V. V. LAZAREV
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 107078, Russian Federation
The Russian legal system as an ideology includes the relevant legal doctrines. The implementation of judicial decisions as a doctrine in science was not designated. First, because the concept itself was introduced into scientific use not so long ago. Secondly, it is used primarily in international law and is only just reaching the level of general theory. Thirdly, a holistic view of the phenomenon has yet to be established.
In Russia the Constitutional Law on the Constitutional Court of the Russian Federation provides for the implementation of a court decision in the legislation. The legislator is obliged to review its rules in the light of the decision of the Constitutional Court, to make appropriate provisions to ensure the constitutional rights of the bearers of rights and obligations. Unfortunately, the doctrine has not yet thoroughly analysed the implementation of the established obligation. Meanwhile that is not enough to do formal reproduction of the text of the judgment. Experience shows that in all such cases it is necessary to involve specialists in the relevant field of legislation, and in some cases doctrinally to work more deeply on the implementation process. They, first, will study the results of the trial for the completeness of compliance of legislative acts with the highest constitutional values (the doctrine here, unlike practitioners, can critically evaluate the reasoning of the court); secondly, a full-fledged system analysis of errors, gaps and contradictions in the legislation discovered and not yet revealed by judicial practice will be given; thirdly, the reasons for the lack of effective protection of the violated right will be clarified, the corruption component will be shown, etc.
The author sees in the implementation activity a special way of enriching the system of positive law, which has advantages over traditional ones. For example, law-making itself, even if it goes through all the stages, is carried out mostly in isolation from court decisions (read - in isolation from the realities of life). In science, the principle of the rule of law is recognized and the law is not identified with the law, with the will of the legislator itself. In addition, there are grounds to recognize certain laws are not legal. And such conclusions are actually seen in some decisions of the constitutional courts and decisions of the ECHR. These courts make decisions that are most suitable to the rule of law in the process of implementation of their decisions more fully highlight the conflict between the law and the law.
The article attempts to justify the role of the court not only as a guarantor of the existing legal system, but also as an institution that powerfully harmonizes this system. The law contains abstract truth and simplicity - it is a kind of virtual reality. The courts materialize it, transfer it from the sphere of due and possible to the sphere of things, bind it to specific subjects of legal relations in relation to the actual side of their development in the conditions of a given place and time. This is a creative process in which the legislative content not only becomes alive, but also begins to live their lives, enriched with new facets. The problem is not limited to the implementation of legal provisions created by the constitutional courts and the courts of inter-state. The general courts are also involved in rulemaking.
law, court, implementation of court decisions, statutory law, principle of legality, principle of subsidiarity, legal position, integrative perception of law.
Lazarev V.V. Doctrine of Implementation of Judicial Decisions in Legislation. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 5—16. (In Russ.) DOI: 10.12737/jrl.2019.7.1
Bruno L. Freedom and the Law. Moscow, 2008. 308 p. (In Russ.)
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Lazarev V. V. On judicial sovereignty of national and international courts. Implementation of the Judgments of the European Court of Human Rights in the Russian Legal System: concepts, legal approaches and practice. Moscow, 2019. 416 p. (In Russ.)
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Lazarev V. V., Fursov D. I. Establishing Nature of Law in Judicial Decisions. Zhurnal rossijskogo prava = Journal of Russian Law, 2016, no. 5, pp. 5—18 (In Russ.)
Momotov V. V. Bioethics in Context of Legislation and Law Enforcement (Assisted Reproductive Technology). Rossiyskoe pravosudie, 2018, no. 12, pp. 42—52. (In Russ.)
Rabinovich P. M. The Opening word. Non-classical legal philosophy: questions and answers. Ed. by A. V. Stovba. Kharkov, 2013. 271 p. (In Russ.)
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V. I. PRZHILENSKIY
Kutafin Moscow State Law University, Moscow 125993, Russian Federation
The author notes that in the process of developing and implementing a digitalization program for criminal justice, it is important to assess the role and place of theoretical and cognitive foundations of this institution, both in terms of their adaptation to new conditions and procedures, and in terms of taking into account those conceptual changes that have occurred in philosophical theory of knowledge and its special legal applications. The article deals with the problems arising in the process of interaction of philosophy and science (the problem of coexistence of various mechanisms of inter-level interaction), as well as in the process of interaction of private science disciplines (the problem of "methodological imperialism"). Theses on the replacement of a person by a machine in the process of “solving crimes” are critically analyzed.
The purpose of the study is to test the hypothesis of a change in the meaning and the content of the terms subject, object, objectivity in the context of digitization of criminal proceedings. Achieving this goal involved solving certain tasks, primarily analyzing changes in the field of the philosophical theory of knowledge, evaluating the possibility of taking them into account in a special scientific (legal) theory of knowledge and including them in the range of problems considered in the perspective of digitalization of criminal proceedings.
In preparing the article, both philosophical methods (philosophical-hermeneutic and philosophical-analytical) and historical-philosophical-scientific (sociology of knowledge, discrus-analysis, critical reflection) methods were used.
The main conclusion is that in the process of digitization of criminal proceedings, it is necessary to preserve the basic theorist-cognitive principles for distinguishing between formal and substantive, between objective (intersubjective) and subjective, which does not preclude a critical assessment of the capabilities of traditional ways of defining concepts and categories common in the classical theory of knowledge.
theory of knowledge, digitalization, criminal justice, subject, object, objective.
Przhilenskiy V.I. Theoretical and Cognitive Basics of Criminal Proceedings in the Context of Possibilities of Its Digitalization. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 17—29. (In Russ.) DOI: 10.12737/jrl.2019.7.2
Agatstsi E. Scientific objectivity and its contexts. Moscow, 2017. 688 p. (In Russ.)
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Kapp E., Nuare L., Espinas A. The role of tools in human development. Leningrad, 1925. Available at: https://gtmarket.ru/laboratory/basis/3479. (In Russ.)
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Lektorskiy V. A. Classical and non-classical epistemology. Moscow, 2001. 256 p. (In Russ.)
