Contents of issue # 7/2018

chief research fellow of the Institute of State and Law of the Russian Academy of Sciences, doctor of legal sciences, professor, honored scientist of the Russian Federation, honored lawyer of the Russian Federation
10, Znamenka st., Moscow, Russia, 119019
E-mail: vechirkin@yandex.ru

Article on the background of the global process of constitutional development (socio-economic vector, dominant after World War II) explains the basic socio economic provisions of the Russian Constitution of 1993, its dignity and the absence of some of the principal socio-economic situation, which separately present in some new foreign constitutions (in any other Constitution there is no complete set of such provisions, which is in the Constitution of Russia). The process of socio-economic paradigm building of the modern Constitution is analyzed. The author defines the paradigm-reality for a single Constitution or a group of similar constitutions as an interconnected unity of the basic socio-economic norms and legal institutions that characterize the main socio-economic aspects of the essence, content and related aspects of the form of the Constitution (a group of similar constitutions). Paradigm as a concept or paradigm as a construction created by the researcher, along with the existing can (or should) include also due - mental representation of the researcher about those provisions that are possible, appropriate or should be in a specific paradigm created by the researcher. The article points to the processes of convergence and reformation of socio-economic provisions in the constitutions of totalitarian socialism (on the example of the amendments of 1988-2004 to the Constitution of the PRC), as well as the inclusion in some capitalist constitutions of norms that are essentially of socialist origin (from socialist teachings), for example, the principle of social justice. In this regard, it is said about the possibility of creating a future Constitution of hybrid social-democratic capitalism, connecting some transformed socio-economic principles of modern capitalism and some principles of socialism (with the exception of their totalitarian elements), the basic principles of socio-economic paradigm (model) of such a Constitution. The author notes that in comparison with all other effective constitutions in the Russian Constitutions there is the most complete set of constitutional provisions governing the foundations of socio-economic law. However, it also lacks some fundamental provisions that are available in some new foreign constitutions: on the social function of private property, social justice, the principle of distribution of the social product, the subsistence minimum, progressive taxation, etc. The appropriate wording is proposed in the article.

Keywords: socio-economic paradigm of the Constitution, advantages and disadvantages of the paradigm of the Russian Constitution.

DOI: 10.12737/art_2018_7_1

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leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: labour@izak.ru

The article is devoted to the instability of the social rights of citizens, to the periodic reduction of the achieved constitutional guarantees. The article draws attention to the actively proposed measures of further derogation of rights in the sphere of social security without regard for their constitutional framework. In the scientific literature, directly opposed opinions are expressed as to whether it is possible to attribute Russia to social states, whether social justice is a legal concept, whether social security rights should be considered constitutional. The author shares positive positions on these issues, proposes to strengthen the theoretical development of the problem of compliance of the sectorial legislation with the requirements of the Constitution and international standards. It is necessary to take into consideration the Message of the President of the Russian Federation to the Federal Assembly of 2018, according to which: the key factor of development should be well-being of people, prosperity in Russian families; a decisive breakthrough is needed in saving the people of Russia, creating conditions for the development and self-realization of each person. The legislation on social security can play a significant role in this breakthrough. When developing legislation in accordance with constitutional requirements, it is necessary to take into account the serious scientific potential, a significant volume of literature on social security law, containing well-reasoned proposals for its improvement in the interests of citizens, and therefore the state. It is proposed to interpret the doubts arising in the course of the analysis of the Constitution in favor of citizens; proceed from the fact that it does not allow the regressive development of social legislation. Russia is called upon to fulfill and develop the public obligations inherent in the USSR in this sphere. The responsibility of state bodies for non-fulfillment of duties, corresponding to the rights of citizens, should be specified and strengthened. When preparing bills related to the social sphere, it is necessary to refer to explanatory notes for compliance with their Constitution, or to prove that they do not contradict its norms.

Keywords: social security, social state, justice, social guarantees, needs of disabled citizens, Constitution of the Russian Federation, constitutional requirements, constitutional rights of citizens, constitutional obligations of the state.

