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No 10 (2016)

CALLING CARD

9-14 445
Abstract
Review. The article deals with the influence of changes taking place in the modern world order on state institutions and law. Relevant trends inevitably determine the development of the content and character of higher legal education in specific countries at the regional, continental and global levels. These tendencies are described from the perspective of establishing and developing higher legal education in the Tyumen Region - namely, in the Tyumen oblast that has celebrated its 30th anniversary, Khanty-Mansi and Yamalo-Nenets Autonomous Areas. The paper explains origins and reasons of establishing in 1985 the Law Department and then the Law Faculty at the Tyumen State University when at a certain stage one of the fastest growing parts of the territory of the country faced with the shortage of legal personnel. The Faculty gave a new look to the University and the region and played a significant role in their lives. A lot of Law Faculty graduates have achieved considerable success, work in federal and regional authorities and local self-government bodies, in large and medium sized businesses. The author focuses on describing the State and Law Institute that was formed in 1999 when the former Faculty of Law and the independent Faculty of Political Sciences established in the mid 90's were united. The paper is showing its initial and modern structure, the composition of the scientific and pedagogical staff, training areas and specialty, master's programs, two of which are double degree programs implemented in cooperation with foreign universities, scientific, expert and grant activities, the Dissertation Council work, international contacts and cooperation, academic legal journals published in English and aimed at overseas audiences, participation in international professional associations, achievements and accomplishments of students. Considerable attention is paid to a new stage and new tasks of the Institute in connection with the University being accepted on a competitive basis to the Group of 21 universities within the framework of the special program "5-100" implemented by the Ministry of Education and Science of Russia on the basis of the Presidential Decree. At the beginning of a new phase and new search for opportunities, the Institute percepts its main task as maintaining major basic trends in the development of higher legal education.

A STUDY OF RUSSIAN STATEHOOD

15-28 2277
Abstract
Review. Effective national security depends on many factors. A theoretical and methodological basis developed by scholars is essential for the understanding of a national security phenomenon in a domestic science and its normative institutionalization. The role of legislation in the sphere of national security is associated with providing conditions for efficient functioning of a state in today's rapidly changing world. Currently, the Russian Federation commands a legal system ensuring national security. However, adoption of regulatory legal acts failed to solve the majority of theoretical and legal problems concerning regulation of issues of national security. Duplication (overlapping of powers), lack of consistency, inconsistency and pretentiousness are the faults most often named. Since the mid 90s of the 20th century an objective necessity appeared to develop a new paradigm of security for the Russian Federation in the light of a new understanding of its national interests and strategic priorities system. The formation of Russian national security paradigms and development of the concept and strategies have already passed four stages. In general, the security paradigm can be implemented as either the paradigm of protection or paradigm of self-affirmation. A "protective" context became the main characteristic of the first three stages of the paradigm of Russia's national security. The main provisions of the National Security Strategy of the Russian Federation up to 2020 indicate changes in the paradigm of security and implementation of a self-assertion paradigm that is aimed at development. Among innovative ideas of the National Security Strategy we