A. V. MALKO, O. L. SOLDATKINA
A. V. MALKO, Saratov branch, Institute of State and Law, Russian Academy of Sciences, Saratov 410028, Russian Federation
O. L. SOLDATKINA, Saratov State Law Academy, Saratov 410056, Russian Federation E-mail: firstname.lastname@example.org
Construction of the digital economy, what is happening on the basis of the program "Digital Economy" is often voiced priority of the Russian government, but this program also introduces confusion in the theoretical developments on the subject. Of course, technology is developing rapidly, it means that law should become more flexible, but this should not mean isolation from science — decision making must be scientifically grounded, systemic, otherwise the government's efforts to introduce digital tools will be ineffective.
The main purpose of the research under the article is to justify the inclusion of digitalization of law among the priorities of legal policy. In accordance with the goal the authors solve the following tasks: the establishment of the structural elements of the concept of "digitalization of law" and its nature; development of the draft content of the concept of the digital direction of legal policy in the chosen field. Also highlighted and considered are the main sub-goals of the planned priority: rethinking the elements of law from the point of view of the digital age (for example, human rights); the study of some areas of the automation of the legal industry (for example, technologies big data and blockchain); analysis of the practice of the judiciary with information systems and the rationale for the need for legal transformation in this area.
The study is based on the general scientific (dialectical analysis, synthesis) and private research (formal-legal approach, the functional approach) methods in solving the problems.
All tasks in the course of the study are resolved. The authors substantiate the thesis that the inclusion of digitalization of law among the priorities of legal policy not only corresponds to public interests, but also makes it possible to streamline the theoretical developments of the phenomenon under consideration, to combine them with practice; the duality of the concept of “digitalization of law” (as the development of the “accompanying” law and the automation of the legal industry) is noted; a draft of the content of the scientific concept of legal policy in the chosen field is being prepared digital rights are explored; conclusions are drawn that the introduction of new technologies in the legal field should be accompanied by a deep study of their essence and capabilities; addresses the problems of digital transformation of the judicial system. The article also provides some practical recommendations on the restructuring of the special legal education of the Russian state; making amendments to federal legislation related to ensuring the digital rights of citizens and protecting large user data, creating data storage standards, official electronic data circulation, information exchange protocols in interagency transactions; fundamental digital “restructuring” not only of the executive authorities, but also of the judicial system, including the complete rejection of paperwork in favor of the initial existence of information in the form of data, rather than a document.
digitalization of law, digital law, legal policy, legal regulation of big data, blockchain, digital rights, digital transformation.
Malko A.V., Soldatkina O.L. Priorities of Russian Legal Policy and Changes in Law in the Context of Digitalization. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 9, pp. 5—19. (In Russ.) DOI: 10.12737/jrl.2019.9.1
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M. V. ZALOILO
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
Anticipatory law-making is considered in the article as a condition of the effectiveness of socioeconomic and technological development of the state. It is determined that the concept of anticipatory law-making is multifaceted, covers different types and levels of law-making: it can be regarded as anticipatory regional law-making on the subjects of joint jurisdiction in the absence of a federal law; anticipatory subordinate law-making, when in the absence of a higher (usually legislative) act regulating certain social relations, an act of lower legal force regulating these relations is adopted. In addition, we can talk about a higher degree of advanced reflection: anticipating the development of social processes and modeling of legal norms that can regulate the relations that will arise in the future. Anticipatory law-making is of particular importance in view of the trends of digitalization of public life.
Positive and negative features of anticipatory law-making are revealed using formal-legal, system methods, and the method of modeling. Such potential risks of anticipatory law-making as excessive and “aggressiveness” of legal regulation, unjustified coverage of the scope of other regulators (religion, morality, self-regulation), “replication” of laws, the invasion of sublegislative acts in the sphere of legislative regulation are noted. The instrument of legal monitoring carried out throughout the “life cycle” of the legal norm by a wide range of subjects can be used for the purpose of overcoming and preventing these risks.
law-making, anticipatory law-making, forecasting, legal experiment, legal monitoring, legal modeling, digitalization, law on normative legal acts, synchronization.
Zaloilo M.V. Anticipatory Nature of Law-Making and the Problem of Synchronization of Legal Regulation. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 9, pp. 20—29. (In Russ.) DOI: 10.12737/jrl.2019.9.2
Abramova A. I. Law Enforcement and Its Impact on the Development of Legislation. Zhurnal rossijskogo prava = Journal of Russian Law, 2015, no. 12, pp. 18—27. (In Russ.)
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I. N. BARTSITS
Institute of Public Administration and Civil Service, Russian Presidential Academy of National Economy and Public Administration, Moscow 119571, Russian Federation
The article is devoted to the disclosure of the meaning and content of the concept of "constitutional customs" in the theory and practice of public administration. Based on the study of specific examples of constitutional customs in a number of states the author analyzes their role and purpose in the development of society, law and culture.
