Contents of issue # 3/2017

V. V. Lazarev, doctor of legal sciences, professor
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
22/24, Bolshoy Kharitonievskiy lane, Moscow, Russia, 107078
E-mail: Lazarev@izak.ru

T. E. Shubert, 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: Shtefania2014@gmail.com

The article addresses the role of judicial practice in legislative activity and analyzes the problems of identifying legal gaps and contradictions in current legislation. The article highlights that determining the place and the role of judicial practice in modern legislation procedure is a serious problem the solution to which will influence its development. The role of judicial practice in the process of law making rises when the laws hold general provisions or when the law itself is missing. According to the authors, the right of legal initiative could be determined as an ability to draft bills, which have to be examined by legislative organs, which is guaranteed by the government and is equal for all. The article stresses out the importance of specifying the terms “legal initiative of the Constitutional Court of the Russian Federation and of the Supreme Court of the Russian Federation of questions that are under their jurisdiction”. The article deems it necessary to take into account the existing judicial practice when considering legal bills.

Keywords: judicial practice, legal gaps, the right of legislative initiative.

DOI: 10.12737/24844

  Full text in Russian

candidate of legal sciences, associate professor
Volgograd State University
100, Universitetsky ave., Volgograd, Russia, 400062
E-mail: juliagavr@yandex.ru

This article gives independent and comprehensive consideration of the problem of legal meaningmaking, allowing not only to differentiate between the terms interpretation and concretization of law, but to analyze these concepts from the point of view of their common meaning-making nature and functional correlation. Meaning-making in law can be examined on two operational levels: the fundamentally-cognitive level, where it acts as the most generalizing instrument of solving problems of legal consciousness and the praxeological (pragmatic) level, where meaning making is one of the common, universal mechanisms of any legal activity, and where legality, justice and humanism thought of as a whole, are the key categories. The article outlines the most important functions of meaning-making that develop its theoretically-methodological and practical purpose in the Russian legal system. By using the semantic approach the most profound elements of law are considered to be its sense bearing components

Keywords: the meaning of the law, meaning-making, interpretation of law, concretization of law, semantic approach to law.

DOI: 10.12737/24845

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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, Vernadsky ave., Moscow, Russia, 119454
E-mail: Levakin@yandex.ru

The article examines historical patterns of constitutional morality – a systematized set of moral norms, which are held in fundamental laws (constitutions). The article explored the evolution of morality, giving an overview of moral standards in fundamental laws of secular states and of such provisions in constitutions of Christian, Islamic, communist and traditional legal systems. Historical examples demonstrate the inextricable connection between constitutional provisions and moral norms. The study of the interaction of fundamental norms of law and morality in modern constitutional generalization allowed to find their objectively existing, necessary, constantly repeatable links. The author insists that historical logic has led to essential symbiosis of constitutional and moral norms, correcting the terms and limitations of the implementation of human rights and freedoms. The author arrives at the conclusion that the constitutional morality in a state governed by the rule of law corresponds to equitable (established to the greatest possible extent on the principle of formal equality) provisions, drafted by a legitimate legislative body and employed by an independent court.

Keywords: constitution, law, morality, fundamental laws, state, rights, freedoms, religion, traditions.

DOI: 10.12737/24846

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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: const@izak.ru

The article analyzes the ideas and academic theses influencing the development of the concept of the “Civil Society” in the works of eminent Russian legal experts (jurists) in late XIX — early XX centuries. The author points out that the research of the Russian legal experts of the period under consideration has made a great contribution to social development and has become a foundation for the ideas of the “Civil society” in Russian legal literature. The article studies the introduction and the use of the category “Civil Society” in academic papers of the period under review. The author considers the meaning of the concept “Civil Society” and proposes the wide and narrow meaning of the wording concerned as introduced in the works of pre-revolutionary authors. The author comes to the conclusion that at the turn of XIX—XX centuries Russian legal experts successfully mastered and developed legal problems which were connected to “Civil Societies” and hold practical meaning for modern legal science.

Keywords: the idea of the “Civil Society” in Russia, Russian legal tradition, Russian philosophical and legal thought, “Civil Society”, pre-revolutionary authors.

DOI: 10.12737/24847

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doctor of legal sciences, professor
Plekhanov Russian University of Economics
36, Stremyany lane, Moscow, Russia, 117997
E-mail: bogdanov.de@yandex.ru

The article deals with the categories of freedom and arbitrariness as the elements of contractual regulation of public relations. The author arrives at the conclusion that freedom and arbitrariness are two correlating and mutually conditioning forms of behavior. They complement and interact with each other. Freedom can be exercised arbitrarily and arbitrariness represents freedom therefore in this case there is no contradiction between freedom and arbitrariness. However, arbitrariness when taken to the extreme can be: unrestrained, contrary to the law and to the principles of good faith, justice, rationality and consequently violating the freedom of others. In that case the freedom of one person comes into collision with the arbitrariness of the other person, hence such arbitrariness shall be restricted. Subjects of civil law are free to act as they wish in particular when exercising their rights. Subjective rights grant their holders certain freedoms which will be enjoyed through arbitrariness. It is known that the right to choose the method of performance in alternative contractual obligations is given to the creditor or to a third party, however if they don’t make a choice within the established time period, the debtor is free to choose the method of performance that he wishes, that is arbitrarily. In these cases, arbitrariness represents freedom that expresses itself externally by arbitrariness.

