Contents of issue # 7/2022
Countering Corruption: Rational Picture and Architecture of Doctrinal Knowledge
T. Y. Khabrieva
Talia Y. Khabrieva
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, office@izak.ru, https://orcid.org/0000-0002-6190-6338
Abstract. The article formulates new tasks of the anti-corruption doctrine and practice. It pays a particular attention to the question of what accumulated knowledge on combating corruption constitutes. As a result, it is initiated to discuss: the qualification of this knowledge; the development of a general legal theory of anti-corruption activities; and the search for new opportunities for managing this sphere of public and state life. In order to systematize the accumulated knowledge, the paper formulates promising scientific research directions.
The axiology of anti-corruption activities is the field that is important to reveal. It is emphasized that combating corruption acquires: the features and “status” of the ideological, value and methodological basis for the construction of legal institutions; systematization of normative arrays; interpretation and application of legal norms; and achieving a balance of public and private interests in law.
The article carries out: analysis of anti-corruption constitutionalization processes and the legal formalization of the national anti-corruption standard of restrictions; and prohibitions and duties imposed on public officials. It is shown: how this standard links together the levels of public authority, its branches and institutions; and also allows one to correlate national regulation with universal standards.
The paper substantiates scientific component of the anti-corruption dynamics’ assessment and the effectiveness of anti-corruption measures taken by the state and the international community. Options for improving the methodology of such an assessment and the development of interdisciplinary research in this field are proposed.
Keywords: anti-corruption, Eurasian Anti-Corruption Strategy, axiological foundations of anticorruption activities, doctrinal knowledge of anti-corruption, legal theory of anti-corruption activities
For citation. Khabrieva T. Y. Countering Corruption: Rational Picture and Architecture of Doctrinal Knowledge. Journal of Russian Law, 2022, vol. 26, no. 7, pp. 5—18. (In Russ.) DOI: 10.12737/jrl.2022.069
Reform of Constitutional Review in the Soviet Union during the Perestroika (1985—1991)
J. L. Shulzhenko
Juriy L. Shulzhenko
Institute of State and Law, Russian Academy of Sciences, Moscow, Russia, constitution@igpran.ru, https://orcid.org/0000-0002-3106-2840
Abstract. The article is devoted to the analysis of the reform of constitutional review in the Soviet Union during Perestroika (1985—1991). It is one of the few that shows a positive result and receives its further application and development. The analysis of this reform, the identification of its main stages, the display of their characteristic features, specifics are of great theoretical and practical importance.
First of all, three main scientific research methods used are: dogmatic, historical-legal, comparativelegal methods.
The reform under consideration is characterized by two main points: the search for an optimal model of the system of constitutional control bodies; the course towards the creation of a specialized body in this area. The reform has a multi-stage character. The reform had a multi-stage character. At the first stage (December 1988 — the end of 1989), the functions of constitutional control at the level of the center were vested with the Congress of People’s Deputies of the USSR, the Supreme Soviet of the USSR, and the Presidium of the Supreme Soviet of the USSR. The Constitutional Supervision Committee of the USSR became the body of constitutional supervision. At the second stage (late 1989 — March 1990) the Committee of Constitutional Supervision was endowed with control functions and became a supervisory and control body. On the third stage (March-December 1990) the Presidium of the Supreme Soviet of the USSR lost its powers of constitutional control. On the fourth stage (December 1990 — the end of 1991) the powers of constitutional control were granted to the President of the USSR. Thus, at the level of the center at the end of the existence of the USSR, a four-tier system of bodies operated in this area: the Congress of People’s Deputies of the USSR, the Supreme Soviet of the USSR, the President of the USSR, and the Committee for Constitutional Supervision of the USSR. At the end of August 1991, it was supposed to sign the Treaty on the Union of Sovereign States, in which the main role in constitutional review was assigned to a new body — the Constitutional Court. The process of forming a system of constitutional review bodies at the level of the Union and autonomous republics began, where a course was taken to create a specialized body in this area — the constitutional (statutory) court. In the future, this approach was implemented in the Russian Federation.
