V. V. LAZAREV
head of the Department of implementation of court decisions in the Russian legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor, honored scientist of the Russian Federation
22/24, Bolshoy Kharitonievsky lane, Moscow, Russia, 107078
From the position of a supporter of integrative law, the author of the article justifies four theses. The first thesis is that the full-scale integration of law materializes only in court decisions. The second thesis is that different approaches to law are most clearly seen through the prism of judicial decisions. The third one is that judicial decisions have a sovereign character in the rule of law principle due to their rich content. The last thesis deals with the comparative studies indication that judicial proceedings of the Anglo-Saxon legal family are the most effective in judicial proceedings, although it would be erroneous to pursue this essence in other families.
The argumentation is conducted through the lens of general scientific and private methodology, the aspect of general legal and industrial theory, at the doctrinal level, at the level of legislation and judicial practice. The initial provisions are the following: judicial decisions (whoever acted as a court) were the first legitimate manifestation of law, its first form, the basis for doctrinal interpretation of law and the basis for the actual normative (legislative) activity of the state. The historical primacy of judicial decisions in the legal order of public life has been recognized and further developed in the sociological direction and legal realism; and judicial decisions have not lost their significance either as an object of theoretical research or as tools for improving a mechanism of legal regulation.
The court is one of the subjects of the communicative function in legal order. Through its powers legal education, execution of law and law enforcement are developed. Hence one can understand scientists who consider justice to be involved in both natural and positive laws. They see in this matter a criterion for any decision of any instance; see its presence in every law as an idea and as a non-legal precondition for legislative thought; consider justice as an intermediary between divine and human laws and between reason and justice.
The author turns to the positions of domestic and foreign scientists and cites the materials of judicial practice. The main goal is to narrate the incarnation in the judicial decision all these recognized by law and supported as a right by authorised actors in the conditions of the given place and time, which an integral legal doctrine considers as right.
Keywords: law enforcement, interpretation of law, realism, normativism, constitutional control, legal doctrine, integration, methodology of judicial interpretation, judicial activism, sovereignization of the judiciary, body of constitutional control, legal positivism, realistic theory of interpretation.
V. G. GRAFSKY
head of the Department of history of state, law and political doctrines of the Institute of State and Law of the Russian Academy of Sciences, doctor of legal sciences, professor
10, Znamenka st., Moscow, Russia, 119019
The article is devoted to the review of a few initiated and have not yet completed variants of building an integral theory of legal thinking. It states author’s improved basic understanding of principal attributes and directions of a new cohesive construing of an integrated legal design, as well as its further theoretical and discursive, methodological and practical-analytical development and its possible usage. This concept collates modern idea on the right and its mission, where the vital role, according to the author, belongs to rules – requirements of the rule of law, justice, equality, freedom, rationality, axiological hierarchical techniques and tools for shared and personal benefits by all means of responsible practical use while guaranteeing adherence of lawful justice.
The characteristics of legal communication and analysis of the rights and duties of participants assert that legal thinking is limited not just to the widely accepted interconnection of three or more attributes as liberty, equality and justice, but also represents the embodiment of requirements to abide certain responsible freedom, responsible equality and responsible legal justice. In this case responsibility means legitimate and fair general binding, what traditionally provided by persuasion or coercion in different forms and manifestations.
The lack of a proper and compulsory liability deprives any legal communication of its desirable and necessary effectiveness (contractual or any other) and makes meaningless any legal thinking eligible for adequateness.
Keywords: integral and integrative jurisprudence, justice, equality, freedom, legality, rationality, consent, hierarchy, general and personal benefit.
V. M. SHAFIROV
chief research fellow of the Department of theory and history of law and the judiciary, professor at the Department of theory of law, state and judiciary of the Russian State University of Justice, doctor of legal sciences, professor, honored worker of higher school of the Russian Federation
69, Novocheremushkinskaya st., Moscow, Russia, 117418
In the article integration of knowledge is considered as a scientific pattern. The integrative understanding of legal knowledge has not only theoretical but also a statutory basis. They are formulated and stated by the Russian Constitution. Constitutional model of understanding has a distinct integrative naturally-positive character. Unfortunately, this fact has not found necessary reflection in the science yet. Therefore, the aim of this study is to indicate the importance and priorities of knowledge synthesis in the field of law.