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Vlasova S. V. On the issue of adapting the criminal procedure mechanism to the digital reality. Biblioteka kriminalista. Nauchnyy zhurnal, 2018, no. 1, pp. 9—18. (In Russ.)
E. E. NIKITINA
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
The article is devoted to the issues on institute of the Russian citizenships as a key instrument providing the implementation of the migration policy of the Russian Federation. Citizenship can be considered as a right, as a basis for the relationship between the state and the individual, or as an instrument to achieve certain goals that are up against the state and society.
The author concludes that the legal regulation of the institute of citizenship can intermediate the solution of a number of issues facing the migration policy of the Russian Federation, including those which are related to the socio-economic development of Russia, reducing the demographic problems and spatial disproportion of the population distribution in the Russian Federation. The author believes that homeland security problems can also be solved by improving the legislation on citizenship. The improvement of legislation on the status of the state program on rendering assistance to voluntary resettlement to the Russian Federation is considered in more details. Such improvement is needed for unleashing of its potential in achieving the goal of protection and preservation of Russian culture, Russian language and historical and cultural heritage of the peoples of Russia.
However, some amendments to the legislation on citizenship are not fully consistent with the goals of the migration policy of the Russian Federation. The article presents the examples of inconvenient amendments which were made to Federal Law of May 31, 2002 No. 62-FZ “On Citizenship of the Russian Federation”, such as some provisions of Federal Law of December 27, 2018 No. 544-FZ “On Amendments to the Federal Law “On Citizenship of the Russian Federation”. The author analyzes and makes value judgements about some draft laws on citizenship in conjunction of the forecast of their regulatory impact and the solution of current problems of domestic migration policy. The article contains the analysis of specified provisions of the State Migration Policy Concept of the Russian Federation for the period up to 2025. The article presents and analyzes statistical data on the adoption of Russian citizenship.
migration, human rights and freedoms, citizenship, citizenship of the Russian Federation, fellow citizens, the state program on rendering assistance to voluntary resettlement to the Russian Federation, dual citizenship.
Nikitina E.E. Legislation on Citizenship and Improvement of Migration Policy of the Russian Federation. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 30—42. (In Russ.) DOI: 10.12737/jrl.2019.7.3
Andrichenko L. V. Migration Law in the Russian Legal System. Zhurnal rossijskogo prava = Journal of Russian Law, 2018, no. 3, pp. 5—16. (In Russ.)
Avakyan S. A. Constitutional law of Russia. Training course. Vol. 1. Moscow, 2007. 719 p. (In Russ.)
Plyugina I. V. Issues of Labor Activity of Foreign Citizens Studying in Russia. Zhurnal rossijskogo prava = Journal of Russian Law, 2011, no. 6, pp. 16—22. (In Russ.)
Plyugina I. V. Registration institute: Comparative Legal analysis. Zhurnal zarubezhnogo zakonodatel'stva i sravnitel'nogo pravovedeniya = Journal of Foreign Legislation and Comparative Law, 2018, no. 3, pp. 101—106. (In Russ.)
D. V. BONDARENKO, N. V. PUTILO
D. V. BONDARENKO, Federal Centre for Educational Legislation, Moscow 115419, Russian Federation
N. V. PUTILO, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 107078, Russian Federation
Language relations are the basis of the life of any state education. How and to what extent they are regulated by law determines the viability, political stability, territorial integrity, independence and even security of the state. In different countries, the process of formation of language legislation and language policy was different, but always under the influence of historical and economic sometimes geopolitical conditions and factors. The Russian historical reality has significant differences from the European one, and the language legal doctrine has passed a more complicated way of development, and at different historical stages the vectors of development have changed even on diametrically opposite. Today, the language legislation of Russia is outdated, many of its institutions have not been developed, there are a large number of gaps. It is necessary to pay attention to the negative trends emerging in the field of the study and teaching of national languages. We cannot ignore the deplorable situation with the disappearing languages of the indigenous peoples of the Far North and Siberia.
The objectives of the study were the aspects of international legal regulation of language legal relations. The objectives of the study can determine the need for correlation with the current state of legal regulation of language relations in Russia. In addition, the most important task was the need to substantiate the reasons for Russia's premature ratification of the European Charter on regional and minority languages. Particular attention is paid to the preservation of minority languages of the Russian Federation and the development of bilingual education.
Methods of special legal research of problems of efficiency of legal norms, with the features characteristic for the analysis of law-enforcement process in the sphere of education and science were used. Among these features is the state of reform in the field of education and science, the updating of legislation in this area, in particular the adoption of significant amendments to the Federal law "On education in the Russian Federation" in 2018.
The current state of language legislation in Russia is generally characterized by inconsistency, fragmentation and heterogeneity. We need a well-developed system of changes in norms and institutions of Russian law, which makes it possible to get a clear idea of what the state language is and its relationship with other types of languages, improving standards and methods of teaching Russian in educational organizations of the constituent entities of the Russian Federation taking into account regional and ethnocultural characteristics.
international legal regulation, language legal relations, minority languages, language policy, state language, bilingual education.
Bondarenko D.V., Putilo N.V. The Right to Use a Native Language in the Russian Federation in the Context of Globalization. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 43—55. (In Russ.) DOI: 10.12737/jrl.2019.7.4
Arlene Egana, Rebecca Maguirea, Lauren Christophers, Brendan Rooney. Developing creativity in higher education for 21st century learners: A protocol for a scoping review. International Journal of Educational Research, 2017. Vol. 82.
Atarshchikova Ye.N. Language as an object of law regulation. Obshchestvo i pravo, 2012, no. 4, pp. 16—19. (In Russ.)
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Bitkeeva A. N. National language policy of Russia: new challenges, recent trends. Language policy and language conflicts in the modern world. International conference (Moscow, 16—19 September 2014): Reports and presentations. Ed. by A. N. Bitkeeva, V. Yu. Mikhalchenko. Moscow, 2014. Pp. 80—88. (In Russ.)
Dorovskikh Ye.M. Legal aspects of national language policy in the Russian Federation. Zhurnal rossijskogo prava = Journal of Russian Law, 2008, no. 11, pp. 53—69. (In Russ.)