can see the inclusion in the definition of the national security definition, as well as in the "text" of the document itself, a conceptually important category of "sustainable development." Enacted in 2010 the Federal Law "On Security" undoubtedly became a major step forward as compared with the analogous law of 1992, but it has not secured a specific innovation strategy of national security and, furthermore, outlined challenges and gaps in the security legislation in the Russian Federation. First, it is differences in concepts, and often the lack of a unified conceptual framework in the field of providing national security. Therefore, in order to strengthen national security of the country the current legislation should be monitored on the basis of academic expertise and theoretical developments.
29-42 481
Abstract
Review. The paper examines the problem of relationships between public owners in the property area. Contemporary methodology of understanding public property is based on the civil law constructions and axioms that cannot always be applied in the sphere where public interests are realized and public functions are performed. The author on the basis of synthetic generalization of phenomenological characteristics of public property, the norms of the current legislation in this area of Russian legislation and the practice of its application, as well as different scientific opinions, concludes that the nature of the relationships of public owners with other owners cannot be regulated by means of the principle of legal equality of parties to business transactions that has developed in the field of civil law. This is explained by the fact that public owners and private owners have different grounds for personification of their legal personality: while private property owners in civilian turnover are personalized by means of views concerning their property, public property owners are personalized through the nature, scope and orientation of public authorities. At the same time, the interrelation of public property owners among themselves in property relations is mindful of the fact that the public owners the basis of personification is the same, and, thus, such cooperation is based on the idea of the constitutional equality of public property owners that is based on the federal nature of the Russian State. Constitutional equality of public property owners in their proprietary interrelationships with each other, though they have some resemblance to the legal equality as the principle of civil law relations, is based on an essentially different social foundation. The constitutional equality of public entities in this context does not imply as a mandatory attribute the exchange of material benefits, and when such an exchange takes place, its goals, to any extent, are aimed at the social welfare that serves as the center of public interests rather than exchanged objects of public property - i.e. the public authorities with a view to exercise it more efficiently, which is insured by means of transferring required public property.
43-49 434
Abstract
Review. The article highlights scientific and methodological aspects of the experience the Department of Constitutional and Municipal Law of the Institute of the State and Law at the Tyumen State University gained in the field of collective research with regard to the right to participate in managing state affairs guaranteed under Art. 32 of the Constitution of the Russian Federation. The author describes the evolution of the Department methodological approaches to the named topic: starting with writing monographs to carrying out complex interdisciplinary projects financed by Russian scientific foundations. The Paper presents a review of the subject. However, it highlights the major theoretical approaches to the study of the citizens' access to the state management. The paper is structured in accordance with three major areas of research: procedural interaction between the civil society and the state in a mixed "state-public area"; the access of individuals to exercising foreign policy of the state; and meaningful expression of discontent of citizens with decisions and actions of public authorities.