The aim of the study is to form an idea of constitutional customs and constitutional traditions, their content and role in the theory of state building and the constitutional process on the basis of the analysis of scientific sources, the practice of constitutional design and modeling, the texts of the Constitution and other constitutional and legal norms.
Conducting an empirical study, the author uses the methods of comparative law, classifies and interprets historical data, law enforcement practice and, thanks to a systematic approach, synthesizes conclusions about the importance and role of constitutional customs and constitutional traditions in public administration.
Seven signs of a constitutional custom are selected and systematized (long standing, stability of the constitutional system and subjects of constitutional relations, absence of judicial protection, moral and morality of a constitutional custom, general recognition of obligation, constitutional significance, auxiliary (complementary) character)), allowing to consider the phenomenon in context, applicable not only in the British legal model, but also to constitutional systems of other states, as well as to differentiate it from such terms as “constitutional treaty”, “convention norm”, “constitutional habit”, “constitutional usage”.
Conclusions: a comparative analysis of the constitutional customs of different countries, the practice of their use allows us to speak about this term as an important part of the political culture and constitutional tradition aimed at ensuring a balanced and stable functioning of the system of state power through the tools of moral and political properties of influence (pressure) on the subjects of constitutional and legal relations.
сonstitution, constitutional customs, constitutional traditions, signs of constitutional custom.
Bartsits I.N. Constitutional Custom: Signs and Meaning. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 9, pp. 30—47. (In Russ.) DOI: 10.12737/jrl.2019.9.3
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V. A. DEMENTYEV
Administration of the Governor of the Moscow Region, Krasnogorsk-7 143407, Russian Federation
The article deals with the issues of primary elections in the context of their influence on the legitimization of the electoral process.
The aim of the study is to identify the main characteristics of primary elections, to analyze the most important characteristics of their conduction in the Russian Federation and to identify benefits and risks of primary elections.
Based on the analysis of the experience of some Russian political parties in conducting of primary elections, the author concludes that the main advantage arising from the preliminary voting is the early start of the election campaign at a time when potential candidates and electoral associations are not subjected to the restrictions established by the legislation. Despite the fact that the preliminary voting provides for all stages of a full-fledged election campaign, it is outside the framework of legal regulation, which leads to the creation of unequal conditions for election participants in terms of information impact on voters and the financing of the election campaign.
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municipal elections, electoral process, primaries, primary elections, political parties.
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O. A. BELYAEVA, P. P. KABYTOV, V. I. KUZNETSOV
O. A. BELYAEVA, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
P. P. KABYTOV, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
V. I. KUZNETSOV, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
Main idea of the article is predetermined by the negative trends observed in the sphere of the state defense order. They are expressed in the formation of ineffective and partly destructive legal mechanisms, administrative barriers, that is a consequence of the lack of conceptual theoretical understanding of these legal relations, the lack of balanced use of diversified legal means.
Aims and objectives of the study are to find the optimal combination of methods and means of private and public law in the legal regulation of the state defense order, the evaluation of the current legislation in terms of the presence of excessive requirements.
Methodological basis of the research consists of General scientific and special methods of cognition, in particular system-structural, formal-legal, formal-logical methods, method of interpretation of law.
Authors make an attempt of the weighed definition of a legal regime of the relations in the sphere of the state defense order. The main idea of article consists in the argument of a civil component of the analyzed legal relationship. At the same time, leaning on modern doctrinal views in assessment of goal-setting of contractual designs authors state specifics of these relations, need and inevitability of administrative and legal impact on them, but in strictly limited limits. Key thought — not opposition, and a combination of private-law and public influence, preservation of specific moderation of the public relations in the field of the state defense order. For an illustration of excess influence, not predicted consequences, negative scenarios of behavior of subjects authors critically estimate display of these relations in the system of measures of administrative responsibility. Authors come to a conclusion about existence of the discouraging effect of norms and need of use of alternative mechanisms of protection of the rights and legitimate interests of all participants of the relations by the state defense order.
administrative barriers, administrative responsibility, the interconnected contracts, the state defense order, purchases, the competition, the contract system, the principle of legal economy, the accompanied transactions, private-law method.
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I. V. BASHLAKOV-NIKOLAEV
Plekhanov Russian University of Economics, Moscow 117997, Russian Federation
The article discusses the problems associated with the absence in the Russian legislation regulating the procedure of decision-making by federal laws, the President of the Russian Federation, the Government of the Russian Federation that restrict competition and the lack in the legislation system of assessment of damage and estimation of compensation of such harm in making legitimate decisions that restrict competition. Such decisions are not subject to antitrust control. In the antimonopoly legislation of the Russian Federation antimonopoly control over acts, actions of the specified subjects isn't carried out. In this article the problems connected with absence in the Russian Federation of regulation of the order of making by the highest officials of the state and the federal legislator decisions (acts) limiting competition are considered on the example of the shipbuilding markets. Competition in certain markets in some cases is limited when making decisions (acts) by the specified subjects on the basis of which preferences (advantages) are provided to certain participants of the commodity market. Competition in the field of shipbuilding, in particular, may be limited when making lawful decisions on the construction of ships at specific shipyards and limiting the possibility of independent choice by customers of other shipbuilding organizations. It is noted that such decisions caused, in particular, need Russia's shipbuilding capacity in the face of what the markets of production of certain types of vessels are the world. In the case of decisions on the construction of ships in Russian shipyards, there are risks of increasing the cost of products, increasing the construction time and the inability to complete the construction of ships, the consequence of this may be a violation of obligations on the part of Russian shippers.