DOI: 10.12737/art_2018_7_2

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leading research fellow of the Department of constitutional, administrative, criminal legislation and international law 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
E-mail: ccla1@izak.ru

Modern legal development is in the focus of the processes of interaction between international and domestic law. At the same time, the Constitution is the most important legal act by means of which the norms of international law are included in the national legal system. The Constitution of the Russian Federation contains the most important provisions on the operation of international treaties and generally accepted principles and norms of international law in the national legal system. In addition, the Constitution gives priority to the application of international treaties of the Russian Federation over Russian legislation in case of conflict. The purpose of the article is to analyze the development of the legal capacity of the Constitution through the prism of universally recognized principles and norms of international law. The objectives of the article: analysis of the provisions of the Constitution of the Russian Federation concerning the operation and application of generally accepted principles and norms of international law and international treaties of the Russian Federation; analysis of the significance of the universally recognized principles and norms of international law for the development of the potential of the Constitution of the Russian Federation; development of proposals and recommendations to improve national legislation on the application of universally recognized principles and norms of international law and international treaties of the Russian Federation; comparative legal analysis of the provisions of the constitutions of foreign States on the ratio of international legal and domestic regulation. Among the methods that were used in the preparation of the article, it is necessary to distinguish the dialectical method, philosophical method, formal-logical method, system-structural method, historical method, formal-legal method, method of interpretation of law, comparative legal method, method of expert evaluation, method of legal modeling and forecasting. Based on the analysis of the provisions of the Constitution of the Russian Federation on the place and role of the universally recognized principles and norms of international law and international treaties of the Russian Federation in the national legal system formulated proposals and recommendations to improve the Russian legislation. The influence of acts of integration associations on domestic legal regulation through the prism of constitutional norms is shown.

Keywords: constitution, international treaties, universally recognized principles and norms, legal system, international law.

DOI: 10.12737/art_2018_7_3

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rector of the Russian State University of Justice, academician of the Russian Academy of Natural Sciences, doctor of legal sciences, professor, honored lawyer of the Russian Federation, honored scientist of the Russian Federation
69, Novocheremushkinskaya st., Moscow, Russia, 117418
E-mail: evv@rsuj.ru

The author analyzes particular universal properties and problems of national and international law. At the same time, the article emphasizes that the universal properties and problems of national and international law do not exclude specific properties as well as problems of national and international law. The following universal properties and problems of national and international law are singled out in the article: types of legal understanding, law and non-law, legal and individual regulation of social relations as paired categories, differentiation of legal and individual regulation of social relations, sources and forms of law, rule of law and legal state, gaps in law, the principles of law, the concretisation of law, the certainty of law, law and justice as paired categories. The general conclusion made in the article is that law is first of all expressed in the principles and norms of law contained in a single, developing and multilevel system of forms of national and (or) international law implemented in the state, and not only in the norms of law established in “legislation” or in various “systems of sources of law”.

Keywords: universal in law, types of understanding of law, law and non-law, legal and individual regulation of social relationship, sources and forms of law, rule of law, legal state, gaps in law, principles of law, concretisation of law, certainty of law, law and justice as paired categories.

DOI: 10.12737/art_2018_7_4

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associate professor at the Department of theory and history of state and law of the Irkutsk Law Institute (branch) of the University of the Prosecutor’s Office of the Russian Federation, candidate of legal science, associate professor
1, Shevtsova st., Irkutsk, Russia, 664035
E-mail: grafik-87@mail.ru

Scientific knowledge and practical understanding of the central legal categories should be founded on qualitative methodology. The problems of studying the legal liability on modern stages development of state-organized society demonstrate its profundity and pendency of a number of general theoretical nature’s scientific-researching priorities. There is necessity of re-thinking the basic statements of legal liability’s general theory based on the use of the new methodology system. The purpose of this article is to thoroughly study and demonstrate the peculiarities of methodological guidelines in general theoretical research of legal liability. The research objective follows from the purpose and is intended to study certain issues of this topic (types of research, formation and structure of methodology, value of particular methods, connection with the practice of the expected results etc.). To reveal the subject of the research there are used certain logical, sociological and special legal methods (regular (technically) legal, synergetic methods and legal modeling). The author systematizes the categories of legal research, showing their methodological features and tendencies. The general theoretical basis of any scientific research in the field of legal liability is in under the focus; scientific works in the sphere of legal liability theory are classified. The analysis of points of view regarding the understanding and content of the methodology is given; its external and internal aspects are described; identifies the value of traditional and new general methodological provisions for scientific and practical activities. By means of scientific paradigm the connection between methodology and legal liability is identified, which is presented in a generalized form of a scientific way (constructions, models). The basic methodological purposes and conditions to be taken into account in the process of general-purpose legal liability research are formulated. The necessity of studying legal responsibility through the prism of the legal model’s system is justified, the properties of which should be determined using the synergetic method and the legal regulation method.

Keywords: research, methodology, legal liability, synergetic method, legal modeling.

