywords: social rights, economic rights, labour law, flexibility of law, economic effectiveness of law.

DOI: 10.12737/17229

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doctor of legal sciences, professor

Kuban State Agrarian University
13, Kalinina st., Krasnodar, Russia, 350044
E-mail: vpkam@rambler.ru

The article provides a critical analysis of legislative regulation of the corporate agreement and an agreement on the implementation of the rights of members of a limited liability company. It is alleged that the corporate contract has undoubted relevance and usefulness to the participants of companies, as it allows to regulate relations in the implementation of corporate rights is not a natural way, and on a contractual basis, recognized by the parties and provide legal protection for the parties to the contract. It stands out as a number of circumstances that require legislative authorization and refinement in the process of enforcement of a limited liability company. Among the outstanding legislator before the end of the problems include: the problem of correlation of the content of the agreement on the implementation of the rights of the parties and the agreement on the establishment of the company; the problem of correlation of the contract on the implementation of the rights of the participants and the Company Charter, decisions of the general meeting; the problem of succession of the contract on the implementation of the rights of participants; the problem of awareness of other members of the Company and third parties about the agreement on the implementation of the rights and conditions.

Keywords: corporate agreement, agreement on the implementation of the rights of members of society, corporation, legal persons, succession, implementation of law, business organizations, shareholders agreement, business companies, shareholders.

DOI: 10.12737/17230

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doctor of legal sciences, professor

The Institute of State and Law of the Russian Academy of Sciences
10, Znamenka st., Moscow, Russia, 119019
E-mail: landlaw@igpran.ru

The article is devoted to the previously called ambiguous interpretation of doctrine and judicial practice: how should land for farming be provided — in the auction, or no auction. The changes to the Land Code of the Russian Federation in the summer of 2014 are analyzed, and their assessment is given by the author. The article of the Land Code, admitting, unlike civil law, only one form of auction — auctions is criticized. In particular, in relation to agricultural land the most appropriate form of trading would have been a competition. The author concludes that the farmers, as before, will receive plots of land mainly from auction, despite the presence in the Land Code of the provisions on allocation of land plots without bidding.

Keywords: peasant (individual) farm, agricultural land, property, rentals, trades, auction.

DOI: 10.12737/17231

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candidate of legal sciences

The International Commercial Arbitration Court under the Chamber of Commerce and Industry of the Russian Federation
6/1, Ilyinka st., Moscow, Russia, 109012
E-mail: shafir07@mail.ru

The author indicates that the feature of contracts of power supply through connected network of electricity, thermal energy and gas, which it calls the contracts built under the model of power supply contract, is that they mediate their underlying specific economic relations, the main feature of which is the scope of the scope of the consumption resources. This fact is the main factor separation obligations to supply through the connecting network into an separation type of contract in the civillaw obligations. For the first time in the literature, the author proves the inclusion of these contractual obligations as the types of contract not only the supply of the connected network electricity, heat and gas, but also oil, oil products and cold water.

Keywords: contracts of power supply through connected network, contracts built under the model of power supply contract, subject-matter of the contracts of supply through connected network, economic relations in the sphere of resources supply through connected network, obligations to supply through connected network as a separate contractual type.

DOI: 10.12737/17232

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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: civil@izak.ru

The review reflects main ideas expressed in the reports of the participants of X conference in memory of Professor S. N. Bratus, a famous civil lawyer and legal theorist. The conference is held annually in the Institute of Legislation and Comparative Law under the Government of the Russian Federation. During the conference the participants discussed controversial issues of the development of legislation on the law of things, status and activities of legal entities in the sphere of intellectual property, power industry, use of natural resources and ecology, labor legislation, the problem of Russia’s simultaneous participation in WTO and EAEU.

Keywords: scientific conference in memory of S. N. Bratus, law of things, legal entities, energy law, labor legislation, Eurasian Economic Union.

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doctor of legal sciences, professor

The Russian State University of Justice
69, Novocheremushkinskaya st., Moscow, Russia, 117418
E-mail: 2707xyz@mail.ru

The expansion of its methodological arsenal of techniques developed from the standpoint of subjective idealism: synergy, hermeneutics, phenomenology, metaphysics, and others are inherent to the modern methodology of legal research. According to Russian lawyers who advertise them, methods are so efficient that they can be used successfully to solve a significant part of the tasks that were previously unaffordable by traditionally used method of knowledge of the state and law. At the same time, the specificity of these methods use in jurisprudence are hardly developed. As a result, practices are not in widespread use of legal science. However, their provisions are used for specific research and entail a number of negative consequences. Firstly, it reduces the requirements for accuracy and validity of the scientific knowledge. Secondly, justify the use of science in the compilations of methods and eclecticism. Third, reduce the interest in socio-legal studies. Crucial means of further development of the methodology of legal research is a creative development of the dialectical method, in the Russian jurisprudence has a long history and a long tradition.

Keywords: methodology of jurisprudence, phenomenology, hermeneutics, synergetics, concept, method.