Keywords: Constitutional Supervision Committee, Constitutional Court, constitutional control, constitutional supervision, constitution, Parliament, perestroika, President of the USSR, legal act
For citation. Shulzhenko J. L. Reform of Constitutional Review in the Soviet Union during the Perestroika (1985—1991). Journal of Russian Law, 2022, vol. 26, no. 7, pp. 19—31. (In Russ.) DOI: 10.12737/jrl.2022.070
The “Null Interpretation” of the Constitution: The Experience of Russia (Part One)
I. Marino
Ivan Marino
Observatory on the Political-Constitutional System of the Russian Federation, Naples, Italy, info@osservatoriorussia.it
Abstract. The article is focused on the vitally important problem concerning the modern Russian Federation Constitution maintaining at the beginning of the Nineties in the last century. The author tries his best in order to describe the procedure of the new Russian Constitution composing step by step and in detail.
The article contains very concentrated and concrete information about the debates aimed at the implementation of the new clauses into either the Russian Federation Constitution of 1993 or into the constitutional legislation of the state. The author wisely indicated the historical and legal specificity of that process, which has been relevant until now.
The goals of the author’s research are to underline the extreme necessity of the constitutional renovation effecting in Russia during the post-soviet period and onwards as well as to describe the resistance, organized and declared by some of the constitutional reforms opponents. The tasks of the author are to illustrate the measures and facilities were to be taken in order to realize the main goals of the constitutional reforms in Russia: to change the methods of governing, to enable the population to use their rights and freedoms in a proper way and to incorporate the world widely recognized standards of living.
The author used the scientific methods of research, such as: comparing, analyzing, using the results of the scientific practice, dialogue (survey), conversation, interviewing, observation.
The author comes to the conclusion, that the constitutional reforms in Russia could not be prevented at those times of the Russian history. The described constitutional reforms were natural and provoked by the economic and political situation, having been created in Russia by the beginning of the 1990s. The results of this research can be used for better understanding of nowadays regularities in the Russian Federation and its further development.
Keywords: Russian Federation, Constitution, constitutional reforms, Federal Assembly, Council of Federation, State Duma, Constitutional Commission, Constitutional Conference, debates, voting
For citation. Marino I.The “Null Interpretation” of the Constitution: The Experience of Russia (Part One). Journal of Russian Law, 2022, vol. 26, no. 7, pp. 32—47. (In Russ.) DOI: 10.12737/ jrl.2022.071
Subsidiary Liability in Corporate Legal Relations: Problems and Prospects
O. V. Gutnikov
Oleg V. Gutnikov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, oleg_gutnikov@mail.ru, https://orcid.org/0000-0003-4596-5669
Abstract. Recently, cases of assigning liability for the obligations of legal entities to controlling persons in a subsidiary manner have become more widespread in legislation and in judicial practice. These cases are so diverse and numerous that they risk to become not an exception to the principle of separate property liability of a legal entity and its participants (clause 2, article 56 of the Civil Code of the Russian Federation), but a general rule. This trend creates a danger of discrediting the very idea of doing business and other economic activities through a legal entity. The article analyzes the main features of the subsidiary liability of controlling persons for the obligations of a legal entity in corporate law and its differences from the general norms on subsidiary liability provided for in Art. 399 of the Civil Code of the Russian Federation. It is substantiated that corporate subsidiary liability is fundamentally different from subsidiary liability in the law of obligations, since it is designed for relations of corporate dependence, and not for relations between equal persons. These differences predetermine the essential features of corporate subsidiary liability, which are discussed in the article. The main types of corporate subsidiary liability are identified, which are proposed to be called “security” and “fraudatory”.