Exclusive positivistic understanding of law is opposed to integrative one. Exclusive positivism shadows primary benefits of the positive theory. It has formed the image of strict, formal, pure external, restricting freedom, indispensably–compulsory law. The role of personality is downgraded there. For this reason there is an aim set to point out significant discrepancies with exclusive positivism. Therefore the following issues are brought to light and analysed: essence of law, a role of a state, its content and characteristic, criterion of knowledge integration, law as a freedom expression, legal equality and inequality and legal principles. These enunciated ideas provide an opportunity to form a new humanistic conception of law.
The comparative analysis is based on the human-centric approach to law, as well as comprehensive, historical, logical, comparative legal and other methods of scientific knowledge.
The conclusion states that the future belongs to integrative understanding of law.
Keywords: law, understanding of law, constitutional understanding of law, integrative approach to law, exclusive positivism.
A. I. SIDORENKO, Yu. E. IBRAGIMOVA
I. V. LEVAKIN
professor at the Department of legal support of management of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation, professor at the Department of constitutional law of the Russian Academy of National Economy and Public Administration under the President of the Russian Federation, doctor of legal sciences, professor
76, Vernadsky ave., Moscow, Russia, 119454
A fuller identification of regular links of the “economic constitutions” standards and scientific and technological progress is necessary for the focused improvement of modern states’ basic laws. The study of the development of “economic constitutions” is required for a more adequate constitutionalisation of the society’s technological achievements, including those capable to protect human rights and freedom from new challenges and threats.
The identification of regular links between the norms of “economic constitutions” and waves of innovation is the basic aim of this research. It is important to get the image of the future tendency of “economic constitutions” considering the potential of innovative economy of XXI century.
The presented cross-disciplinary research offers a fundamentally new classification criterion of “economic constitutions” for legal science – economic structure. A consecutive historic and theoretical research of “economic constitutions” is conducted in conjunction with scientific and technological progress; the potential of “economic constitutions” modernization is revealed.
Comprehensive use of historical, logical, systematic, dogmatic, comparative and other methods of scientific knowledge allowed determining trends and predicting a further tendency of “economic constitution” development in conjunction with the dominant technologies.
The summary of the interrelated progress of “economic constitutions” and waves of innovation are made. As a criterion to classify the generations of “economic constitutions” here is proposed a fundamentally new criterion for jurisprudence – social and economic phenomenon “waves of innovation” reflecting the consistent technical level of its productions. The revolutionary significance of information technologies in the modern world is fully understood by the author. Yet the article is based on the analysis of historical and modern texts of constitutions, which now set rather conservative approach to the “information revolution”. The results of research demonstrate that the synthesis of achievements of modern science and the technologies (nuclear power engineering, global internet, biotechnologies etc.) are gradually penetrating into the norms of “economic constitutions” and require an adequate constitutionalisation.
Keywords: constitution, economy, economic constitution, techno-economic paradigm, progress.
O. V. MAKAROVA
leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
The issue of public control has a high research capacity and therefore it often becomes the subject of the scientific studies. In addition the issue of public compliance monitoring of the information openness about the activity of public authorities has been poorly studied. Meanwhile one of the main responsibilities of public control is the ensuring of the information openness about the activity of public authorities. The article concerns the issue of the openness of public authorities in accordance with the principle, that ensuring of the information openness is primarily the question of trust of the society and its citizens to the authorities. It is noticed, that the openness of public authorities allows to create an environment of open dialogue with citizens and therefore to ensure the high level of citizen’s trust. It attracts wide attention to the issues of government administration and engages citizens into the process of cooperative search for solutions of a problem.
The author’s research objective is an attempt to analyze and assess the state and the perspectives of development of the public compliance monitoring of the openness of public authorities. Furthermore, possibilities in the development of the mechanisms of the public compliance and interaction modes between public authorities and the citizens are reviewed, and also the practical recommendations of its further improvement are given.