Gritsenko Ye. S., Kirilina A. V. Language policy in the context of globalization. Language policy and language conflicts in contemporary world. International conference (Moscow, September 16—19, 2014): Reports and communications. Ed. by A. N. Bitkeeva, V. Yu. Mikhalchenko. Moscow, 2014. Pp. 95—101. (In Russ.)
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Lyashenko N. V. Russian as the state language of the Russian Federation: constitutional and legal analysis. Cand. diss. thesis. Moscow, 2004. 25 p.
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Rudnev D. V., Sadova T. S. Russian Language as the State Language of the Russian Federation and Contemporary Russian Literary Language (in the Framework of Implementation of the Federal Law “On State Language of the Russian Federation”). Zhurnal rossijskogo prava = Journal of Russian Law, 2017, no. 2, pp. 56—66. (In Russ.)
Russian Constitution. Doctrinal commentary (article by article). Ed. by Yu. A. Dmitriev, Yu. I. Skuratov. 2nd ed. Moscow, 2013. 688 p. (In Russ.)
Shanta Nair-Venugopal. Linguistic ideology and practice: Language, literacy and communication in a localized workplace context in relation to the globalized. Linguistics and Education, 2013, vol. 24, iss. 4.
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Yu. E. PUDOVOCHKIN, M. M. BABAEV
Yu. E. PUDOVOCHKIN, Russian State University of Justice, Moscow 117418, Russian Federation
M. M. BABAEV, Russian State University of Justice, Moscow 117418, Russian Federation
The legal certainty - is a significant principle and the ideal of modern criminal law. In the process of ruling criminal cases, court plays a specific role in accomplishment of legal certainty - on the one hand, abiding stability of judicial practice under changing legislation, on the other hand - ensuring adequacy of judicial practice to changing social environment under permanency of criminal law. The conjunction of stability and dynamism of judicial practice stands out as one of the essential characteristics of court's activities in terms of its implementation of state criminal policy. At the same time, in the light of requirements of legal certainty, the dynamics of judicial practice in response to fluctuation in the criminal political course acquires a special meaning and validly claims the status of an independent subject of scientific analysis.
The authors' research tasks are to show the causes, content, forms of manifestation, consequences and conditions of admissibility of judicial practice's dynamics in situations, on the hand, of transformation and, on the other hand, stable existence of criminal law on the ground of study of transformations of interpretive positions of the highest court of the state; and on this basis identify the borderline, beyond which justifiable dynamics of court's law enforcement practice turns into manipulated and politically biased activity.
In carrying out the study, traditional methods of socio-legal and criminal-political analysis were used: a documentary, analytical, prognostic, dogmatic and historical-legal.
According to the results of the study, it is proposed to consider the dynamism of the interpretive positions under criminal law permanency as a subject of close observation and special analysis. It is proved that such dynamics are permissible only when they act as a means of solving accumulated law enforcement issues and are aimed to overcome the lack of effectiveness of prior approaches to their resolution. Respectively, it is also proposed to consider inadmissible for an independent court to change the established practice only because of the need for court to participate as a state body in a particular criminal political program implemented by the state.
criminal policy, legal certainty, court as a subject of criminal policy, judicial interpretation of a law, stability of judicial practice, forecast of judicial practice's dynamics.
Pudovochkin Yu.E., Babaev M.M. Dynamism and Stability of Judicial Practice. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 56—64. (In Russ.) DOI: 10.12737/jrl.2019.7.5
Alatortsev A.Yu. Legal certainty of criminal law prohibition. Cand. diss. Moscow, 2018. 203 p. (In Russ.)
Dikarev I. S. The principle of legal certainty and the validity of a court decision in criminal proceedings. Volgograd, 2015. 173 p. (In Russ.)
Harris D., O'Boyle M., Warbrick K. Law of the European Convention on Human Rights. Moscow, 2016. 1432 p. (In Russ.)
D. A. PECHEGIN
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
Cryptocurrency rates have long been subject to fluctuations, although recently there has been a moderate growth. Whether such an assessment is justified, whether it is a true reflection of the market conditions and whether investing in cryptocurrencies is up to everyone to decide. However, cryptocurrencies as a new phenomenon should be subject to appropriate legal assessment.
The main attention of modern researchers on this issue is drawn to the cryptosphere's fiscal and civil regulation. Some researchers believe that cryptocurrencies are commodities. Others argue that these new matters should be considered as money, or at least as means of payment. Meanwhile, modern technologies allow unhindered virtual transactions without proper control by the state. This is due to the legal vacuum in the regulation of the new cryptosphere relations, which is currently exceptionally quintessential for developing countries. Only some jurisdictions nowadays seek to identify suspicious and non-complying with legitimate purposes transactions in the cryptosphere (e.g., Japan, China, USA).
The lack of the cryptosphere's proper regulation at the national level and the diversity of opinions on the nature of new matters create problems in law enforcement, including a criminal law sphere. Although at the international level the United States through the IRS and FATCA show extraterritorial activity and set industry standards, and the FATF and the European Union seek to develop universal rules for the cryptosphere regulation in terms of combating money laundering and financing terrorism. However, their acts are not comprehensive. At the same time, this do not mean that it is impossible to determine their significance for the purposes of criminal law.
cryptocurrency, currency regulation, money substitute, surrogates, criminal law, cryptosphere, criminal law meaning of modern electronic money surrogates, Germany.
Pechegin D.A. Modern Digital Quasi-Money: Criminal-Law Meaning. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 65—74. (In Russ.) DOI: 10.12737/jrl.2019.7.6
Boehm F., Pesch P. Bitcoins: Rechtliche Herausforderungen einer virtuellen Wahrung. Eine erste juristische Einordnung. MMR, 2014, pp. 75—79.
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Khabrieva T. Y., Chernogor N. N. The Law In The Conditions of Digital Reality. Zhurnal rossijskogo prava = Journal of Russian Law, 2018, no. 1, pp. 85— 102. (In Russ.)
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Truntsevsky Y. V. Digital (virtual) currency and anti-money laundering: legal regulation. Banking law, 2018, no. 2, pp. 18— 28. (In Russ.)