DOI: 10.12737/17233

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The National Research University “Higher School of Economics“
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: Minkh_GV@gov.ru

The legal content of the legislative initiative of the President of the Russian Federation is characterized by diversity of this phenomenon. It illustrates the relationship of legislative initiative as a constitutional head of state powers and as the stage of the legislative process; justifying the importance of the constitutional-legal institute of legislative initiative of the President of the Russian Federation in the legal system of the Russian Federation. Particular attention is given to the positive and negative characteristics of the presence of the head of state of this legal instrument. Being legislative initiative is seen in the existence of constitutional and legal relationship between the subject of the right of legislative initiative and representative organ of state power over the application, taking in consideration and issued a legislative proposal on the various stages of the legislative process. Substantiates the role of the legislative initiatives of the President of the Russian Federation in various stages of the legislative process. There is a trend to strengthen the executive power in the legislative process, with the result that the center of the legislative initiative is moved from the parliament to the executive branch and to the President. It is concluded that a legislative initiative of the President acts as a practical manifestation of the principle of separation of powers, the observance of which helps to maintain the authority of the country´s presidency, predetermining the leading position of the President of the Russian Federation in the state and society.

Keywords: legislative initiative, the stage of the legislative process, constitutional-legal institute of the constitutional powers of the President of the Russian Federation.

DOI: 10.12737/17234

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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: basic.capital@mail.ru

Article examines the theoretical aspects of the concept of “State function’s”, rises question of the classification of state function’s and functions of the welfare state in order to reflect the accumulated knowledge of legal science section of the specified definition and identify the functions not previously considered in the theory of the state. The destabilization of the economic situation in the community and respect for the principle of the social state actualized this problem in the Russian legal science. Designated role of the function of indexing and its implementation in the social state. The author applies structural-functional and analytical method of scientific knowledge. An analysis of the state function’s and their classification, the author has been formulated the concept of “functions of the social state”. The author found that the earlier jurisprudence does not consider the function of indexing in the state function’s. Consider the function of indexing, its objective characteristics that distinguish it from other state functions. In the sphere of public life function of indexing refers to social and economic functions of the state, as aimed at meeting to the social needs of the people. The opinion of the author that the function of indexing fully reflects the nature of the welfare state.

Keywords: state, index-linking, the welfare state, the social functions, the theory state, function of the state.

DOI: 10.12737/17235

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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: fin@izak.ru

Such phenomena as forgery of money and counterfeiting (fake cash letters), which invariably caused harm to monetary system are considered from the standpoint of financial law science. Corruption and money counterfeiting always had destructive impact on monetary circulation. However this article shows that corruption and counterfeiting of money are fundamentally different legal phenomena. The author pointed out that corruption money initially served as one of the main sources of public finance, and in this sense, didn’t abuse the right to issue the money and therefore didn’t require counter measures. On the contrary money counterfeiting as a particular form of corruption money always was a socially dangerous and criminal act, which required the most severe responsibility. This article presents the history of the emergence and development of forgery of banknotes and counterfeiting, both in Russia and abroad, a distinction between those two legal phenomena are made and a variety of ways to deal with them in different historical periods are presented. Currently, in the Russian Federation counterfeiting is defined as a crime in the sphere of economic activity for which the criminal liability is provided. The author analyzes the crime components in this area.

Keywords: bank notes, currency, monetary system, monetary circulation, banknotes, money, counterfeiting, securities, forgery of money.

DOI: 10.12737/17236

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doctor of legal sciences, professor

Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation
76, Prospekt Vernadskogo, Moscow, Russia, 119454
E-mail: kaifp@mgimo.ru

Tax control is an important institution of the tax law. It is difficult to imagine a country without taxes, and the tax system without verifying the correctness of their calculation and payment. However, at the same time the various components of the tax control are a potential source of discontent and disputes. Officials of the Russian tax authorities complain about the lack of authority, and taxpayers regularly use the concept of “violation of the material terms of the procedure of consideration of materials of tax audit”. In this regard, unconditional interest foreign experience, not only “regulars” comparative legal studies, but small countries, including our closest neighbors, such as Georgia. The legal basis of tax control is represented by the Georgia tax code and the orders of the Ministry of Finance. In the given article an attempt to consider legal norms, with emphasis on individual characteristics and comparisons the provisions of the tax laws of other countries and territories is made.

Keywords: Georgia, Abkhazia, tax legislation, tax control, customs control, current control, tax audit.