A methodological framework for this research is a comprehensive set of measures of scientific knowledge; among them the leading position belongs to a dialectical method. In the article, broad philosophical, general scientific and specific legal research methods are used. Special attention is given to comparative and systematic research methods.
It is mentioned that informational transparency of activity of public authorities contributes to the implementation of mechanisms of civil society’s and its institutes’ participation in public control. In this context, it is necessary to continue the development of citizens’ and organizations’ legal options of access to information about activity of public authorities, and also to create conditions of informational transparency and accessibility of information about activity of public authorities.
Keywords: public control, public authority, openness, information, activity, society, administration, government, state, legislation.
V. K. ANDREEV
head of the Department of civil law and corporate studies of the Russian State University of Justice, professor at the Department of business and corporate law of the Kutafin Moscow State Law University, doctor of legal sciences, professor, honored scientist of the Russian Federation
69, Novocheremushkinskaya st., Moscow, Russia, 117418
Corporate law is currently one of the most rapidly developing spheres of law, however, the issue of the place of corporate law in the legal system remains controversial in the scientific literature, and in this connection other issues, in particular, about the legal status of the bodies of the legal entity, arise.
The purpose of this article is to identify on the basis of a system analysis of modern civil legislation the place of corporate law in the system of branches of law, as well as the legal status of the corporation's bodies.
The research was carried out using the methods of analysis and synthesis, as well as a systematic method of investigating civil legislation.
The article proves that the position of authors considering legislation on legal entities as a subbranch of civil legislation regulating corporate relations contradicts the fundamental norms of the Civil Code of the Russian Federation and the legislation on companies.
The bodies of the corporation have competence, the constituent parts of which are the powers, i.e. they are subjects of law. The bodies of the corporation acting within the limits of their powers acquire civil rights and assume the duties of the corresponding legal entity. The bodies of the corporation are subjects of law that make decisions having civil and legal consequences. To apply corporate management to unitary organizations is not possible by virtue of legislative rules.
Keywords: corporation, corporate management, body of a legal entity, responsibility of bodies of a legal entity, competence of bodies of a legal entity, defense-industrial complex.
V. Yu. BUZANOV
research fellow of the Department of civil law of the Lomonosov Moscow State University
1, Leninskie Gory, Moscow, Russia, 119991
Prior use is one of the institutions of modern patent law applied in practice because it solves the problem of finding a fair balance of interests between patent holders and independent creators of patented technical solutions (inventions). The institute of prior use occupies a special place in the system of patent rights protection, since it allows one of the few limitations of the exclusive rights of the patent holder to an invention. The main purpose of this legal institution is to encourage parallel technical creativity while observing certain conditions for protecting the interests of the patent holder for an identical technical solution. Accordingly, the legislator establishes strict conditions for recognizing the rights of a prior user, taking into account possible practical conflicts of interest of parties — participants of civil commerce, whose subject matter is, in particular, products created with using their invention.
The purpose of the article is a comprehensive study of the institution of prior use in the context of the current Russian legislation and law enforcement practice. Among the priority issues of the study are the following: the legal nature of the right to prior use, the conditions for its emergence, the range of possible subjects — the holders of this right (including taking into account the nature of their activities), the limitations (limits) of the right to prior use.
Methods of research: historical, comparative-legal, formal-legal.
Brief conclusions: 1) Prior use should have a commercial nature (one of the conditions for the emergence of the relevant law); 2) the right of prior use should be limited not only in scope, but also in the ways of using the product protected by the patent; 3) the right to prior use ceases with the termination of the entrepreneurial activity of a prior user; 4) he right to prior use is an encumbrance and such legal nature allows endow it with certain properties of classical real burden - in particular, following the basic (exclusive) right.
Keywords: patent law, limitations of patent rights, prior use, prior user, subjects of prior use, conditions and scope of prior use, legal capabilities of a prior user, termination of prior use.
N. V. OMELYOKHINA
head of the Department of administrative and financial law of the Novosibirsk National Research State University
2, Pirogov st., Novosibirsk, Russia, 630090
Considering the budget system of the state as a complex phenomenon of financial and legal reality, using traditional and macrosystem approaches to definition of its essence, the author aims to determine the place of the budgetary system of the Russian Federation in the system of financial security institutions (elements) of the state, using general scientific and special legal methods of cognition to construct complex multi-level mechanism of direct and reverse connections between them.