Truntsevsky Y. V., Sukharenko A. N. Combating illegal use of cryptocurrency: the status and prospects. International public and private law, 2019, no. 1, pp. 41— 45. (In Russ.)
Wegberg R., Oerlemans J., Deventer O. Bitcoin money laundering: mixed results?: An explorative study on money laundering of cybercrime proceeds using bitcoin. Journal of Financial Crime, 2018, vol. 25, iss. 2, pp. 419— 435.
O. O. GRIGOREVA
Academy of Law and Management, Federal Penitentiary Service of Russia, Ryazan 390000, Russian Federation
The solution of housing and domestic issues of staff in service is one of the most important guarantees motivating long-term service in the penitentiary system of the Russian Federation. But today the state's debt to penitentiary employees' families in exercising their right to a lump sum social payment for the residential premises purchase or construction, and the number of people needing better housing conditions, which increases every year, arose to approximately 12,000 families. However in the state budget there are available funds to ensure no more than 100 people a year ... We are sure that if, in the near future, the legal and institutional framework for penitentiary mortgages is enshrined in law, then a significant proportion of young employees who are registered to improve housing conditions, will decide to conclude a mortgage agreement.
The purpose of the study is to propose a mechanism of subsidizing an interest rate on mortgage loans of penitentiary system employees, mutually beneficial for the state and penitentiary staff. The objectives of the study are: to analyze the current state of resolving housing issues for the penitentiary system and their families, justify the need for a new social guarantee, state its essence and make approximate calculations of the budget funds required for its implementation, compare the conditions of the existing and the proposed legal mechanisms.
The study is based on the dialectical method of scientific knowledge, general scientific methods (analysis, synthesis, analogy, comparison), interdisciplinary methods (sociological, statistical and computational methods), as well as private-scientific methods (the comparative legal method and the method of legal modeling).
The penitentiary mortgage is an alternative social state assistance guarantee for the prompt solution of housing issues for penitentiary system's employees and their family members. It reduces the number of those in need with significant budget savings and staff turnover in the penitentiary system.
social guarantees, incentives, mortgage, employees of the penitentiary system, service in the penitentiary system.
Grigoreva O.O. Improving Legal and Institutional Frameworks for Solving Penitentiary Staff's Housing Issues. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 75—88. (In Russ.) DOI: 10.12737/jrl.2019.7.7
Andrichenko L. V. Strategy of State Regional Development of the Russian Federation: Legal Framework. Zhurnal rossijskogo prava = Journal of Russian Law, 2017, no. 5, pp. 5—17. (In Russ.)
Dolinin A.Yu., Akchurin A. V., Brykov D. A. Factors affecting the turnover of staff of institutions and bodies of the penitentiary system: analytical review. Ryazan, 2007. 35 p. (In Russ.)
Grigoreva O. O. The legal framework to stimulate the performance of employee of the penal system (for example, the provision of social guarantees). Cand. diss. Moscow, 2017. 268 p. (In Russ.)
Grigoreva O. O., Truntsevskiy Yu. V. Organization of activities of structural units of institutions and bodies of the penal system, providing employees and members of their families social guarantees. Moscow, 2018. 218 p. (In Russ.)
Grishin D. A., Chudakova S. N. Organizational, administrative and legal problems of staff turnover(separation) in the institutions andagencies of the Federal penitentiary service of Russia. Chelovek: prestuplenie i nakazanie, 2014, no. 4, pp. 71—76. (In Russ.)
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Judicial practice in the modern Russian legal system. Ed. by T. Y. Khabrieva, V. V. Lazarev. Moscow, 2017. 432 p. (In Russ.)
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E. B. ABLAEVA, M. A. UTANOV, K. K. KERIMOVA
E. B. ABLAEVA, Astana University, Nur-Sultan 010000, Republic of Kazakhstan
M. A. UTANOV, Postgraduate Education Institute, Academy of Justice under the Supreme Court of the Republic of Kazakhstan, Nur-Sultan 010000, Republic of Kazakhstan
K. K. KERIMOVA, Astana University, Nur-Sultan 010000, Republic of Kazakhstan
The work is devoted to studying a legal nature of an administrative justice institute within a preSoviet period preceding the Soviet authorities' formation. It is understood that the historical, legal and comparative legal analysis of the subject in this article has a theoretical and practical significance in matters of creating a unique, coherent and efficient system of administrative justice in the Republic of Kazakhstan. The study covers the pre-Soviet development period of the administrative justice institution, which lower boundary is the initial point of the Soviet authorities' formation, and the upper boundary is its final point. The article analyzes the basis, conditions and procedure for settling public law disputes referred to as administrative cases during the operation of the Provisional Government, by judicial, quasi-judicial and administrative bodies.
The topic's current issue is the absence of the Administrative Procedure Code of the Republic of Kazakhstan, which development is provided for by the Action Plan for 2018 to implement the Concept of the Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 in the period - the 3rdquarter of 2018. At the same time, the relevance of the chosen topic is enhanced in the context of implementing the second institutional reform to ensure the rule of law in all spheres of public life. In particular, the Plan of the Nation - 100 Concrete Steps, approved by the Program of the President of the Republic of Kazakhstan dated May 20, 2015, identifies the main steps aimed at creating a modern state for all.
The purpose of this work is to regulate social relations that have arisen between the state executed by public authorities, their officials, civil servants, on the one hand, and citizens and their associations, on the other hand. To achieve this goal, the following tasks are set: 1) studying regulatory acts of preSoviet Russia, issued by the Provisional Government, which regulate administrative justice matters; 2) identifying grounds, conditions and a procedure for appealing or challenging the legality of public authorities and officials acts, decisions, actions or omissions; 3) identifying borrowing, identity and differences between the institutions of administrative justice of the pre-Soviet period and the modern period.
The methodological basis of the study is the historical-legal and comparative-legal methods of objective reality cognition. The theoretical basis of the study is the works of leading Russian scholars who are devoted to study the administrative justice institution. The regulatory basis for the study is the legislation of the pre-Soviet period, namely the Provisional Government's legal acts.
state administration, local self-government, administrative justice, administrative matters, public disputes.