DOI: 10.12737/art_2018_7_5

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professor at the Kutafin Moscow State Law University, doctor of legal sciences
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: alblagodir@yandex.ru

The article deals with the problem of a statutory social insurance relations’ regulation. The author focuses on the research of statutory social insurance relations in their historical development and brings light to the problems of regulation in labor legislation in force. Methodological research basis lies in the historical method allowing consideration of the statutory social insurance relations’ development in labor law, formal legal method that permits to reveal inter-branch system-based contacts in the regulation of the relations. The researcher makes a conclusion that nowadays the sphere of statutory social insurance relations in labor law resides in the fact that up to the moment the conclusion of an employment agreement and creation of labor relationship, the insurant and the insurance underwriter are already in administrative and financial legal relations. The author comes to the conclusion that the peculiarity of relations in labor law’s statutory social insurance is that, unlike labor relations, simultaneously with which they arise, the basis for their emergence is not an agreement between its parties, but a rule of law, where the content is determined by the state and cannot be changed by agreement of the parties. The analysis of the current labor legislation gives grounds to believe that the indicated peculiarity of the researched relations by the legislator has been ignored, since their inclusion in the subject of labor law was not accompanied by the fixing in the Labor Code of the Russian Federation of the appropriate legal mechanism for their regulation that takes into account this specificity.

Keywords: legislation, Labor Code, statutory social insurance; elements directly related with labor relations; social security law.

DOI: 10.12737/art_2018_7_6

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postgraduate student at the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
Е-mail: khozerova87@gmail.com

Along with an annual basic paid leave, the labor law provides for certain types of additional paid leave, including annual additional paid leave for employees with irregular working hours, employees working in harmful and/or dangerous labor conditions, an annual additional paid leave for the special nature of work, etc. If such paid leaves as annual additional paid leave for employees with irregular working hours and employees working in harmful and/or dangerous labor conditions are quite well regulated, an issue of annual additional paid leave for the special nature of work has not been sufficiently regulated in our legislation. As a result of this work, issues of regulation and procedure for granting leave for the special nature of work were considered. The author emphasizes on the existing defect of right related to a leave for the special nature of work as the main problematic aspect, and suggested various ways of established practice to grant leave for the special nature of work. Consideration of possibility for an employer to determine independently the categories of employees, to whom a leave for the special nature of work shall be granted, and establishment of a minimum duration of a leave for the special nature of work, allows elimination of the existing contradictions and, thus, the amount of disputes concerning provision of a leave for the special nature of work to certain categories of employees. In order to improve the regulation, the author believes that the wording of the Article 118 of the Labor code of the Russian Federation on annual additional paid leave for the special nature of work requires a significant change, since the legislator does not determine any criteria for “special nature of work” or the mechanism for granting such leave.

Keywords: annual additional paid leave, legal defect, regulation, employee’s rights.

DOI: 10.12737/art_2018_7_7

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deputy director of the Legal Department of the State Space Corporation “Roscosmos”, doctor of legal sciences, professor, honored lawyer of the Russian Federation
42, Shchepkin st., Moscow, Russia, 107996
E-mail: vim2007@yandex.ru

Cases of involuntary harm are found in all spheres of human activity. When choosing methods to implement obligations and rights people rely, as a rule, not on the norms of the Chapter 8 of the Criminal Code of the Russian Federation, and regulatory acts that specifically regulate their activities and determine the algorithms for using malicious means in certain situations. However, in theory the position dominates, that a set of situations, in which harm is legally permissible, is exhausted by the rules of Chapter 8 of the Criminal Code. Based on the analysis of various law branches’ norms and the study of judicial practice it shows that as a theoretical justification of removing this contradiction it can be a legitimate concept of damage, according to which the regulation of legitimate injury situations is carried out not only by the Chapter 8 of the Criminal Code, but also by the norms of other branches of legislation. The study’s purpose is scientific substantiation of the possibility to regulate acts of legitimate cause of harm, using various branches of law rules primarily in the operational activity of law enforcement bodies and special services. This goal has been achieved by solving the problem of justifying the presence in the reality of such a situation of legitimate harm as «the performance of professional (official) functions». The solution of the task was provided based on use of general and privately-nuanced research methods: functional and system-structural; formal-logical; comparative legal; and statistical methods. The author comes to the conclusions that there is a need to supplement the Chapter 8 of the Criminal Code, because it states, that to cause harm in the course of the lawful performance of professional (job) functions is not a crime. On this basis, there should be more detailed regulation of the grounds and limits of harm in the regulations, defining in detail the activities of law enforcement and intelligence agencies.

Keywords: legitimate harm, crime, operational investigations, performance of a special task, execution of professional (official) functions, circumstances precluding the crime of the act.