The purpose of the article is to identify and analyze the main problems of legal regulation, as well as to determine the prospects for improving subsidiary liability in corporate legal relations.
Research methods: general scientific methods (analysis and synthesis, induction and deduction, system analysis method) and methods of legal science (including methods of literal, systematic, teleological and historical interpretation of legal norms).
Conclusion: it is required to develop general provisions on corporate subsidiary liability and include them in the general part of corporate law (in Chapter 4 of the Civil Code of the Russian Federation). The relevant rules should establish the specifics of the procedure for the application of corporate subsidiary liability, including the distinction between its types (“fraudatory” and “security”) and the grounds for its application.
Keywords: corporate relations, separation principle, corporate subsidiary liability, security subsidiary liability, fraudatory subsidiary liability
For citation. Gutnikov O. V. Subsidiary Liability in Corporate Legal Relations: Problems and Prospects. Journal of Russian Law, 2022, vol. 26, no. 7, pp. 48—67. (In Russ.) DOI: 10.12737/ jrl.2022.072
Single Motherhood as a Social and Legal Phenomenon
N. N. Tarusina
Nadezhda N. Tarusina
P. G. Demidov Yaroslavl State University, Yaroslavl, Russia, nant@uniyar.ac.ru, https://orcid.org/0000-0001-8827-5532
Abstract. The article deals with the problem of single motherhood as a social and legal phenomenon. The emphasis is on characterizing the grounds for its occurrence and their specific legal consequences.
The objectives of the article are to identify and characterize the legal grounds for the emergence and forms of single motherhood, analyze the content and effectiveness of the relevant family law and related norms, suggest ways to optimize them, as well as clarify the practice of their application based on the balance of private and public interests in the field of motherhood (parenthood) and childhood.
As a result of the study, some historical aspects of the evolution of family legislation regarding single motherhood are identified. The legal and factual grounds for its occurrence are identified, which include: the birth of a child out of wedlock, accompanied or not accompanied by the establishment of paternity; divorce, aggravated by the restriction or exclusion of communication with the child of his / her father; restriction or deprivation of parental rights; widowhood; sole adoption / adoption of a child; surrogacy; motherhood in a situation of sex change (married or out of wedlock). A critical analysis of a number of family law norms regulating the establishment of paternity, the implementation of a fictitious record of paternity by the child’s mother, the divorce procedure (in terms of protecting the interests of the child and his/her mother), relations in the field of surrogate motherhood, etc. is proposed. This study expresses criticisms of trends in judicial practice regarding cases contesting surrogate mothers’ right of priority. A position is formulated regarding the gender context of disputes between parents about children, suggesting alternative approaches, including taking into account the social sensitivity of motherhood.
Keywords: single motherhood, family law, grounds for occurrence of single motherhood, legal positions of courts about surrogate motherhood, conflicts of interests between single mother and a child
For citation. Tarusina N. N. Single Motherhood as a Social and Legal Phenomenon. Journal of Russian Law, 2022, vol. 26, no. 7, pp. 68—84. (In Russ.) DOI: 10.12737/jrl.2022.073
Abuse of the Right in the Mechanism of the Exercise Rights and Performance of Duties by Subjects of Labor Relations
E. M. Ofman
Elena M. Ofman
South Ural State University (National Research University), Chelyabinsk, Russia, elena-ofman@yandex.ru, https://orcid.org/0000-0001-5456-1557
Abstract. Issues concerning defects in the mechanism for exercising subjective rights and fulfilling the duties of employees and employers determined by certain gaps in the legal regulation of labor relations have not been conceptually studied and resolved in labor law. The analysis of the behavior of an employee and an employer, taking into account their will, is an urgent problem, however, the qualified silence of the legislator about the volitional aspect of the labor relationship generates numerous and no less diverse judicial practice regarding the legality of the exercise by subjects of their rights and duties. The exercise of the right is initiated by the authorized person in order to satisfy his own interests either unilaterally without taking into account the interests of the counterparty, or with the consent of the opposing party to the legal relationship, or by agreement of the parties. At the same time, the choice of one or another behavior option is due to strong-willed decisions that may differ from different persons, and may not even coincide with the prescriptions established in regulatory legal acts, in connection with which the mechanism for exercising labor rights and fulfilling duties will develop according to a scenario not planned by the legislator. This contributes to the formation of unfair behavior of subjects of labor relations, leads to a wide “judicial discretion” and, ultimately, to the inefficiency of the mechanism for the exercise of subjective rights and performance of duties on the part of both the employer and the employee.