Ablaeva E.B., Utanov M.A., Kerimova K.K. Administrative Justice under the Laws of the Provisional Government (1917). Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 89—103. (In Russ.) DOI: 10.12737/jrl.2019.7.8
A complete set of laws of the Russian Empire: all 16 volumes with all the Proceedings relating to them and with additional statutes up to September 1, 1910. Ed. by A. A. Dobrovolskiy, A. L. Saatchian. Vol. 2. St. Petersburg, 1911. (In Russ.)
Collection of decrees and resolutions of the Provisional Government. Iss. 1—2. Petrograd, 1917—1918. Iss. 1: 27 february — 5 may 1917. Petrograd, 1917. VI. (In Russ.)
Collection of decrees and resolutions of the Provisional Government: Iss. 1—2. Petrograd, 1917—1918. Iss. 2: 5 may — 24 july 1917. Part 1. Otd. I—VIII. 1918. VII. (In Russ.)
Luparev Ye. B. The Genesis of Legal Regulation of Administrative Justice in Russia in the Pre-Soviet Period: An Attempt at a New Historical Retrospective. Obshchestvo i pravo, 2016, no. 3. (In Russ.)
Nikolaeva L. A., Soloveva A. K. Administrative Justice and Administrative Legal Proceedings: Foreign Experience and Russian Traditions. St. Petersburg, 2004. (In Russ.)
Regulation on elections to the Constituent Assembly. Petrograd, 1917. (In Russ.)
Sadykov A. N. Regulations on the election to the Constituent Assembly with an explanatory note drawn up on verbatim reports and reports of the Special Meeting for the preparation of the draft provision on elections to the Constituent Assembly and article-by-article explanations. Petrograd, 1917. (In Russ.)
The code of laws of the Russian Empire. Ed. 1902. Vol. 9: A special annex to the laws on states, the Regulation on the rural state. Book 1: The general situation of the peasants. (In Russ.)
Zagryatskov M. D. The law on volost zemstvo. Temporary Regulation on the Volost Zemstvo Administration of May 21, 1917: Preface, statement of the law and notes. Moscow, 1917. (In Russ.)
Zemstvo institutions: Regulations on provincial and district zemstvo institutions. Rules on how to bring them into action. Circulars on the provision application. Ed. by L. Demis. 3rd ed. St. Petersburg, 1865. XVI. (In Russ.)
E. A. SAVCHENKO
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
The article considers that legality implies not only the existence of a developed legislation system, but also the identification of needs for the adoption or amendment of laws. The absence of laws demanded by society qualifies as a violation of the legality regime, therefore the absence of laws on digitalization, including permissive activities, creates the risk of the legality regime violation. The author emphasizes that the legislation vector should be directed towards transferring management decisions of the lower level to software systems operating on the basis of artificial intelligence, so-called intelligent agents.
The article notes that one of the main tasks to form a new technological basis in the digital economy is to reduce the administrative burden on business entities due to the use of ICT during inspections by state control (supervision) bodies. According to the author, it is necessary to reorient the control and supervisory activity with a simple fixation of the offense with the subsequent application of sanctions to the preventive system in relation to causing harm, and as a result - to reduce the administrative burden on business entities, while increasing the performance level of control and supervisory functions. The author proposes to determine the limits of the sub-legal regulation of the procedure for the implementation of licensing activities.
legality, licensing and supervisory activities, digital economy.
Savchenko E.A. Some Aspects of Observing Legality by the Subjects of Licensing and Control and Supervisory Activities in Conditions of Modernizing Socio-Economic Development. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 104—114. (In Russ.) DOI: 10.12737/jrl.2019.7.9
Amirbekov K. I. The transformation of views on the understanding of legitimacy as a legal category. Rossiyskaya yustitsiya, 2016, no. 4, pp. 2— 5. (In Russ.)
Improvement of state control and supervision, elimination of administrative barriers in doing business. Ed. by L. K. Tereshchenko. Moscow, 2011. 26 p. (In Russ.)
Khabrieva T. Y. Law Facing the Challenges of Digital Reality. Zhurnal rossijskogo prava = Journal of Russian Law, 2018, no. 9, pp. 5— 16. (In Russ.)
Khabrieva T. Y., Chernogor N. N. The Law in the Conditions of Digital Reality. Zhurnal rossijskogo prava = Journal of Russian Law, 2018, no. 1, pp. 85— 102 (In Russ.)
Kuzmin A. G. Constitutionalism, constitutionalization, constitutional legitimacy: on the issue of correlation of categories. Rossiyskiy sudya, 2014, no. 9, pp. 14— 20. (In Russ.)
Pashentsev D. A. On the issue of the impact of digital technologies on law-making and law enforcement (posing the problem). Rossiyskoe gosudarstvovedenie, 2018, no. 4, pp. 131— 137. (In Russ.)
Permissive system in the Russian Federation. Ed. by A. F. Nozdrachev. Moscow, 2015. 928 p. (In Russ.)
Shokhin D. V. Administrative responsibility for non-compliance with the requirements of the licensing system in the Russian Federation. Zakonodatelstvo, 2012, no. 3, pp. 60—70. (In Russ.)
The National and the Universal in Law: From Traditions to Postmodernism: materials of the VII International Congress of Comparative. Moscow, 2018. 324 p. (In Russ.)
Valyaev Yu. K. Method of permission in the administrative law of Russia. Moscow, 2015. 128 p. (In Russ.)
N. L. LYUTOV
Kutafin Moscow State Law University, Moscow 125993, Russian Federation
The article deals with the issues of the gig-economy influence on the labour regulation. Classic employment relations designed to fit the industrial labour, undergoing the process of transformation because of the labour digitalization. Its new types, such as online platform job, telework and others, result in a growing number of legal norms, where most of them are far from perfect reflection of interests of the employees and employers. Even more importantly, the classic statutory and doctrinal definition of employment relations stays applicable to the narrower circle of workers. Besides that, the emergence of atypical work is intrinsically linked with the growth of employment precariousness, which is quite a big challenge to the social stability.
The author proposes practical conclusions concerning the necessity to of technical modification of norms on certain types of atypical jobs in Russia, as well as the need to introduce the new norms in the Labour Code of Russia, which can deal with some of the new forms of atypical job.
