Contents of issue # 3/2022

■ STATE AND LAW IN THE MODERN WORLD: PROBLEMS OF THEORY AND HISTORY

References in Law-Making Acts: Technical and Legal Defects and Ways to Overcome Their Harmful Consequences

V. M. Baranov

Vladimir M. Baranov1, 2
1Nizhny Novgorod Academy, Ministry of the Interior of the Russian Federation, Nizhny Novgorod, Russia, baranov_prof@bk.ru
2Nizhny Novgorod Research Scientific and Applied Center “Juridical Techniques”, Nizhny Novgorod, Russia

Abstract. The article proposes the author’s definition of the concept of “reference in the act of lawmaking”, substantiates the doctrinal and practical necessity and value of this distinctive technical and legal means, and shows its relative independence in the system of legal technology.
The goals and objectives of the research are achieved through the application of the dialectical method, comparative methods, formal legal analysis of legislative texts.
Typical defects of the reference apparatus of law-making acts are outlined using concrete illustrations. It also formulates the main ways of overcoming their negative consequences. Keywords: law-making technique, legislative reference, normative unity, functional value of references in law-making acts, defectiveness of references in law-making, ways to overcome the harmful consequences of defective legislative references

For citation. Baranov V. M. References in Law-Making Acts: Technical and Legal Defects and Ways to Overcome Their Harmful Consequences. Journal of Russian Law, 2022, vol. 26, no. 3, pp. 5—21. (In Russ.) DOI: 10.12737/jrl.2022.025

Technogenic Processes and Trends in the Transformation of the State-Legal Identity of the Individual

G. M. Aznagulova

Guzel M. Aznagulova
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, agm09@mail.ru, https://orcid.org/0000-0001-7265-2399

Abstract. The ever-expanding and rapidly applying new convergent technologies — which cover nature, society and people’s consciousness — are accompanied by a radical transformation of the paradigm of state’s socio-political and cultural development. The creation of a global information space and uncontrolled flows of information cause profound changes in individual and public legal consciousness and legal understanding, which find their expression in the transformation of the identity of the individual and social communities. The crisis of human identity, which has become a political and legal problem, and its overcoming in order to form an all-Russian identity as one of the factors of state stability requires the use of the historical experience of the Russian Empire and the USSR in the state-building of a conflict-free multinational society. Since the last quarter of the last century social relations have been determined in a significant way by new technologies created on the basis of fundamental achievements in the field of natural and engineering sciences, the development of political and legal thought about a person and his activities. Being closely interrelated, these technologies are the means to expand the prospects of individual and social development; and to achieve a higher standard of living for people, that strengths individual feeling of belonging to the nation state. At the same time, they both open up fundamentally new ways of influencing the person himself and the environment and lead to significant changes in mental perceptions and subjective assessments of the relationship of the individual with the state, which directly leads to changes in the structure of state-legal identity. The search for the deep origins of the identity of a person generates the expediency of turning to the sphere of higher mental activity of a person.

Keywords: personal identity, state identity, national identity, technogenic processes, legal system, consciousness, legal consciousness, legal understanding, legal psychology

For citation. Aznagulova G. M. Technogenic Processes and Trends in the Transformation of the State-Legal Identity of the Individual. Journal of Russian Law, 2022, vol. 26, no. 3, pp. 22—34. (In Russ.) DOI: 10.12737/jrl.2022.026

On the Origins of Law from the Legal Anthropology Standpoint

A. A. Sheptalin

Aleksei A. Sheptalin
Udmurt State University, Izhevsk, Russia, sheptalin@list.ru, https://orcid.org/0000-0001-5442-6160

Abstract. The article examines the phenomenon of the origins of law as the beginnings of a fundamentally different regulator that arose in the new socio-economic conditions of the Neolithic revolution in a disintegrating kinship community. Unlike the former egalitarian regulator — the mononormatic — the emerging legal regulator was focused on securing the excess product to its producer, initially contributing to property and social differentiation, and later class and state formation. The author expresses a vision of the origins of law based on anthropological material and enters into a discussion about the common practice among domestic jurists of identifying the origins of law and law-forming factors.
The purpose of the article is an attempt to determine the origins of law as a conditional feature that separated the mononorms — the normative regulation of the egalitarian tribal society-from a qualitatively new regulator of the late tribal community, i.e. a quasi-legal procedure that was aimed at resolving permanent conflicts around the emerging private property.
The methodological basis of the study is the concept of multilinear neo-evolutionism, which allows for the correct generalization and use of ethnological materials on synpolitical primitive societies for the reconstruction of the preliterate past.
Using examples from the practice of Neolithic tribes, the transformation of the normative regulation of tribal society is substantiated as the origins of law. It was expressed in the emergence and development of the institution of intermediaries authorized by society to settle conflicts, as well as in the formation of permanent courts, which gave rise to precedent decisions. On their basis, fundamentally new legal customs were formed in terms of content and structure, aimed not so much at physical punishment as at resolving the conflict, paying a fine and material compensation.