The author comes to the conclusion that the antimonopoly legislation does not contain the norms regulating the issues of compensation for damage arising from economic entities when the authorities make legitimate decisions on limiting competition and suggests ways to eliminate these shortcomings.
restriction of competition, protection of competition, compensation of damage, state preferences.
Bashlakov-Nikolaev I.V. Problems of Legal Support of Competition in the Russian Federation (on the Example of Shipbuilding Market Development). Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 9, pp. 73—79. (In Russ.) DOI: 10.12737/jrl.2019.9.6
Civil Code of the Russian Federation. Commentary on chapters 1, 2, 3. Ed. by P. V. Krasheninnikov. Moscow, 2013. 336 p. (In Russ.)
Civil Code of the Russian Federation. Commentary on chapters 1—5. Ed. by L. V. Sannikova. Moscow, 2015. 662 p. (In Russ.)
Laptev V. V. Modern problems of business (economic) law. Predprinimatelskoe pravo v XXI veke: preemstvennost i razvitie. 2002. 192 p. (In Russ.)
Petrov D. A. Sompetition law: theory and practice of application. Ed. by V. F. Popondopulo. Moscow, 2015. 318 p. (In Russ.)
Shipunov V. A. Antitrast regulation of the provision of state and municipal preferences. Finansovyy kontrol, 2012, no. 8, pp. 20—23. (In Russ.)
Varlamova A. The second antitrust package: the main novelties of the legal regulation of competition. Korporativnyy yurist, 2009, no. 12, pp. 3—7. (In Russ.)
A. F. NURTDINOVA, L. A. CHIKANOVA
A. F. NURTDINOVA, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
L. A. CHIKANOVA, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
The article is devoted to the analysis of procedural rules and their role in the employment relations regulatory mechanism. Procedural rules as the authors believe are very important during the existence of the employment relationship — since the conclusion of the employment contract till its termination. Procedural rules in labour law are rather specific due to employment relations features. First of all it is lasting character of the employment relationship. As a result various situations concerning professional activity as well as the exercise of the parties' rights arise. Employer's empowerments determine the subordinate position of employees. So noncompliance with procedural requirements including violation of established by law terms may cause impossibility of exercising employer's or employees' rights.
Despite crucial importance of procedural rules legislative authority unfortunately not always pays due attention to their consolidation in the law. Procedural rules as they established in the current labour law sometimes are indistinct. At times there are not any rules at all though they are vitally important to ensure the implementation of the rights granted to employers and especially — employees. This is a good reason for the study of the designated problem.
On the basis of analysis of the actual law and legal practice the authors formulate suggestions for improvement of legal regulation in the field of employment relations.
procedural rules, types of procedures, local statutory act, elected trade Union body, taking into account employee's position, employment contract, agreement of the parties, consent of the employee, transfer to another job, notice of employment contract termination.
Nurtdinova A.F., Chikanova L.A. Procedural Rules in the Mechanism of Legal Regulation of Labor Relations. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 9, pp. 80—99. (In Russ.) DOI: 10.12737/jrl.2019.9.7
Chikanova L. A. Personnel policy and methods of its implementation. Rights of employers in labor relations. Ed. by A. F. Nurtdinova, L. A. Chikanova. Moscow, 2009. 480 p. (In Russ.)
Chikanova L. A. Termination of the employment contract at the initiative of the employee. Khozyaystvo i pravo, 2010, no. 12, p. 55—61. (In Russ.)
Course of Russian Labor Law. Vol. 3. Ed. by Ye.B. Khokhlov. St. Petersburg, 2007. 656 p. (In Russ.)
Lebedev V. M., Melnikova V. G., Nazmetdinov R. R. Labor law: an experience of comparative legal research. Ed. by V. M. Lebedev. Moscow, 2018. 480 p. (In Russ.)
Orlovskiy Yu. P. Dialectics of the development of labor law: from the Soviet period to our days: selected works Yu. P. Orlovsky. Moscow, 2018. 776 p. (In Russ.)
Skobelkin V. N., Perederin S. V., Chucha S. Yu., Semenyuta N. N. Labor procedural law. Voronezh, 2002. 504 p. (In Russ.)
Tal L. S. Essays on Industrial Labor Law. Moscow, 1918. 227 p. (In Russ.)