ECONOMICS AND LAW

50-65 501
Abstract
Review. Economic freedom in a market economy is a fundamental prerequisite for fair distribution of wealth and the citizens' confidence in public institutions. The sequence of formation of steady, transparent and secure mechanisms ensuring implementation of rights and freedoms of business activity creates an "economic freedom" public good that acts as an imperative of optimizing the balance of interests. Benefits and costs arising in the process of economic freedom specification form the institutional environment of interactions between economic agents. The aim of the research is to apply an interdisciplinary approach to the institutionalization of economic environment for the period 2000-2014 in terms of theoretical, econometric, statistical and legal interpretation. The accepted economic theory that traditionally extends epistemological and axiological aspects focuses on essentially homogeneous normative judgements. However, provided such an approach is necessary, it is associated with a rather broad intuitive perception of the category of economic freedom. Thus, to clarify the category subordinate characteristics and principles of a free market are added. In the absence of a generally accepted universal definition the difficulties of measuring economic freedom escalate. While the content of the category, definition and concept are being discussed, scientific and research centers offer applying empirical mathematical modeling procedures of indicators. Formal differences between measurement techniques are limited to the number of parameters being monitored, grouping indicators, integral index components, dimension of the measurement scale and differentiation of countries in accordance with the quality of their institutional conditions. The author gives a forecast of the dynamics of the index of economic freedom for the economy of the Russian Federation until 2020. In the course of the analysis the author concludes that economic freedom status, even though it creates favorable environment for business, it is not a sufficient condition for the growth of the national economy. An assumption with regard to the dependence of per capita GDP upon the size of "market" taxes and the level of economic freedom has been statistically confirmed in 2006, 2007 and 2014. The paper examines the standards that can be attributed to the support of freedom of economic relations and legally enshrined in the new Russian legislation governing the freedom of entrepreneurship and development of competition. The author considers in detail legal rules and norms that guarantee the right to property as a relatively new standard in legislation and "weak" point in the structure of economic freedom components. The author's unique analytical approach that provides for structuring institutional aspects of economic freedom gives reason to identify theoretically important findings and to evaluate barriers to the development of the market.
66-76 459
Abstract
Review. The purpose of the research is to evaluate the entrepreneurship sector with regard to its completeness with institutions and their efficacy. The model of entrepreneurial institutions has been developed. It includes informal constraints, namely: natural laws, laws of enterprise, social norms (religious and social). Formal rules include normative regulations of different levels of legal significance and legislative organizations. They also include structures that enforce social norms and formal rules. The area of entrepreneurship regulation is replete with the requisite tools. It is dominated by the rules governing commercial enterprise, while a non-commercial enterprise is paid much less attention. The effectiveness of the implementation of formal rules is not high enough. The fines paid for the violation of labor legislation, fire safety and antitrust legislation prevail in the structure of the fines paid to the RF federal budget. Factors: tightening the rules of entrepreneurial activities; an insufficiently rapid process of adopting and implementing legislative acts; contradictions of the rules of law; lobbying interests of big capital by the state; increased number of participants in the procurement process. Organizations that facilitate enterprise development are inefficient; the majority of entrepreneurs do not take part in their activities. In Russia "subsidy" enterprise is being developed, there are no fundamentally innovative initiatives to facilitate the "rules of the game" on the market. Supporting big business, the state is increasing restrictive legislative framework for small businesses declaring "emancipation" of entrepreneurial initiatives. In fact, distrust is growing between small business and the government. The government should focus its work on developing entrepreneurial thinking of people, motivating people to set up their own businesses simultaneously reducing the level of bureaucracy in law-making, improving the business environment by implementing the policies that support effective demand of the population.