Keywords: origins of law, genesis of law, mononorm, neolithic revolution, primitive court, judicial precedent, legal custom

For citation. Sheptalin A. A. On the Origins of Law from the Legal Anthropology Standpoint. Journal of Russian Law, 2022, vol. 26, no. 3, pp. 35—47. (In Russ.) DOI: 10.12737/jrl.2022.027

■ CONSTITUTIONAL AND MUNICIPAL LAW

Evolution of the Principles of Federalism in Russia in View of the 2020 Constitutional Reforms

L. V. Andrichenko

Ludmila V. Andrichenko
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, lvandr@mail.ru, https://orcid.org/0000-0001-5993-6282

Abstract. The article examines the development of the principles of federalism, first of all, in connection to the adoption of the Law of the Russian Federation on the Amendment to the Constitution of the Russian Federation No. 1-FKZ dated March 14, 2020 “On improving the Regulation of Certain Aspects of the Organization and Functioning of Public Authority”.
During the study, both general and special methods are used: formal-logical and comparativelegal methods, analysis, synthesis, comparison, generalization. These allows to reveal the essence, internal connections and correlation of the principles of federalism enshrined in the Constitution of the Russian Federation and to identify the features of a unified system of public authority.
The article proves that the constitutional principles of federalism are not just constitutional symbols, they are real ideas that underlie and determine the directions of development of the state-territorial structure of the country. The expansion of the catalog of the principles of federalism — produced as a result of the 2020 Constitutional reforms — is objectively conditioned and determined by the general context of Russian constitutional development. Along with the expansion of the list of principles of federalism, there is a process of their internal modernization by filling them with new content, including those, which are conducted through the development of federal legislation.

Keywords: Constitution of the Russian Federation, constitutional development, federalism, principles of the federal structure, public authority, civic identity, constitutional values

For citation. Andrichenko L. V. Evolution of the Principles of Federalism in Russia in View of the 2020 Constitutional Reforms. Journal of Russian Law, 2022, vol. 26, no. 3, pp. 48—59. (In Russ.) DOI: 10.12737/jrl.2022.028

■ CIVIL AND FAMILY LAW. ENTREPRENEURIAL LAW

Splitting of the Title Over a Share in the Capital of a LLC and Shareholder’s Rights and Its Consequences

S. A. Burlakov

Sergei A. Burlakov
sergei_burlakov@mail.ru

Abstract. The article discusses the mechanisms for controlling the composition of participants in a limited liability company when its share is transferred to third parties in addition to the will of the participant, i.e. when the share is transferred to the heirs of citizens and legal successors of legal entities that were members of the company during selling a share at public auction and separating marital shares.
Based on the analysis of legislation and case law, the author concludes that in the mentioned cases, after receiving a share, the acquirer thereof does not receive the rights and obligations conferred by it and does not automatically become a member of the company in the absence of the consent of other members of the company, when it is required in accordance with the company’s articles of association, that implies the division of the title over a share and shareholder’s rights. The author points out that such a division is dubious both from theoretical and practical points of view since it can inflict the company’s activities, jeopardise the acquirer of the share and third parties. It is noted that in the absence of the shareholder’s rights, the acquirer, firstly, is not entitled to participate in running the company that prevents making resolutions requiring unanimous decision of all the shareholders of the company. Secondly, the acquirer cannot exercise the rights and protect his legitimate interests before obtaining the status of the member. Thirdly, the specified division undermines the reliability of the data contained in the Unified State Register of Legal Entities.