S. M. ZYRYANOV
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
This article deals with the legal status of state controller in the structure of control and supervisory authority in terms of the consistency of the provisions of its legal position in relations with legal persons, individual entrepreneurs and citizens. Internal component of administrative and legal status of state controller determines its independence and, at the same time, control, focus on the achievement of specific targets, the ability to solve the problems. The research methodology is determined by the specificity of the chosen subject and includes a set of general scientific methods of scientific cognition (analysis, synthesis, comparison).
This article examines several essential elements of the status of official control and supervisory body, which have a negative impact on the efficiency and effectiveness of state control (supervision) and the achievement of the objectives of control and oversight activity.
The status of an official controlling and supervisory body of interwoven regulatory, supervisory, administrative and jurisdictional authority, in addition the official is involved in the development of mandatory requirements which it subsequently checks. As a result the official person starts to have personal interest in establishing deliberately impossible, unreasonably expensive, redundant requirements. The current system of assessing the efficiency and effectiveness of official control and supervisory body based on the “cane system”, distorting the official motivation, motivating to search for signs of formal violations mandatory requirements not affecting the safety and operations of the
scanned object. The necessity of harmonizing legislation on state control (supervision), legislation on administrative offences and on the order of consideration of addresses of citizens is justified.
state control (supervision) officer, supervisory authority, mandatory requirements, administrative responsibility, administrative offence, treatment of a citizen, legal person.
Zyryanov S.M. Administrative and Legal Status of an Officer of a Controlling and Supervisory Body. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 9, pp. 100—110. (In Russ.) DOI: 10.12737/jrl.2019.9.8
Afanasev V. G. Scientific governance of society: experience of systemic research. Moscow, 1973. 384 p. (In Russ.)
Averin M. S. Administrative oversight of industrial security in the Russian Federation. Cand. diss. Moscow, 2015. 151 p. (In Russ.)
Bakhrakh D. N. Public service: basic concepts, its components, content, principles. Gosudarstvo i pravo, 1966, no. 12, pp. 10—18. (In Russ.)
Bardach E., Kagan R. A. The Problem of Regulatory Unreasonabelness. Cambridge, 1982. 416 p.
Braithwaite J. To Punish or Persuade: Enforcement of Coal Mine Safety. New York, 1985. 216 p.
Butylina Ye. V. Land control and supervision. Cand. diss. Moscow, 2015. 204 p. (In Russ.)
Kolyazina A. V. State control and supervision in housing and utilities. Cand. diss. Saratov, 2018. 246 p. (In Russ.)
Lobel O. Interlocking Regulatory and Industrial Relations: The Governance of Workplace Safety. Administrative Law Review, vol. 57, no. 4 (Fall 2005).
Lunts M. G. From the history of factory law. Moscow, 1909. 395 p. (In Russ.)
Malysheva M. A. The theory and methods of modern government. St. Petersburg, 2011. 280 p. (In Russ.)
Mustafina-Bredikhina D. M. Administrative and legal regulation of state control of mandatory requirements for the quality of medical activities in Russia. Cand. diss. Moscow, 2018. 237 p. (In Russ.)
Perov S. V. Supervisory and Regulatory Functions of Federal Executive Bodies: Problems of Differentiation in the Context of Administrative Reform. Lex Russica, 2019, no. 2, pp. 69—80. (In Russ.)
Rossinskiy B. V. On the issue of reforming the federal executive branch. Administrativnoe pravo i protsess, 2004, no. 1, pp. 10—24. (In Russ.)
Smorodinova Yu. S. Control and supervision in the executive branch of the subjects of the Russian Federation (administrative and legal aspect). Cand. diss. Volgograd, 2015. 210 p. (In Russ.)
Tkach A. N. Administrative reform and business: outcomes, problems, prospects. Pravo i ekonomika, 2005, no. 4, pp. 3—17. (In Russ.)
Yakimov A. Yu. Status of the subject of administrative jurisdiction and problems of its implementation. Moscow, 1999. 200 p. (In Russ.)
Zaslavskaya N. M. Legal status of state environmental control officials. Ekologicheskoe pravo, 2011, no. 3, pp. 2—7. (In Russ.)
K. V. ANDRIEVSKII
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
In this article an attempt of the analysis of character of the standard instruction as the bases of classification of the tax modes is made. The solution of this problem achievement of a certain compromise in the ratio is the cornerstone of the national legislation and international treaties. At the same time, application of the tax modes on a joint of the national legislation and standards of the international tax treaties has to consider certain accents in "priority" of standards of the international treaty.
The purpose of this article is the research of the nature and classification of the tax modes as versions of financial and legal. Its achievement requires the solution of several tasks. First of all, considering levels of standard providing tax regime, it is necessary to estimate differentiation of precepts of law as the tax relations which are directly the cornerstone of tax and regime regulation, and indirectly concerning. Basic value in this case has also permission of a task of the analysis of legal designs which are structured in the Tax Code of the Russian Federation. Besides, for formation of complete idea of tax regime it is necessary to consider focus of the instruction of the tax law on the specific participant of tax legal relationship, and also existence of the corresponding object of the taxation.