THEORETICAL PROBLEMS OF BRANCHES OF LAW

77-87 462
Abstract
Review. The article disproves an opinion that is widespread in the science of family law that the legal status of the parents does not depend on whether they have registered their marriage, and if parents are not married to each other this does not affect the rights of the child. The author analyses the peculiarities of legal regulation of relations when the marriage between the parents is either registered or not registered, as well as other correlations with the fact of marriage registration. The author enumerates and summarizes the differences in the grounds for acquiring a legal status of a parent, peculiarities of exercising parental rights and performing parental duties. The author justifies the opinion that it is necessary to change a prevailing approach to understanding the ground for parental relationships. The author highlights advantages and disadvantages of the existing procedure of registration of parental rights and the birth of the child including assisted reproductive technologies. The paper defines the meaning of the fact of the marriage registration in determining the legal status of underage parents and applying specific rules with regard to the participation of underage parents in the upbringing of children. The author examines effective and "broken" legislative rules in the sphere of protection of the interests of children and parents upon termination by the parents their matrimonial relations. Particular attention is paid to the problems of enforcement of parental duty to provide maintenance to a child in the context of the conflict of interests of a child and a spouse of a parent who is not his or her second parent. The paper demonstrates the points of intersection in legal regulation if the payer of maintenance or alimony is acting in two specific family law statuses - namely, as a parent and a spouse. As a result, the author concludes that it is necessary to strengthen the legal status of children born out of wedlock and their parents. The author proposes directions of scientific research aimed at achieving the balance in protecting the interests of the participants of parental relations, as well as recommendations for improving enforcement practices and reforming family law in the sphere of protection of the rights of parents and children including laws on child maintenance.
88-96 508
Abstract
Review. The paper analyzes changes in the legal institute of state environmental supervision introduced since January 1, 2015 Federal Law dated July 21, 2014 № 219-FZ «On amendments to the Federal Law "On environmental protection" and certain legislative acts of the Russian Federation ". Purpose: to assess legislative innovations in terms of their adequacy, effectiveness and coherence. Methods: in the course of the study the following general scientific and specific scientific methods of scientific knowledge were applied: dialectical method, formal logical method, formal legal method, comparative law method, legal drafting method. Results: the author concludes that a law-maker failed to avoid numerous legal gaps and conflicts of law when updating environmental legislation. In particular, peculiarities of organizing and conducting inspections when carrying out State environmental supervision (except for such a category of inspection as land inspection) were not defined. Identifying an adversely affected object as an object of state supervision causes difficulties when separating powers of federal and regional authorities of competent jurisdiction. It is obvious that one business entity can operate several objects that meet different requirements - namely, of federal and regional supervision. Accordingly, new rules will not only result in an increase number of inspections and audits held by authorities of different levels. Uncertainty in the area of separating powers regulatory authorities in practice would cause the next wave of cases with regard to challenging actions and decisions made made as a result of inspections and audits. The author considers that the abolition of rules preventing the duplication of audits was absolutely ungrounded. The introduction of new criteria for differentiation of objects of supervision requires updating of lists of facilities that are subject to federal environmental supervision. Such work has not been carried out by authorized authorities so far raising doubts concerning the legitimacy of inspections and audits carried out since July of the year 2015. Conclusions: identified gaps and conflicts should be eliminated as soon as possible. Otherwise, the reform of the state environmental management will not be put into practice.
97-104 498
Abstract
Review. The problem of criminal liability of legal entities has been widely discussed in the Russian legal doctrine from the very beginning of democratic reforms in the 1990s. One of the projects of the Criminal Code provided for criminal liability for committing environmental crimes. However, the scientific community has categorically rejected this idea on the ground that legal entities cannot apply the fundamental principles of criminal law due to the fact that a legal entity does not possess consciousness and will. One of the problems faced with by scientists in developing the concept of criminal liability of organizations was the list of crimes where a legal entity may act as a subject. Some authors believe that it is possible to determine general conditions of liability of legal entities, and a list of relevant crimes can be left open. Such an approach, for example, has been implemented in the draft federal law prepared by the Investigative Committee of the Russian Federation. Other authors consider it necessary to make such a list exhaustive. This position is stated, for example, in Draft Federal Act № 750443-6. In the article, it is proposed to generate an exhaustive list of offenses for which a legal entity may be held criminally responsible in accordance with the following criteria: 1) a crime must correspond to the legal nature of a legal entity; 2) a legal entity shall be an actor, rather than an instrument of committing a socially dangerous act; 3) offenses of legal entities should be of heightened public danger; 4) the list should include the most commonly committed by organizations socially dangerous acts; 5) an international treaty providing for the possibility of establishing criminal liability for legal entities.
105-115 1717
Abstract
Review. The article reveals the conceptual idea of the grounds for liability with regard to criminal complicity under criminal laws of Russia. It is argued that responsibility for criminal complicity is based on a combination of basic provisions of two theories - namely, the theory of "complicity" and the theory of "autonomy" of responsibility of accomplices, and complicity itself is possible only if there are grounds for responsibility of a crime executor, on the contrary, exclusion of liability of the executor makes impossible the responsibility of others according to the rules of complicity, which, however, does not preclude their independent responsibility for criminal acts committed personally. On the basis of the criminal law, theory and judicial practice the author draws a conclusion with regard to a consistent understanding of principal features of complicity in a crime, shows their role in solving specific questions of classification of crimes committed in complicity, such as: features of causality in complicity cases, temporary complicity borders, complicity in crimes with two forms of guilt, form and content of the guilt of accomplices, "failed" complicity.