The purpose of the study is to prove that the abuse of law as a consequence of the vicious formation and expression of the will of the subjects of labor relations is a defect in the mechanism of their exercise of subjective rights and performance of duties. Tasks: to consider the forms of abuse of law based on the analysis of judicial enforcement acts; to establish the dependence of defects in the mechanism for the exercise of subjective rights and performance of duties on defects in the mechanism of legal regulation of labor relations.
Research methods: formal-legal, system-structural.
Conclusion: the abuse of the right is based on a defect in the mechanism of the exercise of subjective rights and performance of duties on the part of the employee and (or) the employer, generated by defects of will or expression, which in turn are caused by defects in the mechanism of legal regulation of labor relations (a gap, logical incompleteness of labor law construction, inconsistency of legal norms).
Keywords: mechanism of realization of right, mechanism of regulation of labor relations, defect of mechanism of realization of rights, defect of mechanism of regulation of labor relations, vice of will, abuse of right, employee, employer
For citation. Ofman E. M. Abuse of the Right in the Mechanism of the Exercise Rights and Performance of Duties by Subjects of Labor Relations. Journal of Russian Law, 2022, vol. 26, no. 7, pp. 85—101. (In Russ.) DOI: 10.12737/jrl.2022.074
Legal Issues of Providing Public Services in the Field of Migration
L. V. Andrichenko, I. V. Plyugina
Lyudmila V. Andrichenko1, Inna V. Plyugina2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
1cppi@izak.ru, https://orcid.org/0000-0001-5993-6282
2inna_wp@mail.ru
Abstract. An integrated approach to the implementation of the strategic goals and objectives of the Russian migration policy involves updating the tools of public administration through modern digital technologies, improving the quality of public services in the field of migration. To date, significant work has been done to expand the availability of public services in the field of migration, multifunctional and specialized centers are operating, some public services are provided in electronic format, preparations for a large-scale modernization of migration legislation are continuing. The next expected step will be the introduction of the super service “Labor Migration Online”, which allows to search for vacancies, conduct online interviews, and conclude employment contracts. At the same time, a number of problems remain, including those related to ensuring the territorial accessibility of the provision of public services, high corruption risks, the need for the applicant’s personal presence when providing public services through the Russian Portal of Public Services, etc. In the theoretical aspect, the question of whether all public services in the field of migration are inherently such or whether they are a manifestation of a control and supervisory function is debatable.
The purpose of the study is to assess the procedure for the provision of public services in the field of migration, identify the main legal problems and areas of improvement.
Research methods: general and special methods of scientific cognition, including formal-logical, formal-legal, comparative-legal methods, the method of special-legal research, etc.
Keywords: state services, migration, foreign citizens, Portal of state services of the Russian Federation
For citation. Andrichenko L. V., Plyugina I. V. Legal Issues of Providing Public Services in the Field of Migration. Journal of Russian Law, 2022, vol. 26, no. 7, pp. 102—114. (In Russ.) DOI: 10.12737/jrl.2022.075
The Concept of Interest in Financial Law and the Structure of Financial Legal Relations
N. V. Omelekhina
Natalia V. Omelekhina
Novosibirsk State University, Novosibirsk, Russia, n.onv@yandex.ru
Abstract. For modern financial law, which is at the stage of active formation of its subjectmethodological essence and dynamically developing legislation, it is of paramount importance to study and adequately reflect in financial legal norms the basic principles that define the foundations of legal regulation of financial relations.