Keywords: limited liability company, transfer of a share, consent to transfer of share, title over a share, shareholder’s rights

For citation. Burlakov S. A. Splitting of the Title Over a Share in the Capital of a LLC and Shareholder’s Rights and Its Consequences. Journal of Russian Law, 2022, vol. 26, no. 3, pp. 60—74. (In Russ.) DOI: 10.12737/jrl.2022.029

The Subordination of Claims in Bankrupt Cases from the Point of Good Faith  

O. A. Ryapolova

Olga A. Ryapolova
South Ural State University (National Research University), Chelyabinsk, Russia, ryapolovaoa@gmail.com

Abstract. The article is considering theoretical and practical aspects of the subordination of claims from the point of good faith.
The purpose of the study — to evaluate the origin of the subordination of creditors’ claims and the validity of its application — is achieved by solving problems of analyzing judicial practice, studying legislative and doctrinal sources on a given topic, identifying links with general principles of law, disclosing the principle of good faith as a legal category, and exploring ways to implement it in existing legal reality.
The tasks of the study are solved from the standpoint of positivist and natural law approaches. The analysis of the value discourse through the criteria of justice and interest is carried out; a number of empirical methods are used on the example of both real trials and legal modeling. The issue of delimitation of private law and public law is touched upon by the example of the insolvency institution (bankruptcy).
Conclusion: the emergence of a mechanism for the subordination of creditors’ claims is due to the need to implement the principle of good faith. The problem of violation of the balance of interests of the parties by the exclusion of the application of the mechanism of subordination in relation to certain categories of creditors is posed. A shift in emphasis from the status of the subject to the determination of the legitimacy of his interest is proposed. The prospect of using the mechanism under study is generally assessed as positive; a number of debatable issues to be resolved — including those within the framework of the doctrine — are identified.

Keywords: bankruptcy, affiliations, good faith, ranking of the creditor’s priorities, evasion of law, interruption of law, balance of interests

For citation. Ryapolova O. A. The Subordination of Claims in Bankrupt Cases from the Point of Good Faith. Journal of Russian Law, 2022, vol. 26, no. 3, pp. 75—87. (In Russ.) DOI: 10.12737/jrl.2022.030

■ LABOR LAW AND SOCIAL SECURITY LAW

Pension Rights Formation Issues of Persons Sentenced to Imprisonment

I. R. Mamatkazin

Ilya R. Mamatkazin
Perm State National Research University, Perm, Russia, dekart74@yandex.ru

Abstract. Pension provision in the form of an insurance pension or a state pension is the main type of social security. By its purpose, the pension is intended to be the main source of livelihood for the elderly and the disabled. This determines the importance of the issue of forming the right to a pension. The right to a pension is formed in the relations connected with socially useful work in its various forms. The connection of the pension with the previous work activity is a determining argument in the decision of the Constitutional Court of the Russian Federation on the unconstitutionality of the provisions of the pension legislation suspending the payment of pension when a pensioner is serving a sentence of imprisonment. Since the right to a pension is actually earned by previous work, it is unfair to deprive a person of the right to receive a pension in such circumstances.
The right to a pension is based on the existence of conditions for the appointment of a pension established by law, which are legal facts. The formation of the right to a pension largely depends on the nature of the future pension: whether it is related to work or not, it is financed from insurance premiums or from the state budget. The formation of the right to a pension is also connected with the peculiarity of the subject, the future recipient of the pension. At present, there is a significant gap in the current legislation in determining the legal status of persons sentenced to imprisonment in relation to their rights and obligations under mandatory pension insurance. When these persons are involved in compulsory labor, insurance premiums are paid from the amount of their remuneration. But the relations connected with the work of convicts are not considered labor relations by the Supreme Court of the Russian Federation, and the persons sentenced to imprisonment themselves are not listed in the legislation as insured persons. This situation negatively affects the formation of future pension rights, raises issues that are difficult to resolve in court practice.

Keywords: persons sentenced to imprisonment, formation of the right to an insurance pension, pension legal relations, mandatory pension insurance

For citation. Mamatkazin I. R. Pension Rights Formation Issues of Persons Sentenced to Imprisonment. Journal of Russian Law, 2022, vol. 26, no. 3, pp. 88—100. (In Russ.) DOI: 10.12737/jrl.2022.031

Limits of Individual Contractual Regulation of Labor Relations

J. I. Klepalova

Julia I. Klepalova
North-Western Branch, Russian State University of Justice, St. Petersburg, Russia, klepalova. yulia@yandex.ru, https://orcid.org/0000-0003-4842-3531