The theoretical conclusion contained in the article is that a doctrinal discussion should be started in Russia that concerns the widening of classical definitions of employment relations and employment contract. Traditional criteria of subordination should be widened by the introduction of the new criteria, such as economic dependence of worker and economic imbalance of power of the employment contract parties.
employment relations, employment contract, atypical employment, digital economy, precarious employment.
Lyutov N.L. The Transformation of Employment Relations and New Forms of Employment in Digital Economy. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 115—130. (In Russ.) DOI: 10.12737/jrl.2019.7.10
Benach J., Vives A., Amable M., Vanroelen C., Tarafa G., Muntaner C. Precarious Employment: Understanding an Emerging Social Determinant of Health. Annual Review of Public Health. Vol. 35. 2014. Available at: https://www.annualreviews.org/doi/full/10.1146/annurev publhealth-032013-182500.
Bercusson B. Employment Protection. Labour Law and Social Europe: Selected writings of Brian Bercusson. Brussels, 2009.
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Braun Ye. A. The concept of nontypical employment and classification of types thereof. Trudovoe pravo v Rossii i za rubezhom, 2014, no. 3, pp. 11—15. (In Russ.)
Bugrov L. Yu. Employment Contract in Russia and Abroad. Perm, 2013. 642 s. (In Russ.)
Butrin D. Not Expensive but Transparent. Federal Tax Service Will Reveal the Attempts to Transfer the Employees to the Regime of Tax on Professional Income. Kommersant, 2019, no. 4. Available at: https://www.kommersant.ru/doc/3854185. (In Russ.)
Chesalina O. V. From Non-Standard Occupational Forms to Work Based on Internet Platforms. Trudovoe pravo v Rossii i za rubezhom, 2018, no. 1, pp. 22—25. (In Russ.)
Chesalina O. V. Work on the Basis of Internet Platforms (Crowdwork and Work on Demand via Apps) as a Challenge to Labor and Social Law. Trudovoe pravo v Rossii i za rubezhom, 2017, no. 1, pp. 52—55. (In Russ.)
Defining the Employment Relationship: Comparative legal perspectives from emerging and developing economies. Ed. by T. Schroff. C. Fenwick. Edward Elgar Publishing, 2019.
Diveeva N. V. The Theoretic Issues of Individual Legal Regulation of Employment Relations. Dr. diss. St. Petersburg, 2008. 396 p. (In Russ.)
Employment. Geneva, 2011. Available at: https://www.ilo.org/wcmsp5/groups/public/@ed_dialogue /@actrav/documents/meetingdocument/wcms_164286.pdf.
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Gerasimova E., Korshunova T., Chernyaeva D. New Russian Legislation on Employment of Teleworkers: Comparative Assessment and Implications for Future Development. Pravo. Zhurnal Vysshey shkoly ekonomiki, 2017, no. 2.
Gimpelson V., Kapelyushnikov R. Atypical Employment. Voprosy ekonomiki, 2006, no. 1, pp. 122—143. (In Russ.)
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Golenkova Z. T., Goliusova Yu. V. The Russian Precariat: Human Capital Accumulation of Different Age Groups. Vestnik Instituta sotsiologii, 2016, no. 3, pp. 57—69. (In Russ.)
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Golovina S. Yu. On Certain Trends of the Russian Labour Law Development in Contemporary Economic Conditions. Pyatyy Permskiy kongress uchenykh-yuristov. Izbrannye materialy. Moscow, 2015, pp. 313—316. (In Russ.)
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Gusov K. N., Tolkunova V. N. Employment Contract. Moscow, 1996. 126 p. (In Russ.)
ILO ACTRAV. From precarious work to decent work. Policies and regulations to combat precarious Employment. Geneva, 2011. Available at: https://www.ilo.org/wcmsp5/groups/public/@ed_dialogue /@actrav/documents/meetingdocument/wcms_164286.pdf
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Lyutov N. L. Elements of Employment Relationship: International Regulations and Russian Court Practice. Trudovoe pravo v Rossii i za rubezhom, 2016, no. 3, pp. 7— 11. (In Russ.)
Lyutov N. L. Social and Labour Relations During Economic Crisis: How to Balance the Interests. Zhurnal rossijskogo prava = Journal of Russian Law, 2016, no. 1, pp. 30— 38. (In Russ.)
McKay S., Jefferys S., Paraksevopoulou A., Keles J. Study on Precarious work and social rights. Carried out for the European Commission (VT/2010/084). Working Lives Research Institute, Faculty of Social Sciences and Humanities, London Metropolitan University. April 2012. Available at: https://ec.europa.eu/social/BlobServlet?docId=7925&langId=en.
Motsnaya O. V. The Atypical Labour Employment: Some Issues of Theory and Practice. Cand. diss. thesis. Moscow, 2009. 23 p. (In Russ.)
Nurtdinova A. F., Chikanova L. A. Differentiation of Legal Regulation of Labor Relations as Typical Tendencies of Labor Law Development. Zhurnal rossijskogo prava = Journal of Russian Law, 2015, no. 6, pp. 68—82. (In Russ.)
Orlovskiy Yu. P. The Unity and Differentiation of Labour Legislation. The Human Right to Life and its Guarantees in the Field of Labour and Social Security. Ed. by K. N. Gusov. Moscow, 2008. Pp. 27— 30. (In Russ.)
Precarious Employment in the Russian Federation: Theory and Methods of Identification, Evaluation and the Vector of Decreasing. Ed. by V. N. Bobkov. Moscow, 2018. 342 p. (In Russ.)
Precarity of Employment: Global and Russian Contexts of the Future of Work. Ed. by V. N. Bobkov. Moscow, 2017. 560 p. (In Russ.)
Radevich Ye. R. Atypical Employment: the Reflection of the International Labour Organisation Special Labour Standards in the Russian Labour Legislation. International Labour Standards and Russian Labour Law: the Perspectives for Coordination. Ed. by S. Yu. Golovina, N. L. Lyutov. Moscow, 2016. Pp. 45—63. (In Russ.)