The purpose of the article is to study the legal structure of interest in financial law and financial legal relations, since its adequate understanding and accurate reflection in legislation affects the actual state and development of social processes, social stability and well—being, the stability of society to external and internal challenges, its progressive progressive development.
Research methods: formal-logical, concrete-historical, structural-functional, etc.
Conclusion: interest in the composition of legal means of financial law is the basis of positive commitment, the formation of legal obligations. Within the framework of financial law as a public branch of law, state and municipal interests are of key importance, which are based on public interests, the interests of society as a whole, formed from a variety of private interests. Interest in financial law is a tool that ensures the quality and efficiency of public finance management by forming a meaningful balance of state, municipal and private interests reflected in financial and legal norms, determining the degree and scope of recognition by a public legal entity of public interests as state and municipal, which are guaranteed implementation and protection through law, including financial support. The role and significance of the category of interest are seen in the legal justification of public finance management processes implemented within the framework of financial legal relations, in the managerial impact of public finance on other areas of public administration, on the degree of satisfaction of public and private interests recognized by legislation. Ensuring the priority of satisfying state and municipal interests in financial law, in financial and legal regulation and legal implementation activities, their ambivalence, two-level nature and heterogeneity should be taken into account, which are reflected in the target orientation of financial legal relations.
Keywords: interest, financial law, financial legal relation, state and municipal interests, balance of public and private interests
For citation. Omelekhina N. V. The Concept of Interest in Financial Law and the Structure of Financial Legal Relations. Journal of Russian Law, 2022, vol. 26, no. 7, pp. 115—124. (In Russ.) DOI: 10.12737/jrl.2022.076
Causing Harm in the Healthcare Delivery as the Provision of Services that Do Not Meet Safety Requirements
A. A. Bimbinov
Arseniy A. Bimbinov
Kutafin Moscow State Law University (MSAL), Moscow, Russia, bimbinov@yandex.ru, https://orcid.org/0000-0002-7440-293X
Abstract. In the process of law enforcement activities in criminal cases initiated on the fact of improper provision of medical care, a large number of issues arise, most of which are resolved on the basis of general rules for the qualification of crimes and the appointment of penalties for them. The problem of distinguishing between the elements of crimes consisting in causing death or serious harm to health due to improper performance by a person of his professional duties (Part 2 of Art. 109 and Art. 118 of the Criminal Code of the Russian Federation) and the provision of services that do not meet safety requirements, including those that inadvertently caused serious harm to health or death of a person (Art. 238 of the Criminal Code of the Russian Federation). The author has made an attempt to establish criteria for distinguishing these types of crimes in relation to cases of harm in the provision of medical care. The established criteria can have a positive impact on judicial and investigative practice, including ensuring its uniformity in terms of the qualification of crimes.
The study included the study of published scientific papers on the problems of criminal liability of medical workers, statistics of medical crime, clarification and comparison of the norms of current legislation, as well as analysis of available materials of criminal cases initiated due to improper provision of medical care.
It is established that the main criterion for distinguishing the elements of crimes provided for in Articles 109, 118 and 238 of the Criminal Code of the Russian Federation is the characteristic of the object of encroachment. The object of providing services that do not meet safety requirements is the health of the population, which is a public relationship that develops about the correct organization of health care aimed at ensuring the well-being of citizens in an unpersonalized form, therefore, these relations can suffer only with the systemic nature of medical disorders, when there is a threat to the life or health of an indefinite circle of persons.