Abstract. The article examines the concept, meaning and limits of individual contractual regulation of labor relations.
The purpose of the research is to analyze the essence, meaning and limits of individual contractual regulation of labor and other relations directly related to them.
Various research methods from among general scientific ones have been applied, such as dialectics, analysis and synthesis, abstraction and concretization, comparison, etc.
Individual contractual regulation is a method of regulating relations in the labor sphere, carried out by the parties to an employment contract through individual contracts and agreements. It allows you to quickly resolve production issues, taking into account the needs of the employee, caused by family, social circumstances, and also increases the employee’s personal interest in work and its results, with its help it is possible to concretize general norms, taking into account the individual characteristics of each employee. The limits of individual contractual regulation of relations in the labor sphere are the possibilities of regulating labor relations without reducing the level of guarantees established by labor legislation, through the conclusion of individual contracts and agreements.
The author comes to the conclusion that the current labor legislation does not fully meet the current needs and interests of the parties to labor relations and requires changes, including in terms of expanding the scope of individual contractual regulation in the event that private rather than public interest prevails by expanding the scope regulation, but not a decrease in the level of guarantees in the world of work. An attempt is made to identify the trend towards the development of labor legislation to expand the scope of regulation by reducing the mandatory legal regulation, as well as the increasing role of contractual regulation. Presumably, labor law will develop along the path of increasing the flexibility of labor relations, but with the preservation of the social function of labor law.

Keywords: labor contract, agreement, individual regulation, discretion of the parties, limits of contractual regulation

For citation. Klepalova J. I. Limits of Individual Contractual Regulation of Labor Relations. Journal of Russian Law, 2022, vol. 26, no. 3, pp. 101—112. (In Russ.) DOI: 10.12737/jrl.2022.032

■ PROCEDURAL LAW

Cross-Border Enforcement of Court Decisions in the Guarantee System of Access to Justice

E. A. Fokin

Evgeniy A. Fokin
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, evgeniy.hse2018@gmail.com, https://orcid.org/0000-0002-1121-6830

Abstract. The subject of this study is the issues of procedural law that arose during the consideration of the case A40-45916/18 (No. 305-ES19-17404). Within the framework of this dispute, an application for recognition and enforcement of the Austrian court’s decision on debt collection was considered. The courts of the first and cassation instances refused to satisfy the application, but the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation canceled the judicial acts and sent the case for a new hearing to the court of first instance. The definition of the Judicial Board contains legal positions on the delimitation of competence between Russian and foreign courts, the delimitation of competence between arbitration courts and courts of general jurisdiction, the need for proper interaction between the court and the parties. The conclusions of the Supreme Court of the Russian Federation actualize the problems of giving legal force to foreign judicial decisions, and therefore deserve a thorough scientific analysis.
At the same time, the article is not limited to the disclosure of the legal position of the highest judicial instance, but seeks to consider the commented judicial act in the system of theoretical approaches to the recognition and enforcement of foreign judgments, as well as in conjunction with other practical positions of the Supreme Court of the Russian Federation.
Conclusion: individual theses of Ruling No. 305-ES19-17404 can be evaluated critically; the general idea of this judicial act deserves support — ensuring the availability of justice and the actual execution of a foreign court decision.

Keywords: recognition and enforcement of foreign judgments, competence of commercial courts, interaction between the court and the parties, access to justice

For citation. Fokin E. A. Cross-Border Enforcement of Court Decisions in the Guarantee System of Access to Justice. Journal of Russian Law, 2022, vol. 26, no. 3, pp. 113—124. (In Russ.) DOI: 10.12737/jrl.2022.033

Acceleration of Proceedings in Order to Increase the Effectiveness of Legal Remedy: European Experience

E. A. Somov

Eugene A. Somov
Arbitration Court of the Volga-Vyatka District, Nizhny Novgorod, Russia, jougine@yandex.ru

Abstract. A key aspect of the research of legal remedies is the question of whether it is possible to classify them as effective within the meaning of Article 13 of the ECHR. The prerequisite for the emergence of such legal remedies was the process of implementation of the ECHR provisions in ECtHR interpretation into national legislation. The analysis of domestic works devoted to the study of the institute of acceleration of proceedings shows that the researchers practically did not consider the foreign experience of legal regulation or the ECtHR case law. Meanwhile, one of the most important aspects of the study of domestic procedural law is the study of foreign experience of legal regulation and judicial practice.
The purpose of the study is to identify specific signs of an effective preventive remedy for the right to legal proceedings within a reasonable time, guaranteed by Article 6 of the Convention. To do this, it is necessary to solve the following tasks: to study foreign sources of legal regulation that provide analogues of such a remedy, including in their retrospect; to study their practical assessment in the case law of the European Court of Human Rights in terms of their effectiveness.
Research methods: general scientific (analysis, synthesis) and special (formal legal, comparative legal).
The results of this study are, firstly, obtaining scientific knowledge regarding the foreign experience of legal regulation of the institute of speeding up the case, and, secondly, the development of signs of an effective remedy necessary to assess the current domestic legal regulation and prepare proposals for its improvement.