PUBLIC INTERNATIONAL LAW

116-125 970
Abstract
Review: The role of international law regulation of different relations is rapidly increasing in the modern era of globalization. As a result, we are witnessing hot debates concerning the phenomenon of supranationality that has recently appeared in the sphere of international relations and its relation to the category of state sovereignty. This phenomenon triggers a lot of changes in the sphere of legal regulation of relations on a global scale. With regard to the question of the influence of supranationality on the sovereignty of a state, the author concludes the following. Observing the transfer to the bodies of an international organization only certain sovereign powers carried out by member states as a result of "supranationality", we are witnessing the deformation of notions of sacredness and the absolute sovereignty of a state in its classical meaning. As a result, there is a risk of de facto state sovereignty limitations in terms of its completeness and absolute character. In addition, as a result of the analysis of researchers' opinions with regard to the named issues and identification of main features of supranationality, the author concludes that the most preferable model out of two existing models is a non-institutional model that embodies, in author's opinion, extraorganizational contractual form of international integration. Currently there is a trend of increasing the role and impact of international law in a national legal system not only in the area of trade regulation, but also in other fields (for example, in the field of treating spent nuclear fuel and radioactive waste). As a result, the existing legal systems are being harmonized, which results in diminishing the uniqueness and identity of states and peoples that are indispensable requirements for ensuring their national security in the modern world. Supranational legal regulation takes place, inter alia, under the auspices of protection of human rights and freedoms. However, such a slogan apparently serves only as a formal facade of an international legal movement, and, apparently, it has no right to exist because of an equal and indivisible existence of three groups of interests "personality-society-state". The author concludes: to resist the named processes that exclude the progressive development of countries and peoples and their prosperity, states should ensure a reasonable combination of tools of national and international legal regulation that do not allow mixing spheres of their actions, and to develop internal mechanisms for protecting rights and interests of participants of social relations.
126-130 898
Abstract
Review. In view of the increasing mobility of citizens and expansion of humanitarian exchanges between France and Russia there is a growing need in establishing a legal framework for bilateral cooperation. Accordingly, the subject of this article is to study the international legal framework for the provision of legal assistance in civil and commercial cases between the French Republic and the Russian Federation. Three main groups of sources of international legal regulation are analyzed. The first category includes contracts covering practically all aspects of legal assistance in civil and other types of cases. The second group consists of international treaties regulating certain kinds of and/or form of legal assistance. The third group comprises international instruments directly regulating other issues but containing certain provisions on legal assistance. Some conclusions are drawn on the basis of the analysis. First, contractual relationship in this area have had a long history and are characterized by long ago established legal relationships. On the other hand, legal assistance issues are resolved only partially, so international contractual cooperation requires further development and improvement. Since the French Republic and the Russian Federation belong to the states of the Roman-Germanic legal system, the most suitable mutual cooperation might be the conclusion of a bilateral treaty covering the basic types and forms of international legal assistance. Legal cooperation can be continued with account for European Union approach to this issue.

COMPARATIVE LEGAL STUDIES

131-141 1314
Abstract
Review. Forming market relations, a Russian legislator seeks to adapt previously developed principles of fulfillment of obligations to current conditions with account for international experience. This article considers some provisions, typical for countries of the Romano-Germanic legal family, which include "some general principles, that the legislator has not fleshed out in a positive norm," and Russian legislation based on judicial practice and enshrining "principles of law, possessing the highest authority and being the criterion and measure of the legality of all legislative instruments." The authors research scientific standpoint on the essence and value of the principles of law coinciding with the position of German civil law scholars and practitioners. The authors also conduct a comparative analysis of the principles of performance of the obligation, the principle of good conduct of the subjects, peculiarities of limiting the principle of substantive performance of an obligation, withdrawal from an agreement (refusal to perform a contract) or from exercising the rights under the agreement, the principle of cooperation, the principle of parsimony, which, according to the authors, in conjunction with other principles, including the general principle of good faith in civil law, may provide some guidance in the practical field. They define a significant place among the principles of fulfillment of obligations in the Russian law - the principle of inadmissibility of unilateral refusal to perform obligations and related to this controversial litigation. The article outlines some features of enshrinement of the above mentioned principles by the CIS countries into the standards, and in the laws of foreign countries into the guidelines. It is also proposed to stipulate the definition of the terms and conditions of a standard contract adopted from the German experience in the Civil Code of the Russian Federation, which will ensure the balance between the interests of the parties to an agreement, as well as will become a means of protection against the abuse of freedom of a contract on the part of the economically stronger contractor.