Keywords: iatrogeny, doctor, medical worker, qualification of crimes, criminal liability, causing death, medical error, medical error
For citation. Bimbinov A. A. Causing Harm in the Healthcare Delivery as the Provision of Services that Do Not Meet Safety Requirements. Journal of Russian Law, 2022, vol. 26, no. 7, pp. 125—136. (In Russ.) DOI: 10.12737/jrl.2022.077
Intellectual Property in the Digital Age: Issues of International Legal and National Regulation
N. S. Vorobuev
Nikita S. Vorobuev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, vorobev.ns@mail.ru, https://orcid.org/0000-0002-8785-920X
Abstract. Present article is devoted to some legal issues related to intellectual property in national and international law. Its relevance is due to the progressive development of public relations in the context of digital transformation and the emergence of potential risks in the presence of segmental legal regulation.
In this regard, the article sets the task to analyze the need for adjustment and / or modernization of the legal institution of intellectual property, as well as to identify the relevant problems and risks generated by the digital nature of new objects and processes. In this regard, the study draws attention to two main characteristics of the “digital component”: digital tools as a potential object or subject of legal regulation and as mechanisms for expanding legal opportunities for protecting the rights of subjects of intellectual property rights. Particular attention is paid to the role of national legislation in the improvement of international legal regulation.
Conclusion: there is no holistic theoretical study of issues within the process of digitalization of intellectual property rights subject to legal regulation, which indicates the need for further study of this institute by modern legal science.
Keywords: intellectual property law, digitalization, international public law, copyright, artificial intelligence, Berne Convention
For citation. Vorobuev N. S. Intellectual Property in the Digital Age: Issues of International Legal and National Regulation. Journal of Russian Law, 2022, vol. 26, no. 7, pp. 137—146. (In Russ.) DOI: 10.12737/jrl.2022.078
The Role of the All-Union Institute of Legal Sciences — the All-Union Research Institute of Soviet Legislation in the Systematization of Legislation in the Soviet Period
T. F. Yashchuk
Tatyana F. Yashchuk
Dostoevsky Omsk State University, Omsk, Russia, yashukomsu@mail.ru, https://orcid.org/0000-0002-2930-8557
Abstract. The systematization of legislation is considered as an activity to streamline and update regulatory legal material, which involves state bodies, special commissions and scientific institutions of a legal profile.
The purpose of the article is to show the role of the All-Union Institute of Legal Sciences (AULS) — the All-Union Research Institute of Soviet Legislation (AURISL) in organizing and carrying out work on the systematization of Soviet legislation. The following tasks have been solved: the place of the Institute among other scientific institutions engaged in the systematization of legislation has been established; the existence of appropriate competence has been revealed; the forms of involvement of individual employees in the work on the systematization of legislation have been identified; achievements in the development of the theory, history and practice of systematization of legislation are noted.
In the course of the research, an institutional method was used to establish the structure and powers of a scientific institution, an anthropological method for studying the subjects of scientific activity, a chronological method for building the sequence and connection of individual events.
As a result of the study, it was established that AULS was the leading institution for the codification of Soviet legislation, which prepared drafts of criminal, criminal procedure, civil and civil procedure codes. The powers of AURISL were significantly broader. He participated in the organization and execution of all types of work on the systematization of legislation: accounting of normative legal acts, consolidation, incorporation, codification; was engaged in the development of the theory of systematization taking into account domestic legal experience, foreign methodology and best practices. When drafting the code of laws of the USSR, the Institute was responsible for coordination with other scientific institutions, independently prepared several major legislative acts. AURISL acted as a theoretical, methodological, expert and advisory center for the systematization of Soviet legislation.
Keywords: history of law, history of legislation, systematization of legislation, Soviet law, Soviet legislation, history of science, legal scientific institutions
For citation. Yashchuk T. F. The Role of the All-Union Institute of Legal Sciences — the AllUnion Research Institute of Soviet Legislation in the Systematization of Legislation in the Soviet Period. Journal of Russian Law, 2022, vol. 26, no. 7, pp. 147—163. (In Russ.) DOI: 10.12737/jrl.2022.079