DOI: 10.12737/art_2018_7_8

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deputy director of the Ural branch of the Russian Academy of Justice, candidate of legal sciences, associate professor
160, Pobedy ave., Chelyabinsk, Russia, 454084
E-mail: garbatovich@mail.ru

The article raises the problem of the generally accepted concept’s absence of the term “criminal law method”. The purpose of the work is to reveal the concept and content of the term “criminal law method». The objectives of the study: to consider the existing definitions of the “criminal law method”; to distinguish such components of the criminal law method as a “method”, “reception”, “means”; to reveal the content of “methods” and “means” of criminal law. The following conclusions are made in the work. 1. “Regulation method” is revealed not simply as a “method” or “means”, but as a “set of techniques, methods and means” by which substantive and procedural law affect social relations. “Reception”, “method” as components of the legal method answer the question of how social relations are regulated. “Means” as a part of the legal method answers to the question, with the help of which techniques and methods regulate legal relations. 2. The meaning of the prohibition as the criminal law method consists in the prohibition to commit: criminal acts; socially dangerous acts; negative post-criminal acts. 3. It clarifies the meaning of permission, according to which the criminal law does not prohibit committing all acts provided for by the Special part of the Criminal Code of the Russian Federation, provided that they are in the absence of public danger (the part 2 of the Art. 14 of the Criminal Сode) and not recognized as offenses from the perspective of other law branches. 4. The order as a method of criminal law obligates to perform certain actions of not only judges and other officials that possess the right, for example, to make decision on the release of a person from criminal liability, but also other persons involved, for example, in the application of coercive measures of a medical nature or coercive measures of educational impact. 5. The main methods, such as criminal law methods, are the prohibition, authorization, regulation, and means of implementation of these methods, where techniques are the regulation of criminal law and relevant criminal law institutions.

Keywords: regulation method, prohibition, permission as ways of regulation in criminal law.

DOI: 10.12737/art_2018_7_9

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acting head of the Department of constitutional, administrative, criminal legislation and international law of the Institute of Legislation and Comparative law under the Government of the Russian Federation, doctor of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: mp7@izak.ru

The problem of relations between a legal entity and its founders (participants) is relevant for various branches of law, since the principles underlying the concept of a legal entity (autonomy and limitation of liability) can be a means for various abuses. Modern legal doctrine continues to develop the concept of removing the corporate veil, which was accepted in Russia. There are also several rules in the tax law which allow to impose legal consequences of actions of an interdependent (affiliated) legal entity on the relevant person. The purpose of the study is to analyze these relations in the view of tax issues, including the consequences of tax and legal retraining of the transactions' results, bringing the controlling individual to responsibility for causing damage to the budget in cases where the legal entity served only as a "cover" for its actions, de facto not being an independent participant in economic activity. Objectives of the study is to explore the meaning of the principles of autonomy and the limitation of the legal entity's liability for tax law, to identify and systematize the legal model of counteraction to the abuses in the tax sphere, to consider the basic model of their construction. The author uses the methods of analysis and synthesis, deduction and induction, which contributed to the disclosure of the essence of legal phenomena in their integrity and relationship, ordering and systematization of research issues and conclusions drawn from it. The article reveals the constructions of counteraction to tax abuses in the national legislation on taxes and fees, in the international treaties of the Russian Federation on avoidance of double taxation of income and counteraction to tax evasion, in judicial doctrines. It is noted that legal, economic and actual types of control are used to identify taxed persons. The conclusion is made that the principle of substance over form prevails in the tax sphere is the basis of models of combating abuses in the tax sphere. Since the structural elements of transnational corporations implement the group's fiscal interests in General, legal decisions aimed at independent, independent taxpayers are ineffective in relation to them. The article assesses the following structures: the concept of unjustified tax benefit, the Institute of tax control of prices in transactions between related parties (transfer pricing rules), the concept of a person having the actual right to income (beneficial owner), the rules of insufficient (thin) capitalization, the Institute of controlled foreign companies.

Keywords: tax, corporate veil, unjustified tax benefit, controlled foreign company, transfer pricing, interdependent persons.