Keywords: acceleration of proceedings, effective remedy, foreign legislation, European Court of Human Rights

For citation. Somov E. A. Acceleration of Proceedings in Order to Increase the Effectiveness of Legal Remedy: European Experience. Journal of Russian Law, 2022, vol. 26, no. 3, pp. 125—138. (In Russ.) DOI: 10.12737/jrl.2022.034

■ JUDICIARY AND LAW ENFORCEMENT

Institute of Non-Professional Popular Participation in Russian Justice of the XIX — early XX Century: Foreign and Volost Justice

A. V. Gavrilova, S. O. Gavrilov

Anzhelika V. Gavrilova1, Stanislav O. Gavrilov2
1, 2Law Institute, Kemerovo State University, Kemerovo, Russia
1Anzhik77@mail.ru, https://orcid.org/0000-0002-7957-1898
2gavrosh66@mail.ru, https://orcid.org/0000-0003-0748-1217

Abstract. Using the example of quasi-judicial bodies incorporated into the judicial system of Russia, the authors analyze the organizational and legal forms of non-professional participation of representatives of society in the administration of justice. The purpose of the work is a historical and legal study of the regulatory foundations, organizational structure, jurisdiction and functioning of quasi-judicial institutions, whose activities completely excluded the presence of professional legal personnel — foreign and parish courts. Research objectives: to study the causal conditionality of the preservation of non-professional public courts in the judicial system of pre-revolutionary Russia; the study of the content and evolution of popular representation in the administration of justice in the context of the transformation of administrative management and the judicial system of the Russian Empire; giving characteristics of the activities of quasi-judicial bodies from the standpoint of the anthropology of law. When performing the study, a set of comparative legal methods was used. The diachronic method made it possible to compare the normative foundations of popular participation in judicial proceedings in the period of the XVIII—XIX centuries. By means of the problem-chronological method, the essential features of the construction and functioning of quasi-judicial bodies incorporated into the judicial system of the Russian Empire are investigated. The formal legal method contributed to the analysis and interpretation of norms, the implementation of which led to the transformation of public representation, based on the goals and objectives of socio-cultural practices. Conclusion: in the conditions of bourgeois modernization during the Great Reforms of the second half of the XIX century, it was expedient to preserve quasi-judicial instances consisting of representatives of the local population. Their activities, in addition to saving state funds allocated for the functioning of the judicial system, ensured the gradual implementation of the imperial policy of legal acculturation of the local population, preservation of the political and legal isolation of the peasantry, legitimization of a new model of the state-legal structure of the outlying territories and decisions on property disputes that arose during the processes of bourgeois modernization of the agrarian sector of the economy.

Keywords: judiciary system, judicial proceedings, popular participation, foreign councils, volost courts

For citation. Gavrilova A. V., Gavrilov S. O. Institute of Non-Professional Popular Participation in Russian Justice of the XIX—early XX Century: Foreign and Volost Justice. Journal of Russian Law, 2022, vol. 26, no. 3, pp. 139—148. (In Russ.) DOI: 10.12737/jrl.2022.035

■ TOWARDS THE 100th ANNIVERSARY OF ILCL

Professor V. F. Yakovlev: An Outstanding Scientist, Organizer of Science, Founder of Arbitration Proceedings  Pdf 16

S. A. Sinitsyn, M. O. Diakonova

Sergey A. Sinitsyn1, Maria O. Diakonova2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
1synss@mail.ru
2dolovamaria@mail.ru

Abstract. The article is dedicated to the 90th anniversary of the birth of Veniamin F. Yakovlev, an outstanding statesman and Russian scientist, doctor of law, professor, corresponding member of the Russian Academy of Sciences, chairman of the Supreme Arbitration Court of the Russian Federation, retired. The scientist considered the profession of a lawyer, a teacher specializing in the development of problems of civil law and process, to be the main business of life and vocation. Major achievements of the scientist have significantly developed the theory and practice of civil law and the arbitration process. For the first time in Russian legal science, he revealed the functionality of the method of regulating civil law relations, substantiated the tasks of arbitration state courts in the administration of justice and their differences from arbitration. A necessary condition for the development of science, the scientist considered its practical orientation and value for solving the socio-economic problems of society and the state.

Keywords: classics of Russian civil law, procedural scientists, arbitration process, arbitration courts, civil law

For citation. Sinitsyn S. A., Diakonova M. O. Professor V. F. Yakovlev: An Outstanding Scientist, Organizer of Science, Founder of Arbitration Proceedings. Journal of Russian Law, 2022, vol. 26, no. 3, pp. 149—156. (In Russ.) DOI: 10.12737/jrl.2022.036

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