Analyzing the system-forming properties of the budgetary system of the state as a totality of funds of monetary resources in public ownership, the conclusion on including it in the institute of financial security facilities of the state is substantiated. This is an instrument of communication with private funds of monetary resources, which in turn act as both a source and a consumer of monetary resources of public funds, thereby making the budget system a powerful redistributive mechanism that ensures the implementation of public administration functions. Considering the budgetary system of the state in an institutional aspect as a redistributive mechanism ensuring the implementation of public administration functions, the last is proposed to define as a means of ensuring financial security of the state, to be included in the structure of this institution as an instrument for ensuring financial stability of the state, a guarantor of protection of state sovereignty. In turn, public authorities and local self-government bodies, structured according to the levels of the budget system of the Russian Federation, which exercise powers to form, distribution and use of centralized monetary resources of funds public legal entities (budget funds), are proposed to include in the institution of subjects that provide financial security for the state.
Keywords: financial security, budget system, budget, financial sustainability, budgetary sustainability, budgetary efficiency.
O. O. ZHURAVLEVA
leading research fellow of the Department of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
The correct choice of legal regulators and their effectiveness predetermine the success of state strategies, including integration projects. The task is to determine the future key parameters of the Russian tax system, which should allow to ensure economic and technological development and also social stability. Effective legal regulators play a significant role in the modernization of the Russian tax system. The principles of tax law are a special kind of them. They set the general vector of the development of the national model of the tax system and determine possible ways of its transformation and design. In this regard, the relevance of research on the effectiveness of the principles of tax law, as specific legal regulators, is growing.
The research objective is to determine the perspective directions of studies on the effectiveness of the principles of tax law. In the process of achieving it, the following tasks were accomplished: assessment of the state of scientific research on the effectiveness of the principles of tax law; research of doctrinal approaches to the definition of efficiency in law and in tax law, their comparison; identify of existing problems and suggesting possible ways to resolve them.
General scientific and non-scientific methods were used by the research. The methods of analysis and synthesis, historical, formal-logical were allowed to reveal the dynamics of scientific interest in the effectiveness of the principles of tax law and the existing problems.
It was concluded that the nature of the norms-principles does not allow them to extend existing approaches to determining the effectiveness of other norms and institutions. It is recommended to abandon the use of the term effectiveness of the principles of tax law and use a more appropriate and correct term for the effectiveness of the implementation of the principles of tax law. In the future, we can expect the emergence of studies focused on the review of the effectiveness of individual institutions of tax law (including, prohibition, restrictions, sanctions, etc.). Possible is the development of appropriate methods for their evaluation, since similar issues have been developed in law theory and in other legal branches.
Keywords: tax, legal system, efficiency of law, efficiency of tax legal principles, efficiency of tax principle’s realization, purpose of tax law principles.
N. Yu. SKRIPCHENKO
professor at the Department of criminal law and procedure of the Lomonosov Northern (Arctic) Federal University, doctor of legal sciences, associate professor
17, Severnaya Dvina emb., Arkhangelsk, Russia, 163002
2016's legislative fixation of a new type of exemption from criminal liability in connection with the appointment of a court fine (Article 762 of the Criminal Code of the Russian Federation) put a number of issues arising from the legality of the legislation before the law enforcer. Identify the problems of applying the provision on exemption from criminal responsibility with the appointment of a court fine on the basis of the analysis of judicial practice (Article 762 of the Criminal Code of the Russian Federation) and to make proposals on their solution.
The methodological framework is a set of methods of scientific knowledge. The general scientific (analysis and synthesis, dialectics) and private scientific methods of research (system-structural, formal-legal) were used.