Regulating the employment relationship in Europe: A guide to Recommendation No. 198. International Labour Office, Governance and Tripartism Department. Zheneva, 2014. 127 p. (In Russ.)
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Shabanova M. A. The Specifics of Legal Regulation of Atypical Employment Contracts. Cand. diss. Yaroslavl, 2008. 211 p. (In Russ.)
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Tarusina N. N., Lushnikov A. M., Lushnikova M. V. The Social Contracts in Law. Moscow, 2017. 480 p. (In Russ.)
The Course of Russian Labour Law. Vol. 3: The Employment Contract. Ed. by Ye. B. Khokhlov. St. Petersburg, 2007. 656 p. (In Russ.)
The Issues of Differentiation in Legal Regulation of Relations in the Sphere of Labour and Social Security. Ed. by K. N. Gusov. Moscow, 2009.
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Vasileva Yu. V., Shuraleva S. V. Remote Work in Russia: Issues of Law Enforcement. Vestnik Permskogo universiteta. Yuridicheskie nauki, 2016, no. 2, pp. 216—225. (In Russ.)
Work for a brighter future — Global Commission on the Future of Work. Zheneva, 2019. Available at: https://www.ilo.org/wcmsp5/groups/public/---dgreports/---cabinet/documents/publication/wcms_662472.pdf. (In Russ.)
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E. A. GLUKHOV
St. Petersburg Military Institute of National Guard Troops of the Russian Federation, St. Petersburg 198206, Russian Federation
The article analyzes the application of the legislative provisions on education concerning the right of teachers for additional professional education. The author reveals the contradictions and conflicts of legal norms in this sphere of relations, analyzes the relative rights and obligations of the teachers' additional training, and checks the situation of payment for this kind of training and presenting false documents of additional professional education.
In the course of the study, the author reveals the typical situations of coercion to obtain additional professional education and explains their compliance with the law. The principal question of its necessity in relation to any category of teachers and expediency of the differential approach is also considered.
By the method of analysis of legal norms and their application in cases of submission of false documents on obtaining additional professional education, the author differentiates such acts into criminal and disciplinary offenses, and the sanctions against the University for failure to send the teaching staff for additional training are studied.
At the end of the article the author draws conclusions and makes suggestions, the main among which is the change in the wording of the Federal Law "On Education in the Russian Federation" in terms of the differential selection of teachers who need additional professional education. The article also considers the need to regulate the issue of professional training of teachers from the military and persons working under civil contracts, which are not subject to the norms of labor legislation.
teacher, additional professional education, documents on education, use of false documents, bureaucratization of educational process.
Glukhov E.A. Additional Professional Education for a Teacher: Right or Obligation? Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 131—140. (In Russ.) DOI: 10.12737/jrl.2019.7.11
Fedin A. N. Some features of the qualification of a crime under part 3 of article 327 of the Criminal Code of the Russian Federation. Ugolovnoe pravo, 2008, no. 3, pp. 58—60. (In Russ.)
Fetisova O. V., Shekhovtsov V. V. The specifics of additional professional education in modern Russia. Gumanitariy yuga Rossii, 2017, vol. 6, no. 5, pp. 287—296. (In Russ.)
Kharitonov S. S. The moral and legal responsibility of teachers of military academy. Rossiyskiy voenno-pravovoy sbornik, 2009, no. 12, pp. 191—194. (In Russ.)
Labor legislation: current issues, comments, explanations. Ed. by Yu. P. Orlovskiy. Moscow, 2012. 567 p. (In Russ.)
Sukhomlinskiy V. A. Conversation with a young director. Narodnoe obrazovanie, 1965, no. 10, pp. 6—12. (In Russ.)
N. V. KICHIGIN
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
Spatial planning is a core tool of urban planning regulation and the subject of legal regulation of urban planning legislation; it serves as the basis for urban zoning and preparation of documentation for the planning of the territory. Spatial planning performs important environmental functions.
The aim of the study is to analyze the tools and capacity of spatial planning in the field of environmental protection. The article sets the following tasks: analysis of the functions of spatial planning documents and identification of functions related to environmental protection; identification of gaps and conflicts in the establishment of environmental functions of spatial planning; identification of the connection of spatial planning documents and territorial schemes for waste management, planning documents of specially protected natural areas; preparation of proposals for improving the existing legislation with the aim of enhancing the environmental potential of the spatial planning documents.
The methods of scientific research are the methods of analysis and synthesis.
Spatial planning, as a tool of urban development, has a number of important functions with environmental focus: functional zoning of territories; placement of objects that have a negative impact on the environment, including objects for waste management; coordination of the placement of objects of federal, regional and local importance, based on their impact on the environment; coordination of planned zones with special conditions of use of territories. At the same time, the environmental capacity of spatial planning can be strengthened: by introducing strategic environmental assessment in the preparation of spatial planning documents of federal, regional and local importance; carrying out engineering and environmental surveys in the development of spatial planning documents; strengthening the impact of territorial planning documents on territorial schemes in the field of waste management; strengthening the correlation between spatial planning documents and documents for planning the development of a net of specially protected natural areas of federal, regional and local importance; it is advisable to provide in the federal legislation the preparation of guidelines for the preparation of regional and local standards of urban design, taking into account environmental aspects of the formation of the of human habitat.
spatial planning, scheme of spatial planning, territorial scheme of waste management, environmental requirements, strategic environmental assessment, functional zoning of the territory.
Kichigin N.V. Legal Support of Environmental Requirements in Spatial Planning. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 141—151. (In Russ.) DOI: 10.12737/jrl.2019.7.12
Bernaz L. P., Zhochkina I. N., Kichigin N. V. et al. Scientific and practical commentary to the Federal law of January 10, 2002 No. 7-FZ “On environmental protection”. Ed. by N. I. Khludeneva. Moscow, 2018. 528 p. (In Russ.)
Commentary to the town-planning code of the Russian Federation. Article by article: scientific publication. Ed. by S. A. Bogolyubov. 5th ed. Moscow, 2016. 752 p. (In Russ.)