DOI: 10.12737/17237

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doctor of legal sciences, professor

The National Research University “Higher School of Economics”
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: asshatalov@rambler.ru

Procedural mechanism of realization of the criminal proceeding in regard to persons falling under the particular order of production on criminal cases, provides for as component part and simultaneously method of providing of their inviolability the order of laying an action and bringing in of these persons complicated as compared to ordinary, as defendants on criminal cases. On this basis, the attempt of complex analysis of the most difficult and litigions questions, touching the criminal proceeding of persons for that he is initially intended, is undertaken in a publication. Authorial vision of possibilities of their decision is expounded in her, on a background a corresponding legal and theoretical ground. Complicating the general order of criminal trial, through introduction of additional duties and prohibitions for persons accountable for motion and end of production in criminal business, positions of the Russian Federation come forward, in opinion of author, as the extended judicial guarantees of inviolability of certain circle of the special subjects executing socially-meaningful functions. Not increasing the volume of their inviolability, they diminish possibility of her limitation, reducing, thus, the danger of realization of the groundless criminal proceeding. In spite of the fact that the list of the special subjects to the law is driven by exhaustive character, in part touching denotation of limits of their judicial immunity, the norms of chapter 52 of the Criminal Procedure Code of the Russian Federation (CPC) carry blanket character, as his actual maintenance is different. An author considers on this basis, that accomplishing judicial actions and accepting statutory decisions a court, public prosecutor, leader of investigative agency, investigator, must take into account not only envisaged by CPC feature of production on criminal cases in regard to the separate categories of persons but also position of normative legal acts exposing their legal status, volume of plenary powers and limits of action of judicial immunity in a that kind, as they are envisaged in a branch legislation. Self legislation on that score, must consistently change in the river-bed of recommendations of International organization of the Council of Europe “Group of States Against Corruption” (GRECO) speaking out in the report for reduction in him categories of persons to that the special procedure of bringing of them spreads to criminal responsibility, and also for simplification of such procedure.

Keywords: GRECO, persons falling under the particular order of production on criminal cases, bodily security, particular order of production on criminal cases, legal immunity, special subjects.

DOI: 10.12737/17238

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candidate 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: semykola@yandex.ru

The article deals with the legislative and doctrinal precondition of criminal liability of legal persons, which are accumulated a concept formed the basis of the judicial reform of 1864. The author studies the practice the first phase of the introduction in to the Russian criminal procedure enforcement of the measures applicable to legal persons for acts committed during preliminary investigation of crimes. In this context, the article lays emphasis on the norms of the Charter of criminal proceedings of 1864, which contain the procedural peculiarities of the application of such a measures to legal entities as closure, as well as monitors the judicial practice on the criminal liability of legal persons. The article gives a positive assessment of the approach of the legislator to the possibility of the implementation of remedial measures in criminal proceedings on such corruption crimes as crimes against property and income of the treasury. Given these positions, the author comes to the conclusion of the possibility of application of measures of criminal procedure liability of legal persons under preliminary investigation in criminal cases of crimes that infringe on budget forming industries.

Keywords: criminal procedure law, liability of legal persons, special proceedings, procedural measures, closure of legal persons, fine, property, treasury, personal responsibility.

DOI: 10.12737/17239

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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: ecology1@izak.ru

This article is devoted to the theoretical study of the legal status of a person, which is one of the most important subjects, and at the same time, the object of environmental legal relationships, is central to the system of fundamental environmental values. The author discusses the features of a person’s status in the theory of environmental law, the problems of legislative fastening and implementation of its main environmental rights and responsibilities. In particular, studies the scientific debate on the inclusion of a person in the list of objects of environmental protection, the role of the right to limit the intensive development of human nature, the incarnation of the right to human environmental concerns, on the criteria of a favorable environment. The article also analyzes the issues of the exercise of human rights and environmental responsibilities as a subject of legal relations, the issues of the implementation of their rights “of general nature” of his participation in the environmental legal relationship as a “special” subject.

Keywords: environmental legal relations, environmental rights, environmental obligations, objects of environmental protection.

DOI: 10.12737/17240

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E. E. Rafalyuk, candidate of legal sciences
The Court of the Eurasian Economic Union
5, Kirova st., Minsk, Belarus, 220006
E-mail: rafaliuk_e@mail.ru

M. V. Zaloilo, candidate 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: theory3@izak.ru

N. V. Vlasova
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: natasha.vlasova@rambler.ru

The article is devoted to the comparative analysis of the concept, types and forms of Eurasian and Latin-American integration associations. On the authors’ mind the integration association is the group of states united on the basis of an international treaty to achieve the integration goals. It is proposed to distinguish between the integration associations of the coordination and supranational types. According to the identified features of each of the indicated types of integration associations the authors conclude that the Organization of American States is the union of the coordination type, the MERCOSUR is in transition from coordination to supranational integration association, in the Andean Community the supranational model is implemented, and the Eurasian Economic Union tends to the supranational association. It is noted that integration associations can be also classified depending on the different forms of economic integration (free trade area, customs union, common market, economic union, etc.). The main forms of the Latin-American economic integration are free trade area and customs union, while the common market is still developing. The forms of the Eurasian economic integration are the customs union, the common economic space, forming common market. A trend of formation of new forms and types of inter-state integration associations and cooperation between them, particularly in the form of a mega-association (Union of South American Nations) is revealed. The ways of further development of the integration associations in Latin America and Eurasia are marked.

Keywords: integration, coordination association, supranational association, customs union, common market, free trade area, economic union, common economic space, the Organization of American States, the MERCOSUR, the Andean Community, the Carribean Community, Union of South American Nations, Free Trade Area For Americas, the Eurasian Economic Union.

DOI: 10.12737/17241

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