LEGISLATIVE COMMENTARY

142-154 2211
Abstract
Review. This article considers models of developing custody and guardianship authorities in Russia: 1) state model - as executive bodies of the constituent entities of the Russian Federation, 2) mixed model - as local government with delegated public powers of guardianship, 3) municipal - as local government with their own powers of guardianship. The study found that the practice of legal regulation in the constituent entities of the Russian Federation gravitates towards a mixed model of developing custody and guardianship authorities, but the process of choosing a model has not been completed so far. The author raises a question of the regulatory and control role at the federal level of child protection in the light of the Russian-American relations on the international adoption of children. At an international level the author also considers a municipal model of the guardianship authorities in several European countries, characterized by giving broad powers to local governments on guardianship, and lack of state control. The author criticizes this model by virtue of the exclusion of the state's responsibility for ensuring children 's rights. The author proves the necessity for the approval of the public nature of guardianship authorities, which is connected with their importance for the promotion of human rights, particularly of such a special subject of humanitarian relations as a child. The main functions of the child protection services allocated depending on the entity whose rights require protection are considered. They include: adult citizens, adjudged incapable or limited in legal capacity; minors: a) being brought up in a family, b) being in a difficult situation, c) deprived of parental care, d) deprived of parental care and arranged in families. The author concludes that the scope of powers of custody and guardianship authorities and mechanisms for ensuring children's rights vary depending on the category of minors, as various groups of children require various measures for ensuring their rights. The limits of authority of the custody and guardianship authorities are revealed in the light of the principle of the inadmissibility of arbitrary interference in family matters.

INTERDISCIPLINARY STUDIES

155-163 575
Abstract
Review. The article is devoted to the analysis of current status of protection of the rights of the victim by means of forensic tools. The author argues that Criminology as a criminal science faced the need to define its co-relation with the criminal process through the prism of such conceptual criteria as objective knowledge. The main purpose of Criminology nowadays is to promote a reduction in the number of cases in which the establishment of trace information (and, hence, gathering sufficient evidence) does not happen, for subjective reasons. It is Criminology that is to foster optimization of enforcement practice and introduction of new scientific and technical developments.

ПРАВОВАЯ НАУКА И ЗАКОНОТВОРЧЕСТВО

164-172 577
Abstract
Review. This article analyzes the full text of a new draft of the Administrative Offences Code from the standpoint of modern understanding and interpretation of its most important administrative legal institute - the institute of administrative liability. The article shows underestimation of the role of the legal and administrative science in drafting the bill, which again prevented its title, content and form from being brought into compliance with modern achievements of administrative and legal science, the legal positions of Constitutional Court of the Russian Federation and the new constitutional and legal realities. The author concludes that, in general, the bill, if passed by the State Duma of the Russian Federation in such a way, will not able to effectively ensure the unity of purpose, coherence, internal consistency of the legal regulation of the whole complex of social relations that make up the institution of administrative responsibility.