Khludeneva N. I. Regulatory function of environmental law: problems of implementation. Zhurnal rossijskogo prava = Journal of Russian Law, 2016, no. 12, pp. 68—79. (In Russ.)
Kichigin N. V. Environmental potential of urban development tools. Environmental and legal problems of sustainable development of settlements. Abstracts of the scientific-practical conference. Ed. by E. L. Minina. Moscow, 2013. Pp. 21—25. (In Russ.)
Kopylov M. N., Kopylov S. M. Kiev Protocol on strategic environmental assessment — 10 years. Ekologicheskoe pravo, 2013, no. 2, pp. 26—31. (In Russ.)
Ponomarev M. V. Problems of protection of the right to a favorable environment in the context of modernization of the infrastructure of waste management facilities. Materials of the international scientific and practical conference “Modern trends in the development of environmental, land and agricultural law” (Moscow, IGP RAS, June 19, 2018). Ed. by V. V. Ustyukova, T. V. Rednikova, O. A. Samonchik, Yu. A. Kasprova. Moscow, 2018. Pp. 114—126. (In Russ.)
Trutnev E. K., Safarova M. D. Urban planning regulation in a market economy. Moscow, 2009. 368 p. (In Russ.)
Urban Development Regulation. Basics of Urban Development Regulation Against the Background of a Fledging Housing Market. Moscow, 2008. 296 p. (In Russ.)
Vasileva M. I. Public interests in environmental law. Moscow, 2003. 424 p. (In Russ.)
Zemlyakova G. L. Some problems of legal regulation of territorial planning (access from SPS “ConsultantPlus”). 2011.
A. M. TSIRIN, V. V. SEVALNEV
A. M. TSIRIN, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
V. V. SEVALNEV, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
The present article is devoted to the study of issues related to the scientific and practical understanding of the order of control over the expenses of persons holding public office and other persons On the basis of a vast amount of acts, including universal and special international conventions, as well as the norms of domestic and foreign legislation, the legal mechanisms for monitoring the expenses of relevant entities are considered. The ways of increasing the effectiveness of control over expenses are proposed, including by raising the responsibility for not monitoring of expenses in cases stipulated by the anti-corruption legislation is appropriate in the framework of supervision over compliance with anti-corruption legislation carried out by the Prosecutor's office. The authors propose to expand the form of a certificate of income, expenses, property and property obligations section "Luxury goods, jewelry". A separate section of this certificate may be referred to as "Cash".
It is stated that in a number of states, such as the United Kingdom, Singapore, Germany, Japan, the United States, Australia and China, public officials of certain categories declare their property and financial status during the inauguration and annually after the inauguration. The study also notes that different approaches to the definition of subjects recognized by officials are presented in foreign countries. For example, the UK Bribery Act 2010 does not contain the concept of "official", in Switzerland, the persons who manage business companies, as well as other commercial organizations, including those with state participation in their authorized capital, cannot be considered as officials. The authors come to the conclusion that the current trend in the development of anti-corruption legislation is to provide the Prosecutor General of the Russian Federation and subordinate prosecutors with the authority to control expenses in relation to this category of persons. The related issue is the declaration of luxury goods, jewelry and cash. Such mechanism can be considered as effective. Bodies, divisions and officials responsible for the prevention of corruption and other legal relations should carry out a constant analysis of incoming information, including the use of software and analytical systems. In this regard, it seems appropriate to provide Federal Laws No. 230-FZ and No. 273-FZ not only with the collection of relevant information and their analysis, but also their systematization, including automatically using modern software and technological solutions. This approach will highlight the priority areas of work to ensure control over the compliance of expenditures with revenues from legally established entities.
control, expenses, declaration, property, anti-corruption, legislation.
Tsirin A.M., Sevalnev V. V. The Procedure for Monitoring the Expenses of Certain Categories of Persons: Problems and Its' Solutions. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 7, pp. 152—161. (In Russ.) DOI: 10.12737/jrl.2019.7.13
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A. S. AVTONOMOV
doctor of legal sciences, professor
K. K. KORABLIN
Law Institute, Pacific National University, Khabarovsk 680035, Russian Federation
The article discusses the main milestones in life and scientific activitiy of one of the most famous Russian legal scholars M. N. Gernet who made an invaluable contribution to the establishment and development of Russian legal science. Though he was an eminent theorist of Russian and Soviet criminal and penitentiary law, a researcher of the criminal legislation of advanced European countries, a consistent opponent of the death penalty as the death penalty, he entered the history of Russian jurisprudence, primarily as the author of the famous fundamental publication The History of the Tsarist Prison. He had an amazing memory of a great connoisseur of the theory and practice in application of criminal and penitentiary legislation, a searching remarkable mind of the analyst, the highest moral basis and principles, which helped the scientist to leave an indelible heritage in national jurisprudence.
At the same time, M. N. Gernet was one of the few encyclopedic theorists of the early twentieth century who possessed extensive knowledge not only in jurisprudence, but also in history, politics, sociology, culture, and other spheres of science and social life. His active scientific, pedagogical, educational and social activities became a role model for many generations of lawyers.
The purposes and objectives of this scientific paper are to reveal the key aspects of the life path, pedagogical, scientific, creative, social activities of an outstanding Russian jurist M. N. Gernet, first of all, as the founder of the Russian pre-revolutionary and Soviet penal science. For this pupose his scientific works, publications of famous Soviet and modern Russian lawyers were analyzed, and on the basis of the received data, theoretical conclusions and generalizations were made. The specificity of the goals and objectives of the study are predetermined by the relevance, novelty and theoretical significance of the presented publication.
In preparing the article, dialectic, retrospective, functional, comparative legal, system-structural, statistical, logical and other methods of scientific knowledge were used.
The article concludes that M. N. Gernet is rightfully considered to be the founder and inspirer of national science of criminal and penitentiary law. He was one of the first in the USSR who generalized knowledge and centuries-old experience in the organization of prison affairs in Tsarist Russia, outlined key guidelines for a science-based approach to the study of the Soviet system of criminal punishment, played an important role in creating the state system for the scientific study of crime.
M. N. Gernet, criminal law, penitentiary law, criminology, crime, punishment, death penalty, imprisonment.
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