DOI: 10.12737/art_2018_7_10

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senior officer of the procedural unit Border Department of the Federal Security Service of Russia in the Eastern Arctic region, lieutenant colonel of justice, candidate of legal sciences
1/1, Karl Marx ave., Russia, Petropavlovsk-Kamchatsky, 683032
E-mail: morozov-j-v@mail.ru

The presented work is devoted to the problems concerning the authorisation of special entity - persons who are not citizens of Russia, persons with dual citizenship, immigrants, re-emigrants, including Russian citizens who have a residence permit or other document confirming their right to permanent residence in a foreign country, to the state secret information. The purpose of the study is to analyze the current state of the legislation on state secrets, regulating the procedure for authorization of special entities to classified information. The research studies the social relations arising in the process of implementation of the legislation on state secrets. During the study, general scientific and private scientific methods of cognition were equally applied, and they formed the methodological basis of scientific conclusions. The author analyzes the legislation on state secrets, provides examples of non-compliance in normative legal acts and judicial practice. The features of authorization of special subjects to the state secret information are revealed. The analysis is carried out in respect of each category of persons, which are connected or has been connected with a foreign state. Considering the position of the Constitutional Court of Russia regarding the statement about the security of the state, the necessity to limit the special entities in access to secret information at the legislative level, thus in this sphere of legal relations to equate these persons with foreign citizens. The consolidation of such a provision at the legislative level will avoid the risks of possible «leakage» of secret information.

Keywords: foreign citizens, stateless persons, dual nationals, polypetide, emigrants, re-emigrants, state secret.

DOI: 10.12737/art_2018_7_11

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senior research fellow of the Department of administrative legislation and procedure 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
E-mail: adm1@izak.ru

Knowledge of the legal reality is performed using accurate descriptions of the studied legal phenomena. Positions and points of view expressed in the research should be understood by all other researchers with possible accuracy, which is achieved using conventional conceptual and terminological apparatus. However, many of the terms used in modern scientific research and regulatory legal acts correspond to the true content of the defined phenomena. In the acts in defence and security public relations, there are centuries of well-established concepts and terms: forces, navy, army, soldier, military, troop etc. These terms and formed on the basis of them secondary terms are widely used in the acts of the military administration. The terms “military”, “troop” and “soldiery” are often used as synonyms. Meanwhile, their meaning and content do not coincide. The legal significance of legal definitions is undoubted. But an accuracy is especially important in establishing the legal status of military organizations, determining their place and role in the structure of the military forces of the state. The correct understanding of the relationship between the concepts of “military”, “troop” and “soldiery” is also of doctrinal importance. The aim of the study was to identify the compliance of the existing in the science of military law of the ratio of the basic concepts of “military”, “troop” and “soldiery” and the formulation of the author’s position on this issue. Based on the comparative legal method of the study of the legal status of parts as an administratively independent military units, scientific and special literature, as well as regulatory legal acts at various stages of development of the military (now armed) forces, the article determines the author’s position on the ratio of these concepts. It can be argued that the meaning and content of the term “military unit” does not correspond to the content of the subject of law, or the linguistic meaning of the word “military”. Its current application distorts the essence of the state military organization.

Keywords: defense, military force, armed forces, troops, military unit, soldierly unit, military terminology.

DOI: 10.12737/art_2018_7_12

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senior research fellow of the Department of methodology of corruption counteraction of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of political sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: antikor@izak.ru

The article is devoted to the analysis of the legal framework, ensuring the activity of the created commissions on the coordination of anti-corruption in the Russian Federation, the practice of their formation and functioning in the Russian Federation, as well as gaps in legal regulation, identified in the process of law enforcement. In the basis of mechanisms of development and implementation of anti-corruption measures in the constituent entities of the Russian Federation there is an integrated, interagency approach, involving joint development and coordination of the implementation of such activities by various public authorities, local governments, organizations and public associations. The need for the implementation of a unified state anti-corruption policy led to the creation of a specialized body (Commission) under the highest official (head of the supreme executive body of state power) of the constituent entity of the Russian Federation, designed to solve not only the coordination tasks, but also to ensure the implementation of the decisions of the Council under the President of the Russian Federation on combating corruption, to prepare proposals for the implementation of state policy in the field of combating corruption. The organizational and legal model of coordination of anti-corruption policy, which provides for accountability of the specialized body for combating corruption to the head of the subject of the Russian Federation, is adopted as a basis in the subjects of the Federation, ensures the consistency of anti-corruption work in the constituent entity of the Russian Federation. However, an analysis of the legal regulation of the commissions shows that there are still some gaps in the regulation of the establishment and functioning of these structures. On the one hand, the law-making practice abounds in numerous ways of establishing the status of a coordinating body, but at the same time, the legislation of individual entities either does not provide for the status of a coordinating body, or there is no mention of it at all.

Keywords: corruption, commission, coordination of work on anti-corruption, constituent entity of the Russian Federation.

DOI: 10.12737/art_2018_7_13

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Review of the Monograph “Eurasia and Islam. Eurasian Vector: Muslim Religious and Socio-Political Thought about the Civilizational Unity of Russia-Eurasia” by A. Loginov. Moscow, 2017

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Review of the Conference "Law, Act and Court in Karl Marx’s Works" (21 February 2018).

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