A methodological basis of a research make set of the general and special methods of scientific knowledge. The main method is dialectic which promotes the objective analysis of the nature of tax regime in connection with character and the maintenance of a tax duty. It allows to consider objectives from positions of unity of their material contents and a legal form. A structural and functional method allow to analyse structure of norms and to prove presence of three levels of the legislative instructions regulating the tax modes. The special and legal method was used in the detailed analysis of a condition of legislative provisions.
Standard providing tax regime is guaranteed by several legislative levels: relevant standards of the Constitution of the Russian Federation; codified law; acts regulating execution of a tax obligation for regional and local taxes and fees. Basic requirements are the cornerstone of tax regime: definition of emergence, change and termination of an obligation for payment of tax or fees, execution of this duty; fixing of a concept of payments on which there is a tax duty; definition of the closed list of payments which make tax system and which emergence of a tax duty contacts; fixing of the closed list of elements of the tax mechanism; specification of the basic and facultative elements of each tax or fee. Regime ensuring execution of a tax duty is based on specification of the accounting of criterion of residence and territoriality. Tax jurisdiction of the state contacts not only the certain territory mediating emergence of an obligation for payment of taxes and fees but also focus on subjects of this duty. Application of the tax modes on a joint of the national legislation and standards of the international tax treaties is considered also by certain accents in "priority" of standards of the international treaty. The tax modes which are formed taking into account and due to standards of international treaties create a peculiar common denominator under the national tax law on a joint of residency and a non-residency of the same obliged person — the payer.
tax regime, general and special tax regimes, tax system, tax law, international tax agreements, criterion of residence, criterion of territoriality, tax jurisdiction, double taxation, internal and external (international) double taxation.
Andrievskii K.V. Classification of Tax Modes Depending on Character of a Standard Instruction. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 9, pp. 111—122. (In Russ.) DOI: 10.12737/jrl.2019.9.9
Anufrieva L. P., Podchufarova I. V. To the Question of the Concept “International Double Taxation”. Aktualnye problemy rossiyskogo prava, 2016, no. 11, pp. 85—102. (In Russ.)
Berezin M. Yu. Regional and Local Taxes: Legal Problems and Economic Reference Points. Moscow, 2006. 640 p. (In Russ.)
Denisaev M. A. Tax Relations with Participation of the Foreign Organizations in the Russian Federation. Moscow, 2005. 144 p. (In Russ.)
Kashin V. A. Tax Agreements of Russia. Moscow, 1998. 383 p. (In Russ.)
Kucherov I. I. Tax Law of Russia: Course of Lectures. Moscow, 2001. 360 p. (In Russ.)
Pelkova S. V., Sedov I. A. Ratio of the National and International Legislation for Avoidance of the Double Taxation. Mezhdunarodnyy zhurnal prikladnykh i fundamentalnykh issledovaniy, 2015, no. 2-1, pp. 142—144. (In Russ.)
Shakhmametev A. A. The International Factor in Legal Regulation of Taxes. Moscow, 2010. 216 p. (In Russ.)
Smirnov D. A. The Implementation Problems of the Principle to Determine the Russian Federation Tax Jurisdiction Depending on the Residence or the Territoriality. Vestnik Voronezhskogo gosudarstvennogo universiteta. Seriya: Pravo, 2011, no. 1, pp. 316—324. (In Russ.)
Tax Law: The Textbook for Higher Education Institutions. Ed. by S. G. Pepelyaev. Moscow, 2015. 796 p. (In Russ.)
Tikhomirov Yu.A. Theory of Competence. Moscow, 2001. 354 p. (In Russ.)
Tolstopyatenko G. P., Fedotova I. G. Tax Law of the USA: Terminology. Moscow, 1996. 272 p. (In Russ.)
N. N. KOVTUN
Nizhny Novgorod Academy, Ministry of the Internal Affairs of Russia, Nizhny Novgorod 603144, Russian Federation
As a direct subject of research in the work the legal nature, role and contribution of such an independent stage of criminal procedure in Russia as “Actions and decisions of a prosecutor in a criminal case with an indictment” (Chapter 31 of the Code of Criminal Procedure of the Russian Federation) are identified. The relevance of the work is conditioned by the fact that this stage of the internal structure of the criminal process actually turned out to be out of the attention of the modern doctrine of the Russian criminal procedure law. There is no certainty and methodological accuracy in understanding the essence of this stage, its teleological purpose, the range of tasks to be resolved, the interrelation of the stage with other proceedings and the stages of criminal proceedings in Russia.