NOVUS LEX

173-181 1659
Abstract
Review. This article is devoted to the main controversial issues of the doctrine of impossibility of performance. The author analyzes certain kinds of incapacity: factual and legal, objective and subjective, random and guilty, initial and subsequent. Despite a long history of analyzed statutory concept, it remains open to discussions. The subject of this study is the doctrinal view of impossibility of performance of obligations and the relevant norms of the Civil Code of the Russian Federation, which have undergone significant changes in 2015, 2011. There are two approaches in theory to the issue of the legal consequences of not accidental impossibility of performance of an obligation. The first approach: in case of such impossibility, the obligation is terminated, but a new protective obligation arises, whereby the responsible party for this specific sanctions should be applied. The second, more traditional, approach believes that an obligation is terminated by virtue of impossibility of performance in full only if the latter is caused by a circumstance for which neither side is responsible. The author concludes that the first of these two approaches prevails. Under this approach, the fair conclusion is that the obligation (regulatory) stops even when the impossibility of its performance is caused by a circumstance for which no party is responsible. Meanwhile, in order to apply this approach in practice, it is necessary to amend paragraph 1 of article 416 of the Civil Code of the RF. The author suggests such changes. In this regard, it is possible to recognize the justified denial of scientism for dividing the impossibility of performance of obligations into the objective and subjective, as well as random and guilty. The author also shares the position of those scholars who defend the use of incorrect initial impossibility of performance of obligations as unconditional grounds for recognition of the respective transaction null and void. The article provides critical assessment of some of the changes made to the articles 416 and 417 of the Civil Code of the RF in 2015 for implementing the concept of development of civil legislation of RF.
182-191 706
Abstract
Review. The problem of finding ways of conceptual changes in understanding occupational safety as the system of preserving life and health of workers in recent years can be traced both in studies by Russian jurists, and statutory documents of program policy and legal nature. The main task of a new occupational health and safety management system has become a transition to professional risk assessment and management. The quality solution of this task can be achieved by transforming the National institute of occupational risk management in line with internationally recognized trends. This article contains a comparative analysis of models of legal regulation of systems of occupational risk assessment and management, used in the coordinate system of the international and European labour law regulation and in Russian labour law. The author formulates a conclusion on significant distinctions between the specified models which arose due to the differences in interpretations of "professional risk" concept in European and Russian legal traditions. The paper considers the perspectives of development of the National Institute of occupational safety in the management of occupational risks, with emphasis on the need for updating and maintaining the established legal framework, "hosting" occupational risks management system, in part of the implementation of procedures of identifying and assessing occupational risks (in particular, the risks of psycho-physiological nature) and the risks associated with the implementation of labour (professional) obligations, conditions of exercising internal control (self-control) of adherence to labour laws and other regulatory legal acts containing rules of labour law. Enshrinement in labour legislation of a new concept of labour protection, based on the idea of management of risks damage to the health of workers, will entail adjustments to a number of existing legal norms, fundamentally contradicting it. With the introduction of a special procedure for assessing working conditions the legal rules on the reduction of working time and the procedure for granting additional leave for those working in hazardous or dangerous conditions have changed: "time" protection of persons working in such conditions may be replaced by monetary compensation, that is not a satisfactory way of preventing the onset of occupational risk. In conclusion, the author emphasizes the importance of achieving the conceptual integrity of the legislation in the spirit of the predominance of preventive measures in the legal regulation of labour protection.

ENFORCEMENT MATTER

192-201 458
Abstract
Review. Among the subjects of relations connected with the arrival of the civil service, its passage and differences may arise due to different understanding of their subjective rights, obligations and legal interests, as well as how to implement them. Having failed to be settled by the disputants, such disagreements are considered by competent authorities through the statutory procedures and eventually become official disputes. In the literature on administrative law a workplace dispute is seen as a type of administrative legal dispute. However, this approach raises serious doubts, as workplace disputes are not related to the exercise of public authority, public functions within its managerial competence, and with the implementation of them as the subject of official authority for the management of labour relations of public servants and the formation of a workforce to ensure their own activities. It is proved that subjective composition of workplace disputes, their subject, as well as the order of their settlement do not differ essentially from those of labor disputes, so there is no reason to consider workplace disputes as an independent kind of legal disputes. It is noted that the legislative definition of individual workplace dispute covers only workplace disputes on the application of laws, other regulatory legal acts on civil service and service contract, i.e. "disputes on the law", and does not include disagreements over the implementation of the legitimate interests of civil servants, which can be met when establishing new or amend existing conditions of service contract, i.e. "disputes of interest", which does not exclude the possibility of this kind of controversy. As for the collective workplace disputes, applicable law on civil service includes no concept of a "collective workplace dispute ", the law on the civil service do not have an explicit prohibition for such kind of disputes in the civil service.