Keywords: freedom, arbitrariness, behaviour, contract, conditional deal, stability of civil circulation.

DOI: 10.12737/24848

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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: oleg_gutnikov@mail.ru

The articles deals with the issues of the legal nature of corporate rights. The author criticises the points of view that have been formed in legal science and in the legislation, according to which corporate rights are identified with the right to participate in corporate organizations, and is divided into two categories of rights: corporate and contractual. According to the article a separate private management nature of corporate rights has been formed. The article concludes that corporate rights have a unified governance nature, and the founders (participants) of any legal entity possess these rights. The article evaluates on the legal powers that construe the right of corporate governance. Each legal power of the corporate right under review can consist of sub-powers. The actual scope of authority and the nature of the legal power depends on the legal form and the type of the entity and also on the provisions of its founding documents. This means that it is possible to indicate several variations of corporate rights, however all of them have the same governing nature.

Keywords: corporate relations, corporate rights, the right of corporate governance.

DOI: 10.12737/24849

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

The concept to form a Unified energy fund as proprietary economic and legal unit was first formulated in the 90s of the last century. It was formed in the relation to the system of administration of the fuel and energy complex of the country that was established in the USSR and in relation to the fuel and energy balance that was developed in the USSR. At the very core of the formation of the United energy fund of the Soviet Union and energy funds of other subjects were the fuel and energy balances of different levels and different of degrees of binding powers that were drawn up and approved in accordance with the established procedures. The unified fuel and energy balance plays the key role in the system of fuel and energy balances. In the Russian Federation there is a tendency for the formation of a Single energy fund and similar energy funds of other subjects as organizational and economic structures. These funds are functioning in the form of energy balances, what was drawn up and approved at thr various object and subject levels. Today energy funds are legal institutions at the stage of development that mediate economic relations resulting from preparation, adoption and implementation of fuel and energy balances, of production distribution and consumption of energy resources at different subjective levels: the federal level (United Fuel and Energy Balance), regional levels and business levels.

Keywords: fuel and energy complex, fuel and energy balances, Unified Energy Fund of the Russian Federation, energy funds of the business entities.

DOI: 10.12737/24850

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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: foreign3@izak.ru

The article raises the question of different management models of nonprofit organization. The current Russian legislation contains the wide variety of management models of nonprofit legal entities. The management models determine the structure of legal entity organs and their mutual relations. No doubt, that several factors, such as: the purpose of creation, activities, form of legal entity, — influence its management model. The purposes of legal entity creation and its future activities in turn, determine the choice of the legal entity form. The current Russian legislation does not strictly tie the activities of legal entities to their form. The legislator provides each legal entity with its set of management models. Notwithstanding the legislation determines several management models for nonprofit legal entities, all of them are based on the general fundamental management principles of nonprofit organization. The research results of the legal entities’ inside construction, stipulated by Russian legislation, allow to define two organization management systems. The management system formed by means of the legal persons’ organs subsumes all management models used to manage all types of nonprofit organizations. These are management models studied in the article.

Keywords: legal entities, nonprofit organizations, management model, nonprofit corporation, unitary nonprofit organizations, legal entity organs, two-level management system, executive organ.

DOI: 10.12737/24851

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doctor of legal sciences, professor
Russian State University of Justice
69, Novocheremushkinskaya st., Moscow, Russia, 117418
E-mail: 11081975@list.ru

The article provides an overview of the main directions in which the globalization processes affect the forming and development of the Russian criminal policy and the consequences of their influence. Understanding globalization as an objective, though as a controllable process of forming of mechanisms of tight and free communication between people, nations and states based on the unified rules and procedures, and understanding a criminal policy as a state’s reaction to criminal safety threats, the author consistently analyses metamorphosis of criminal policy in the light of (1) globalization transformation of crime, (2) safety standards’ changes, (3) reduction of possibilities for a state as a social controller and (4) transformation of law as a ground and a form of objectification of the criminal policy. The author concludes that the main vector of the Russian criminal policy dynamic in the context of globalization shifted towards the utmost security of state’s interest while preserving the maximum state’s activeness in forming the international law basis of the criminal policy. Along with that globalization requires innovative national criminal law policy idea, which implementation would allow to create and to put in practice new technological product: criminal law of globalization era.