The aim of the study is to substantiate the conclusion that both the normative and the factual this stage is an independent, integral stage of the internal structure of the criminal process in Russia, performing one of its most important tasks. For this purpose, the following specific objectives have been pursued and solved: 1) the thesis that this stage is an “independent part” of the criminal process in Russia is subjected to critical analysis and leveled; 2) it is proved that the normative and actual content of this stage reliably objectifies all the signs of the process stage with its goals, objectives, means of their resolution, structure; 3) it is justified that the essence of this stage: the formation of the public prosecution — the claim of the state to the court for the purpose of solving the main issue of the criminal case; the material-centric aspect is an act of bringing the accused to criminal responsibility.
General scientific methods of analysis and synthesis, systematic approach, methods of legal interpretation and logical-legal methods were used to verify these theses. The methodological basis of the work was the dialectical method.
The final result of the work concluded that the internal structure of criminal proceedings in Russia, the doctrine and practice are obliged to reconsider their approaches to this stage of criminal procedure, perceiving its purpose and essence as a significant, integral stage of the criminal process in Russia.
accused, criminal prosecution, indictment, прокурор prosecutor, the stage, stage criteria.
Kovtun N.N. Formation of Public Prosecution as an Independent Stage of Criminal Proceedings in Russia. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 9, pp. 123—137. (In Russ.) DOI: 10.12737/jrl.2019.9.10
Course of the criminal process. Ed. by L. V. Golovko. Moscow, 2016. 1278 p. (In Russ.)
Criminal Procedure Law of the Russian Federation. Ed. by P. A. Lupinskaya. Moscow, 2003. 797 p. (In Russ.)
Criminal Procedure Law of the Russian Federation. Ed. by Yu. K. Yakimovich. St. Petersburg, 2007. 890 p. (In Russ.)
Criminal Procedure Law. Ed. by V. M. Lebedev. Moscow, 2012. 1016 p. (In Russ.)
Criminal Procedure of Russia. Ed. by V. T. Tomin. Moscow, 2003. 821 p. (In Russ.)
Criminal Procedure of the Russian Federation. Ed. by A. P. Kruglikov. Moscow, 2009. 376 p. (In Russ.)
Davydov P. M. Charge in the Soviet criminal process. Dr. diss. thesis. Sverdlovsk, 1973. 47 p. (In Russ.)
Grinenko A. V. The criminal process. 2nd ed. Moscow, 2013. 334 p. (In Russ.)
Karneeva L. M. Criminal prosecution. Legality and validity. Moscow, 1971. 136 p. (In Russ.)
Leykina L. S. The identity of the perpetrator and criminal liability. Leningrad, 1968. 128 p. (In Russ.)
Manova N. S. The criminal process. Moscow, 2010. 398 p. (In Russ.)
Minkovskiy G. M. The end of the preliminary investigation and the right of the accused to the defense. Moscow, 1957. 211 p. (In Russ.)
Piontkovskiy A. A. On the concept of criminal responsibility. Sovetskoe gosudarstvo i pravo, 1967, no. 12, pp. 40—48. (In Russ.)
Podolnaya N. P. The activities of the prosecutor in cases with indictment. Cand. diss. thesis. Moscow, 1975. 23 p. (In Russ.)
Radko T. N. Questions of liability punishment in the light of the decisions of the XXVII Congress of the CPSU. XXVII Congress of the CPSU and the problems of legal responsibility. Ryazan, 1982. Pp. 3—18. (In Russ.)
Rossinskiy S. B. The criminal process. Moscow, 2009. 735 p. (In Russ.)
Samoshchenko I. S., Farukshin M.Kh. Responsibility under the Soviet legislation. Moscow, 1971. 240 p. (In Russ.)
Santalov A. I. Criminal law relations and criminal liability. Vestnik LGU. 1974, no. 5, pp. 128—132. (In Russ.)
Strogovich M. S. The course of the Soviet criminal process. Vol. 2. Moscow, 1970. 616 p.
The criminal process. Ed. by A. I. Bastrykin, A. A. Usachev. 3rd ed. Moscow, 2017. 415 p. (In Russ.)
The criminal process. Ed. by A. V. Smirnov. 4th ed. Moscow, 2008. 704 p. (In Russ.)
The criminal process. Ed. by O. I. Andreeva, A. D. Nazarov, N. G. Stoyko, A. G. Tuzov. Rostov-on-Don, 2015. 445 p. (In Russ.)
The criminal process. Ed. by V. P. Bozhev, B. Ya. Gavrilov. Moscow, 2017. 490 p. (In Russ.)
Zelenetskiy V. S. The excitement of state accusations in the Soviet criminal process. Kharkov, 1979. 144 p. (In Russ.)