HISTORY OF STATE AND LAW

202-230 1251
Abstract
Review. The proposed article raises the issue of the need for clear delineation in historical research of historical and contemporary meanings of the concepts. In this case, the terms in question are: autocracy, absolutism and theocracy. The term "autocracy" is of historical and contemporary significance. In XII-XVII centuries it was used to describe only independence and sovereignty of the State; the repository of supreme power, called autocrat, was perceived as a sovereign, independent from any other Lord, not paying tribute, i.e. sovereign Tsar. In that period the term "autocracy" was determined by the independence and sovereignty of the Tsar and his State, both in internal and especially external relations. Absolute monarchy ("absolutism") as a form of Government began to establish only in the second half of the 17th century, and obtaining its legal meaning in the first quarter of the 18th century. During that period the term "autocracy" changed its semantics, going from broad meaning - State sovereignty to a limited one, characterizing the supreme power in its internal functioning, designating it as the unrestricted monarchy ("absolutism"). Since then, the terms "autocracy" and "absolutism" have become synonymous. In such a meaning they are applied now, therefore, it appears that in order to provide adequate characteristics of stages of nation-building in Russia it is necessary to clearly distinguish between historical and contemporary significance of such key terms of medieval legislators and thinkers as the "autocracy" and "absolutism". Soviet and partly modern humanitarian science mainly treats the term "autocracy" only in its modern meaning - absolutism, without matching it with time of occurrence, determining the initial meaning, and subsequent evolution, which often causes researchers to proclaim the occurrence of absolutism in Russia already in the XV-XVI centuries, calling this form as an "autocratic despotism" (D.N. Alshits, Ya.S. Lurie and others), "unlimited autocracy" (in the meaning of "absolutism" - S.A. Orlov, V.A. Georgiev, etc.); "territorial autocracy" (A.Yu. Dvornichenko, Yu.V. Krivosheev); "Orthodox autocracy" (R.T. Muhaev, Yu.V. Puzdrach, I.Ya. Froyanov). Accordingly, the political doctrines of the period are characterized as "doctrines of Russian autocracy", "autocratical absolutism" (N.V. Asonov); "a developed doctrine of autocratic absolute rule" (A.V. Karavashkin, A.L. Yurganov). Such an analysis of medieval categories may only be explained by adherence to the traditions prevailing in the second half of XIX-beginning of XX centuries, amounting to the formula: "autocracy, orthodoxy, and nationality", acquired and copied during the Soviet period. Meanwhile, the view on the form of Government established in the second half of the XVI-XVII centuries, both at class representing monarchy, virtually shared by all historians, lawyers and laid open in all courses on "History of State and Law of Russia" and "History of Political and Legal Doctrines". The root of disagreements between researchers appears to have two main causes: the first is ignoring the historical content of the term "autocracy" and extrapolation onto the Middle Ages of its contemporary meaning of "absolutism"; the second is the substitution of the form States: form of government (the supreme power organization) by political regime (means of implementation techniques of supreme power in the State). In most of the above remarks both elements of the form of a State are combined: the form of government and political regime. The article alleges overdue need to develop a common methodology for the use of terms describing medieval statehood and the accompanying political and legal ideology, applying the terms of key legislators and thinkers of the medieval apparatus in their historical rather than contemporary significance.

SCIENTIFIC BRIEF

231-238 686
Abstract
Review. The application of the labour legislation of legal structures and legal approaches, peculiar to the civil law, leads to inefficient laws. An example of such undue reception may be certain provisions of the Labour Code of the Russian Federation on the participation of legitimate representatives of employers from among individuals with defects of the will. Representation in labor law exists as a separate legal phenomenon other than senior representation in its understanding. The objective of the representative of an employer - physical person from among minors and from those with limited capacity, on the one hand, by his actions is to authorize the establishment of labour relations with them (create required by law legal fact), on the other hand, to protect their rights and legitimate interests as much as possible. Part 9 art. 20 of the Labour Code provides for the right of the lawful representatives of the incapable citizens to conclude employment contracts with employees on their behalf for the purpose of personal service of these individuals and to help them in the household. This legal construction seems unsustainable and inefficient. It does not take into account the private-public nature of labour relations, as well as the presence of the parties to the labour rights and responsibilities as a property and non-property property. Rules on the additional responsibility of employers-individuals with defects of the will due to insufficient legal certainty also require further improvement. In particular, the issues of determining the maximum period of delayed salary payments, after which payment requirements should be addressed to the representative. Analyzing the legal norms of the Labour Code of the Russian Federation concerning the credentials of the representatives of employers from among individuals with defects of the will, it must be concluded that the representative in some cases replaces a represented person and in some cases joins him as a special subject, helping in the realization of labour rights and their protection, as well as providing guarantees of workers' labour rights of the specified employers.


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