Keywords: criminal policy, globalization of law, the transformation of crime, political and legal consistent pattern.

DOI: 10.12737/24852

  Full text in Russian

A. S. Mironchik, candidate of legal sciences
The Law Institute of Siberian Federal University
6, Mayerchak st., Krasnoyarsk, Russia, 660075
E-mail: ansmiron@mail.ru

A. A. Borovkov, postgraduate student
The Law Institute of Siberian Federal University
6, Mayerchak st., Krasnoyarsk, Russia, 660075
E-mail: borovkov.aa@yandex.ru

The authors raise the scientific problem of nonfulfillment of contract obligations as a sing of fraud in the sphere of the business activity. The researchers set a goal to investigate some evidences of the objective side of fraudulent activity where the conclusion of civil law contracts are used as a disguise in order to distinguish these criminally liable activities from criminally nonpunishable failure to comply with civil law contracts. The study of the nature of the nonfulfillment of contract obligations as a sing of fraud in the sphere of the business activity is the aim of the article. The authors aim to investigate some features of the objective side of the fraud in the sphere of the business activity where the conclusion of contracts is used as a cover of criminal nonpinishability of nonfulfillment of civil contracts. The methodological basis of the study is constituted by the formal-logical method that allows to identify and analyze features consisting in fraud in the sphere of the business activity, formal-legal method to determine the legal concepts, their attributes, classification through the interpretation of legislation, comparative method implying a comparative analysis of legal norms and practice. The scientific article contains provisions of civil law. The authors conclude that the sign of business fraud is a failure to fulfill or an improper performance of contractual obligations. The authors analyze the criteria to distinguish fraud combined with the deliberate failure to contractual obligations from the civil contract, while noting that particular attention should be paid to the objective side of the offense. Also the authors substantiate the conclusion, that the final stage of business crime is different from the final stage of regular fraud.

Keywords: fraud, business activity, nonfulfillment of contract obligations, improper performance of contractual obligations, the final stage.

DOI: 10.12737/24853

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doctor of legal sciences, associate professor
Southwest State University
94, 50 Let Oktyabrya st., Kursk, Russia, 305040
E-mail: lagutinigor81@mail.ru

This article is dedicated to raising the question of the introduction to the science a new institute of financial law — regional finance, and justification of this concept in the science of law. The paper analyzes the concepts included in the content, such as: territorial, regional, sub-federal level of the Russian Federation and in relation to the municipalities — a local level municipality. The article substantiates the need to set up a separate research area in financial law — regional financial law, which is caused by the need to develop the system of financial law of the Russian Federation. In this article regional financial law is considered in three main values, as a complex (mixed) legal institution consisting of a system of norms, as a branch of science of financial law, which has its own methodological and other features related to the unusual nature of the social relations arising in the field of public finance on regional and local level, and as an academic discipline. Also the work concludes that regional financial law is a branch of science of financial law, oriented on studying the features of the organization and legal regulation of public financial vertical relations in different countries, regardless of their form of government.

Keywords: public finance, financial law, region, regional financial law, subject, science, practice, fiscal federalism.

DOI: 10.12737/24854

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candidate of economic sciences
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

Protected objects are diverse and specific. Among them there are objects, violation or termination of functioning of which will lead to loss of control of the economy of the Russian Federation, constituent entities of the Russian Federation or administrative and territorial units of the constituent entity of the Russian Federation, its unreversable negative change (damage) or a significant reduction in the safety activity of the population; potentially dangerous objects. The content of protected objects regime is determined by its purpose and interrelated with the legal status of the subject. The purpose of the establishment of a special regime is ensuring of the safety of the protected object. The protected objects regime for the relevant objects provided by the various actors in accordance with granted powers in the prescribed manner/ Among such actors are the organs of state security, forces and military units of internal troops, security services and internal affairs bodies, departmental security, private security companies. Regime of the protected object sets in accordance with the specific individual characteristics of the object to be protected and is determined by the provisions of the Federal laws, normative legal acts of the Government of the Russian Federation and other regulatory legal acts. Also the author reviewed the powers of the entities to support the regime of the protected object, including powers to apply administrative actions established by the Administrative Offences Code of the Russian Federation.

Keywords: social security, administrative and legal regime, protected object, the protected objects regime, state protection, police, departmental security service, access mode, secure facility, administrative offense.