A. A. KHAYDAROV
Kazan Law Institute (Branch), University of the Prosecutor's Office of the Russian Federation, Kazan 420111, Russian Federation
The article 29 of the Criminal Procedure Code of the Russian Federation specifies that the judge can give to the investigator permission only for seizure in a pawnshop. Thus a search in a pawnshop isn't specified in the list of investigative actions which are made according to the judicial decision. This leads to a controversial practice of obtaining by investigator the judicial permission to make a seizure and search in a pawnshop. The problem is that the criminal procedure law provides for a different procedure for obtaining such a permit. Often investigators conduct a search in the pawnshop in its decision without addressing to the court for permission to seizures in pawnshop. The investigating authorities and the operational units using this gap of the the criminal procedure law in their interests, substituting one investigative action to others.
Aim and objectives of the article: to study investigative and judicial practices of search and seizure in pawnshop; based on the theory of criminal proceedings and the provisions of the Criminal Procedure Code, to assess the legality of the practice of search in pawnshop without judicial decision.
The methodological basis of the research is materialistic dialectics. The author also used private-scientific methods of research of this problem: historical, system-structural, comparative legal, formal-logical, etc.
Conclusions. The issue of the protection of the constitutional rights of participants in criminal proceedings should not depend on the arbitrary choice by the investigator of the investigative action. Before making any changes in article 29 of the Criminal Procedure Code, p.5.1 part 2 of this article should be interpreted broadly, and a search warrant at the pawn shop made exclusively by judicial decision. Violation by the investigating authorities of Russian Criminal Procedure Code's provisions on seizure of items in the pawnshop by judicial decision should lead to the recognition of the protocol of a search and seized items (values) inadmissible evidence. It is proposed to amend article 29 of the Criminal Procedure Code, including in the powers of the court giving permission to search the pawnshop.
search, pawnshop, seizure, protection of the rights of entrepreneurs, inadmissible evidence, the powers of the court, the production of investigative actions on the court decision, judicial control.
Khaydarov A. A. Issues of Obtaining Permission to Search and Seizure in a Pawnshop by the Investigator. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 9, pp. 138—144. (In Russ.) DOI: 10.12737/jrl.2019.9.11
Drobinin D. V. On the problem based on the distribution of a search and a seizure as selfinventive investigations. Yuridicheskiy vestnik Samarskogo universiteta, 2017, vol. 3, no. 2, pp. 75—79. (In Russ.)
Khaydarov A. A. About guarantees of the rights of citizens to secret of correspondence, telephone and other negotiations in the context of determination of the constitutional court of the Russian Federation of 25.01.2018 No. 193-O. Vestnik Universiteta prokuratury Rossiyskoy Federatsii, 2018, no. 5, pp. 77—80. (In Russ.)
Khaydarov A. A. The illegal practice of fixing the personal correspondence of citizens on mobile devices// Ugolovnyy protsess, 2017, no. 5, pp. 36—41. (In Russ.)
Lapin Ye. S. The issues of seizure of things, laid, or deposited in a pawnshop. Contemporary legal science and law enforcement: collection of articles on materials of all-Russian scientificpractical conference held in the framework of the Second readings of the legal in Saratov (Saratov, May 28—29, 2009). Saratov, 2009. Pp. 325—327. (In Russ.)
Osipov A. V. Features of the legal basis of the search, seizure in respect of things pledged or deposited in a pawnshop. Actual problems of combating crimes and other offenses: proceedings of the XI international scientific and practical conference. Barnaul, 2013. Part 1. Pp. 172—174. (In Russ.)
Pilyushin I. P. Grounds and procedure of investigation in a pawnshop. Zakonodatelstvo i praktika, 2014, no. 1, pp. 58—61. (In Russ.)
Sheyfer S. A. Investigative actions. System and procedural form. Moscow, 2001. 208 p. (In Russ.)
M. V. PONOMAREV, F. V. TSOMARTOVA
M. V. PONOMAREV, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
F. V. TSOMARTOVA, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
During medical activity by-products are formed that carry risks for human health and the environment. At the same time medical waste along with some other types of waste that represent a greater epidemiological and toxicological hazard are excluded from the scope of the legislation on production and consumption waste with the aim of specializing their legal regimes in the direction of tightening. However due to the defects of the current legal regulation there is a paradoxical situation when the legal regime of medical waste is much softer than the rules established for ordinary municipal waste.
For the purpose of scientific development of the institute of medical waste, this article investigated the problems associated with the definition and legal classification of medical waste, the relation between medical waste and related categories such as health care waste, biological waste, production and consumption waste, branch affiliation of medical waste regulations, administrative and other types of liability for violations in this area.
The empirical basis of the study was legislative norms regulating relations in the field of medical waste management, explanations of authorized federal executive bodies that form law enforcement practice in this field, judicial practice, as well as international and foreign experience in managing medical waste management activities.
The result of the work was the scientific substantiation of an independent complex institute of medical waste. The authors proposed to distinguish between the legal regimes of non-hazardous medical waste, comparable to ordinary solid municipal waste, and hazardous medical waste. In order to avoid the multiplicity of classification systems for medical waste and their inconsistency taking into account the best international and foreign practices a special classification of hazardous medical waste has been formulated, better reflecting the specific risks associated with them and legal means aimed at neutralizing them.