The conducted legal analysis showed that the legislator specified only the conditions for exemption from criminal liability without determining the grounds for applying Art. 762 of the Criminal Code of the Russian Federation. As a result, courts are limited to citing the relevant provisions of the Criminal Code and the Code of Criminal Procedure of the Russian Federation, which describe the conditions for exemption from criminal liability described in the law, considering that their aggregate is sufficient for termination of the criminal case with the appointment of a court fine, which hardly corresponds to the will of the legislator. Indicating only the maximum amount of the court fine (Article 1045 of the Criminal Code of the Russian Federation), the legislator stated the question of its minimum amount to the law enforcement officer . The court may proceed from the minimum established amount of the fine (Part 2, Article 46 of the Criminal Code of the Russian Federation), but only if it is directly stated in the law. In order to ensure uniformity in the practice of appointing a court fine in the case of two or more crimes committed by the perpetrators, it is necessary to fix the rules for the appointment of a court fine in the aggregate of crimes. In conclusion, the paper states that the exemption from criminal responsibility in connection with the appointment of a court fine is permissible only for those compositions for which the guilty person can take measures to smooth out the harm caused. By the same composition, where the perpetrator cannot objectively restore the violated interests of the individual, society and the state, the decision to impose a judicial penalty can’t be taken, since there is no strictly formal condition - compensation for damages or smoothing out the harm done otherwise.
Keywords: excuse, other measures of a criminal-law nature, court fine, compensation damage.
S. V. ANOSHCHENKOVA
associate professor at the Ogarеv Mordovia State University, candidate of legal sciences, associate professor
68, Bolshevistskaya st., Saransk, Russia, 430000
Progressive improvement of the Russian criminal law goes in a number of directions, the most relevant of which are the differentiation of criminal responsibility and humanization of the criminal and legal measures for person who committed the crime. One of the novels that embodied the essence of these directions are the regulations which let to replace the criminal responsibility by the judicial penalty (art. 762, 1044 and 1045 of the Criminal Code).
The aim of the present work is of complex character, because it combines theory and practice on infliction of the judicial penalty at the phase of the emerging doctrinal understanding and initial experience of litigation. Achievement of objectives has contributed to the following tasks: definition of the legal nature of the judicial penalty; the development of the position regarding the determination of the grounds and conditions of exemption from criminal responsibility with the infliction of the judicial penalty; to offer the doctrinal definitions of judicial penalty; the study of the nature and amount of compensation for crime damage; to determine the judicial penalty amount, including multiple offenses, terms of payment of the judicial penalty; the possibility of exemption from criminal responsibility with the the infliction of the judicial penalty for the crime, the harm from which is intangible in nature.
Research instrumentation the study were philosophical, dogmatic, sociological methods.
As the result of the study of the theory and practice the author came to conclusions about the extension of restorative and compensatory functions of criminal law, the special and specific nature of the replace of the criminal responsibility by the infliction of the judicial penalty. Also there is the author's vision of the solution to some of the practical issues of a judicial penalty.
Keywords: measures of criminal-legal nature, exemption from criminal liability, judicial penalty, restitution, reparation, person has committed a crime for the first time, categories of crime, improve the criminal law.
T. I. EGOROVA
senior lecturer at the Department of criminal law of the Academy of the Federal Penal Service of the Russian Federation, candidate of legal sciences
1, Sennaya st., Ryazan, Russia, 390000
In the criminal law the clarity of the legal provisions is of particular importance. Evident limited textual space obliges the law to use the most precise terms, allowing to express the will of the legislator. The rapid development of forms and methods of illegal drug trafficking determines the importance of expanding the scope of criminal law regulation.
The aim of this research is to understand the limits of the use by the legislator of related terminological categories in a process of settlement of various drug trafficking forms. Objectives of the study: to study the modern provisions of the Criminal Code of the Russian Federation on a criminal liability for illegal drug trafficking, to study the nature of the same terms with the different legal content, enshrined in different legal norms and different definitions with the same terms and their explanation in the enforcement process.
In the framework of present article the criminal law was discussed from a dialectical standpoint of the formal-logical analysis of criminal law regulations implementing the signs of crimes related to drug trafficking. Also the system-structural method for the study of public relations and related law enforcement practices was used; this method allowed to assess the compliance of the semantic meaning of their semantic evaluation in the classification of crimes.
The author reveals the special dynamics of relations in the sphere of drug trafficking, which creates significant difficulties in the process of lawmaking and enforcement. The assumption is made about the possibility of applying the precepts of law by analogy, which should be implemented not only the criminal law, but its protective purpose. There were analyzed the trends of the criminal law provisions that have implicit properties that determine the ability of various acts that are equally expressed in reality, but have different content. The author has investigated the trend of differentiation enforcer signs of various crimes based on objective and subjective signs not expressly named by the legislator. Special attention is paid to the possibility of understanding the new criminal legal terms: analogues of narcotic drugs and psychotropic substances, new potentially dangerous psychoactive substances.
Keywords: analogy of the law, illicit drug trafficking, illegal purchase, illegal cultivation, implicitness, analogues of narcotic drugs and psychotropic substances, new potentially dangerous psychoactive substances.
A. N. GAZETOV
head of the Department of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of economic sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
According to the results of a study of the state procurement systems of 77 countries conducted by the World Bank in 2016, the information management system of procurement in the Russian Federation received the highest rating. The increase in state contracts is an amount roughly equal to the GDP of Slovenia anв Ukraine, and more than the GDP of the Republic of Belarus in 1.6 times. The size of the Russian economy and the volume of purchases are objectively complicate the anti-corruption measures and ensuring of the fair competition.
In recent years the positive change can be seen: further reduction of prices on the auction results, budget savings, the growth of the number of cases of administrative offenses for violations to the contract system. However, the work of the state contract system can be deemed as effective. The main violations are artificial restrictions of competition that allows you to inflate the cost of goods, works and services, and forming thereby the economic conditions for corruption. It is also noted the exclusion of funds for realization of the state contracts, out of the possibility for audit to check their use.
The study is based on general scientific dialectical method of cognition, including the study of legal acts on anti-corruption in the public contract system and related common research methods. The widespread use of logical methods allowed giving practical recommendations for achieving the objectives of the study.
According to the author, it is necessary to define different types of the government contracts and include estimates as an integral part of the state contract. Changes to tax legislation must provide for the calculation and payment of income taxes and value-added on state contracts separately from revenues on other grounds by the head contractor and its subcontractors who produce at least 70% of the volume of works (services). These measures will improve the information base of financial and tax control to enhance the effectiveness of anti-money laundering and anti-corruption in the state contract system.
Keywords: anti-corruption, public contract system of Russia, taxation, financial control.
V. G. BAYEV, V. V. KRAMSKOY
V. G. Bayev, head of the Department of labor and business law of the Law Institute of the Tambov State Technical University, doctor of legal sciences, professor
106, Sovetskaya st., Tambov, Russia, 392000
V. V. Kramskoy, associate professor at the Department of civil law and procedure of the Law Institute of the Tambov State Technical University, candidate of legal sciences
106, Sovetskaya st., Tambov, Russia, 392000
The authors analyze the book of the famous economist of the Oxford University Paul Collier devoted to migration — perhaps the most topical problem of the day. But the authors consider it through the prism of law, as a peer-reviewed study does not apply only to the category of economic, political or legal science. The thoughtful humanitarian reader will find scattered grains of rationality in the scientific fields with respect to his interests: whether applied research of national economy in the global and local scales, or surveys of historical bias, the ethnographic orientation, legal and cultural content.
The book is multifaceted as well as comprehensive migration itself. In the arguments about the “migration of law”, the authors understand the movement of legal ideas from one legal community to another through cooperation of their subjects. In their role can act the public legal entities as well as private persons of some legal affiliation with active civic position, who sometimes do not have the right of legislative initiative. A significant difference between “migration of law” and legal implementation takes place at the border, where the legal norm is a portable component of the legal implementation, and the legal idea is an elementary particle of the “migration of law”. With regard to the semantic content of the notion “migration of law” you can mark its broader character in comparison with legal implementation; that is why the legal implementation is a part of the “migration of law”. Moreover, the authors believe that it is possible to talk about the fact that the legal implementation is one of the possible scenarios of the development of the “migration of law” program in the area, one of its final stages. Not every legal idea, ultimately, is clothed in the form of legal norms.
Keywords: migration, legal idea, the implementation, understanding of law, legal identity.
L. K. TERESHCHENKO, O. E. STARODUBOVA
M. V. PONOMAREV