DOI: 10.12737/24855

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candidate of legal sciences
Saratov State Law Academy
1, Volskaya st., Saratov, Russia, 410056
E-mail: vabalduev@ssla.ru

The article considers the doctrinal conception of the fixed term employment contract as one of the types of the agreements on labour. The author criticizes existing standards of the Russian labor law, which are limiting the right of parties to review the terms of the labour contract. There also were Identified problems related to the transition from one employment contract to another and the extension of the term of the employment contract in present article. On the basis of the theoretical analysis, judicial and other practices the author shows the cases when it can be necessary to transform the fixed term employment contract into a contract for a certain period. The rules and case-law of foreign countries which allow the extension of the term of the employment contract took an important place in the article. The author has motivated the conclusion that the norms of the Labour Code of the Russian Federation have to include the rules on the extension of the term of the employment agreement without the termination of labor relations. So, the author has developed the draft rules which can help to remedy abovementioned problems, and has recommended clarifying the wording of paragraph 14 of the resolution No. 2 of Plenum of the Supreme Court of the Russian Federation from March 17, 2004 in the interests of justice.

Keywords: employment contract, conditions, fixed-term employment contract, Labour Code of the Russian Federation, case-law, employment, dismissal of an employee.

DOI: 10.12737/24856

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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: social7@izak.ru

The article is devoted to a legal regulation of the educational programs in modern Russia, as well as to new forms of education for the schools of Russia, such as network, distance and on-line education. The author addresses the issue and nature of educational programs, determines the category, tasks and role of the social partners in the educational process, as well as various forms of cooperation with educational organizations. Based on the conceptual framework and norms of the Federal Law No. 273-FZ from December 29, 2012 “On Education in the Russian Federation” the author reveals the problems and benefits of using a particular form of education, analyzes the differences between the above mentioned forms of education. The author comes to the conclusion that it is necessary to develop the application of e-learning and distance educational technologies in the implementation of educational programs, it is necessary to adopt the standards of provision of distance education services, introduction of independent forms of education such as distance education and etc.

Keywords: education law, educational program, distance education, on-line education, network education, licensing of educational activity, modern technology.

DOI: 10.12737/24857

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candidate of legal sciences
Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russian Federation
3, Ankudinovskoe Shosse, Nizhniy Novgorod, Russia, 603144
E-mail: maks4@mail.ru

The article analyzes the new legislative initiative of the Ministry of Internal Affairs of the Russian Federation, offering an alternative to the recently introduced shorter form of inquiry in criminal proceedings of Russia. This analysis is made in the context of the Soviet experience in the criminal process – protocol form of pre-trial preparation of the criminal case. On the basis of statistical reporting and analysis of the normative framework of the inquiry Institute the author shows the actual failure of the brainchild of simplified pre-trial proceedings in cases of minor crimes. The defects of the current simplified pre-trial procedure of the crimes investigation were specified, among which was highlighted the lack of understanding by the legislator of the essence of simplified proceedings. The author mentioned the most negative blemishes such as the obligation of consent of the victim, the formalized deadlines for passing the request for shortened investigation and the existence of norms, even more reducing the period of reduced inquiry. The author formulates proposals on the optimal design of the abbreviated form of the preliminary investigation.

Keywords: investigation, inquiry, abbreviated proceeding.

DOI: 10.12737/24858

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doctor of legal sciences, associate professor
Far Eastern Federal University
8, Sukhanov st., Vladivostok, Russia, 690950
E-mail: gavrilov.vv@dvfu.ru

The article is devoted to identification of key prerequisites and prospects of development of the Arctic legal status, as well as institutional support for the safety sustainable development of the Arctic region. The increasing role and importance of the Arctic in the modern world has challenged the international community in a number of difficult problems such as determination of the content and main directions of cooperation between the Arctic States and other stakeholders in the region. The main task is to determine the optimal parameters of the multilateral management of the Arctic and to improve the mechanism of its effective implementation in accordance with the profound transformation of the Arctic region, defining the need for a comprehensive study of the causes of current changes and to develop sustainable guidelines for development of the Arctic in the new historical conditions. The main attention in the article is paid to the following issues: 1) formation of the list of priority directions of interstate cooperation in the Arctic; 2) localization of the legal and non-legal regulators in this process; 3) combination of the universal, regional and national sources, as well as opportunities for Arctic and non-Arctic actors to address issues of the Arctic agenda; 4) effective use of the potential of the Arctic Council and other regional bodies and organizations to ensure the development the use and preservation of the Arctic.

Keywords: Arctic, legal regulation, Arctic Council.

DOI: 10.12737/24859

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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: natalia.gaidaenko@sts-law.ru

Broad use of mediation to resolve commercial disputes are constrained by the fact that the agreement reached by the parties as a result of this procedure is impossible to realize in a simplified manner abroad. Working group II of the UN Commission on international trade law (UNCITRAL) since 2015 considers the possibility and feasibility of developing an international instrument on the enforceability of agreements reached as a result of international commercial mediation procedure. The author of present article reflects about point issues, approximate contours of the future document and the prospects for the elaboration of a convention like the New York Convention on the reciprocal recognition and enforcement of foreign arbitral awards.

Keywords: Working group II of UNCITRAL, international commercial mediation procedure, mediation, execution.

DOI: 10.12737/24860

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