As mandatory elements of the legal regime of medical waste are defined the following: rationing of their formation, accounting, licensing, obtaining permits, reporting, payment for negative environmental impact and measures of legal liability for violations in this sphere.
waste, waste from health-care activities, medical waste, waste from health-care facilities, pharmaceutical waste, biological waste, production and consumption waste, municipal solid waste, sanitary and epidemiological requirements, environmental requirements, environmental law, environmental legislation, environmental policy.
Ponomarev M.V., Tsomartova F.V. Legal Regime of Waste from Health-Care Activities. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 9, pp. 145—158. (In Russ.) DOI: 10.12737/jrl.2019.9.12
Analytical study of foreign experience in the implementation of legislative mechanisms to take into account the public opinion in the construction of infrastructure for the treatment of solid municipal waste. ILCL. Moscow, 2019. 40 p. (In Russ.)
Baranov V. M., Kuznetsov A. P., Marshakova N. N. Classification in the Russian legislation (theoretical and applied research). Moscow, 2014. 160 p. (In Russ.)
Borodina I. M. Medical waste as the object of civil rights. Bulletin of Volgograd state University. Series 5. Jurisprudence, 2014, no. 2, pp. 92—95. (In Russ.)
Chartier Y., Emmanuel J., Pieper U. et al. Safe management of wastes from health-care activities. World Health Organization. 2014. Available at: https://apps.who.int/iris/bitstream/handle/10665/85349 /9789241548564_eng.pdf?sequence=1 (accessed 08.04.2019).
Global strategy, burden of disease, and evidence and action priorities. World Health Organization, UNICEF. London, 2016. Available at: https://www.who.int/water_sanitation_health/facilities/ wash-in-hcf-london.pdf?ua=1 (accessed 08.04.2019).
Gromova G. A. Some problems relating to the legal regulation of disposal of the medical waste and administrative responsibility for violations regarding disposal of medical waste. Administrative and municipal law, 2014, no. 10, pp. 1031—1038. (In Russ.)
Khalfina R. O. General doctrine of legal relations. Moscow, 1974. 348 p. (In Russ.)
Melnikov A. V. Czech Republic: experience of medical waste elimination. Municipal Solidwaste, 2008, no. 3, pp. 43—45. (In Russ.)
Pogodina I. V., Baranova A. F. On medical waste management. Medical law, 2018, no. 4, pp. 33—37. (In Russ.)
Pruss-Ustun A., Rapiti E., Hutin Y. Sharps injuries: global burden of disease from sharps injuries to health-care workers. Geneva. World Health Organization. 2003. No. 3. 40 p.
Sorokina J. V. Trends in Realization of Citizens Right on Favorable Environmental Conditions: Medical Waste. Modern Law, 2014, no. 7, pp. 65—69. (In Russ.)
Subbotin A. L. Classification. Moscow, 2001. 94 p. (In Russ.)
V. V. VOYNIKOV
Law Institute, Immanuel Kant Baltic Federal University, Kaliningrad 236016, Russian Federation
The Eurasian Economic Union (EAEU) is a key component of integration processes in the post-Soviet space. Currently, the EAEU has competence mainly in the economic sphere, but further integration will require the development of cooperation in other areas, in particular in the field of crossborder movement of persons and the fight against crime. In addition, at present, the post-Soviet space outside the EAEU has accumulated some experience of interstate cooperation in the field of freedom of movement of persons and combating criminal activity.
The main idea of this work is to explore the existing mechanisms within the framework of Eurasian integration related to the provision of cross-border movement of persons and the fight against crime, and on the basis of the analysis of these mechanisms to consider the prospects for their further development, as well as the feasibility of integration into the legal system of the EAEU.
In the course of this study, the author was based on the scientific works of Russian and foreign researchers in the field of European law, the law of the EAEU, as well as on the analysis of relevant supranational and international legal acts. The methodological basis of the research is represented by traditional methods of scientific cognition: analysis, synthesis, induction, deduction, logical method, reflexive method, comparative legal method, method of legal interpretation.
The study allows us to conclude that the development of cooperation in the field of cross-border movement of persons and the fight against crime within the EAEU will be a logical continuation of the formation of the internal market of the EAEU. At the same time, the development of these areas of cooperation should be carried out outside the legal system of the Union, within the framework of international law with subsequent integration into the legal system of the EAEU.
European Union, Eurasian Economic Union, cross-border movement of citizens, fight against crime, Union State of Russia and Belarus, space of freedom, security and justice.
Voynikov V.V. The Prospects of Cooperation Development in the Field of Free Movement of Persons and Fighting Against Crime Within Eurasian Economic Union. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 9, pp. 159—171. (In Russ.) DOI: 10.12737/jrl.2019.9.13
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A. E. POSTNIKOV
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
L. K. TERESHCHENKO, O. E. STARODUBOVA
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation