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No 8 (2017)

PHILOSOPHY OF LAW

9-42 458
Abstract
The article examines the most important aspects of the process that is commonly called Revolution. In this process, statehood is undergoing transformations in which the state interest as the essence of the State causes, inspires, through a series of coups and transformations, and develops more and more new forms, even though the phenomenon itself remains unchanged. A state coup, dictatorship, states of emergency and terror remain the major stages of the revolutionary transformation being carried out in various historical contexts. Legality as an external form of a process remains relevant at different stages changing its normative shape. Legitimacy is in the constant search for its source, completing it within the boundaries of statehood. An important tool for transformations includes violence that successively takes the form of"divine," "mythological, " normative and enforcing the regime of dictatorship (an emergency situation that acquires a chronic, permanent nature) by necessary means. "Sovereign" dictatorship is opposed to "Commissar" dictatorship, and sovereign violence, as constitutive one, is opposed to law-supporting violence Legal aspects of the revolutionary process appear to be the most articulated and significant, which should attract attention of historians of revolutionary events and ideas.

THEORETICAL PROBLEMS OF BRANCHES OF LAW

43-60 602
Abstract
The article shows the significance of mining law as well as the legal regulation of the mining industry as the basis for the development of social and production basis of the Russian Federation. The paper considers researches carried out by leading scholars in the field of Natural Resources and Environmental Law regarding the concepts of Mining Law. The author determines his approach to defining the place of Mining Law in the system of branches of law and to defining the concept of "Mining Law". He makes an attempt to reveal the semantics of Mining Law. The paper studies the content of mountainous legal relations.
61-72 23507
Abstract
The article examines the concept of "rational use of natural resources" in Environmental Law. It has been shown that both in law and in legal science, the concept is unreasonably used in the following meanings: sustainable use of natural resources, the use of natural resources that does not make their exploitation difficult, the use of natural resources that does not entail violation of the legislation, etc Two common legal criteria for the rational use of all natural resources have been identified: (1) achieving maximum efficiency of their use at the current level of the technique and technology development (2) with such a level of negative impact that the environment can handle itself On the basis of the named criteria, the rational use of any natural resources suggests understanding of the use of natural resources characterized by maximum efficiency in terms of the balance of private and public interests in environmental law in compliance with the current level of technological development and the extent of the negative impact that the environment is able to cope with itself because of its assimilating capacity The article defines legal differences between rational use of natural resources and their sustainable use. Also, it formulates additional legal criteria that separate the rational use of renewable and non-renewable natural resources An additional legal criterion for the rational use of renewable natural resources includes enhancement of sustainability of natural ecological systems, natural and natural-anthropogenic objects. Additional legal criteria for the rational use of non-renewable natural resources include: their most efficient use and/or extraction; their economical consumption with minimum losses at the current level of technology development It is suggested that the rational use of renewable natural resources means the use that results in strengthening natural ecological systems sustainability, natural and natural-anthropogenic objects. Rational use of non-renewable natural resources means their most efficient use and/or extraction, their economical consumption with minimum losses at the current level of technological development and such extent of the negative impact that the environment is able to overcome independently

LAW AND ECONOMICS

73-78 446
Abstract
In the article, self-regulating organizations are regarded as being directly involved in systemic regulation of economy by exercising their functions aimed at streamlining relations associated with self-regulating activities In certain economic industries federal laws provide for national associations of self-regulating organizations: the order of foundation, functions, rights and responsibilities. Prior to the emergence of self-regulating organizations, some of these functions, including regulatory, disciplinary, security and control, were carried out by state authorities Delegation of state functions to self-regulating organizations and their national associations is one of priorities of the State in the context of administrative reform that settles both objective and subjective problems. Problems of objective nature include legislative restrictions on the number of self-regulating organizations in a particular sector of the economy, gaps in the normative regulation of the processes of establishing national associations of self-regulating organizations, determination of their legal status, rights and obligations. Problems of subjective nature include inadequate performance of duties by individual officials of executive bodies of state power, and contradictions within professional communities In the view of the author, in order to overcome these problems, it is necessary to consistently follow the main lines of the Concept of Improving Self-regulation Mechanisms, for which purpose, first, unified approaches to the regulation of the institute of national associations of self-regulating organizations should be formed by means of defining legislatively the concept of "national association of self-regulating organizations" and its legal status. Second, undue restrictions on the rights of members of professional communities to join self-regulating organizations should be avoided

IN FOCUS

79-89 1234
Abstract
The article analyses general approaches to the research program and training discipline "Economic Analysis of Law." The author argues that there is a need to distinguish between such research areas as "Law and Economics" and "Economic Analysis of Law." The paper provides arguments in support of such a distinction. Further, the author describes the main features "Economic Analysis of Law." In a very general sense, the paper defines methodological and ideological foundations of this direction of scientific research. It is argued that "Economic Analysis of Law" is one of manifestations of a broader phenomenon called "economic imperialism." In the author's opinion, "Economic Imperialism" represents an attempt to spread neo-classical economic theory and neo-institionalism in non-economic spheres of the society (i.e., an economic approach to all social issues). The key concepts of "Economic Imperialism" are scarcity, price, alternative costs, benefits Then, the author studies the attitude of domestic legal scholars to the "Economic Analysis of Law." However, three groups of scholars are determined: first, scholars who are skeptical about this phenomenon; second, scholars who accept it but with a critical bias; third, scholars, who favor this phenomenon, but interpret it in a slightly different way than it is traditionally done in Western science. The author proves the need for studies covering adjoining issues of law and economics. The author provides arguments in support of this point of view To sum up, the author concludes that the need for research at the confluence of law and economics is now evident not only in the legal science but to the same extent in the economic science At the same time, the interaction of sciences should be carried out on an equal footing, and adjustments should apply to both branches of knowledge In this regard, the prospects for research in "Law and Economics" could be one of the most promising directions for development, both in jurisprudence and in economics

ЗАКОНОДАТЕЛЬНАЯ ТЕХНИКА

90-100 847
Abstract
The article examines some mistakes in defining legal concepts as exemplified by anti-corruption legislation of the RF. In particular, the legal notions of "corruption" and "conflict of interests" are subjected to critical scientific analysis. The formation of Russian legal concepts is being analyzed in the light of interbranch connections of the Russian system of law and their compliance with the norms of international law. The authors illustrate such errors of definition as excessiveness of legal terms, ambiguity and inaccuracy of legal language, the use of equal content (synonymy) of concepts, inconsistencies in the scope of the notion and its content, tautology and inadequacy of legal definitions. Domestic legislation analysis (its retrospectives and modern condition) led to the conclusion that "technically" Russian legal field could well be adapted to the perception of international law norms and best practices of foreign legislation concerning the most effective means of combating corruption.

DISTANCE ROUND TABLE "NEW RUSSIAN CRIMINAL CODE: CONCEPTUAL FRAMEWORK AND THEORETICAL MODEL»

101-111 754
Abstract
A draft Section "Public Security Measures" is formulated in accordance with the authorized concept of coercive measures of medical intervention, according to which compulsory treatment is not criminal in nature, as in its legal nature, as well as other measures of medical intervention, it amounts to a security measure that is governed by prescriptions traditionally included in the Criminal and Criminal Procedure Codes of the PF and the basic provisions are laid down in the Law of the RF № 3185-I of 2 June 1992 "On psychiatric care and guarantees of the rights of citizens in its provision." The draft Section reflects basic requirements of legislative technique concerning the structure of a normative regulatory text and clarity of presentation of regulations. As a result of compliance with this requirements, new articles, parts of articles and a note have been included in the Chapter entitled "Coercive Measures of Medical Intervention." A number of articles have changed their location. In deciding on the titles of the section, chapter, articles and penal provisions, the author takes into account recommendations of legislative textology aimed at improving their quality Titles generalizing normative texts of the chapter are brought in exact accordance with their contents. The initial article of the chapter defines the key concept of "coercive measures of medical intervention." The grounds for imposing and application of coercive measures of medical intervention include danger of persons who committed socially dangerous acts or crimes caused by their mental disorder. For the first time, within the framework of a certain article, the criteria for imposing compulsory treatment in medical organizations of various types that provide psychiatric care are outlined Separate articles highlight the substitute of examination of a person subjected to compulsory treatment and the substitute of prolongation, modification and termination of compulsory treatment. Within this section, an integral theoretical model of the Chapter "Coercive Measures of Medical Intervention" has been developed and a brief legislative and textological characterization of each article and its structural elements is given

LEGISLATIVE COMMENTARY

112-118 1090
Abstract
The article reveals the content of such a qualifying element of vandalism provided for in Part 2 Article 214 of the Criminal Code of the Russian Federation as an act committed by a group of persons. By establishing the qualifying element in question, the law-maker relied on the greater public danger of group vandalism not only in relation to vandalism carried out by one person, but also in relation to vandalism committed in complicity when there is a legal differentiation of roles that apart from the vandalist include the organizer, the instigator and the abettor shall be provided. It is noted that vandalism should be classified as an act committed by a group of persons only when accomplices to the offense are co-participants, i. e. in whole or in part they carry out the acts forming the objective side of the offense set forth in Article 214 of the Criminal Code of the Russian Federation Based on the legislative definition of the perpetrator (Part 33, Article 33 of the Criminal Code of the Russian Federation), it is noted that only acts of accomplices directly involved in desecration of buildings or other structures, deterioration of property in public transport or other public places, or who have committed these acts by the use of other persons who are not subject to criminal liability due to age, insanity and other circumstances provided for in the Criminal Code of the Russian Federation can form joint participation in vandalism Co-participants can act simultaneously, acts of co-participants can be sequential, and it is possible that co-participants can commit different acts. However, it is common to all the co-participants that their acts are wholly or partially consistent with the description of the objective side of vandalism described in the Law The article critically assesses the practice of qualifying acts of participants of vandalism who, at the time and place of the crime, only assist the perpetrator as commission of the crime by the group of persons; similar decisions are also made in the course of qualifying vandalism On the basis of analysis of case law and clarifications of the Supreme Court of the Russian Federation, it is established that this practice is contrary to the generally accepted understanding of the group crime

COMBATING CRIME

119-135 406
Abstract
The article discusses forensic problems on counteraction to the organized crime activities in the field of insurance in modern Russia. The author clearly shows the level of development of the theoretical and applied criminology, and provides an overview of the work "Methodology for Crime Investigation in the Field of Insurance and Related Methods and Methodological Recommendations" available for free download on the Internet. The article also characterizes the state of modern law enforcement practice in identifying, disclosing and investigating fraudulent and other organized criminal activities in the field of insurance The author specifies that the contents of the corresponding practice constitutes a number of significant forensic trends that the author selects and justifies. As for the latter is concerned, the author concludes that the degree of efficiency of counteraction to the organized fraud and other organized criminal activities in the field of insurance at the present time cannot be regarded as satisfactory This article provides insightful analysis of official statistics on convictions for crimes under Art. 1595 of the Criminal Code of the Russian Federation. The author offers a typology of offences in the field of insurance and provides arguments in favour of the chosen criterion for such a typology in accordance with which four types of offences in the field of insurance can be distinguished: simple crime (domestic, committed individually, outside a group), group crime, organized crime and organized and corrupt crime. The author provides brief examples of relevant types of the crimes. Based on the enforcement practice the article outlines the main trends of the organized criminal activities in the field of insurance, addresses the issues of criminal characteristics of organized criminal activities related to committing fraud and other crimes in the field of insurance, as well as related crimes
136-146 762
Abstract
Comprehensive forensic psychological and psychiatric examination of the victims plays an important role in the investigation and hearing of cases involving sexual offences against minors in court. According to the authors, the state of the expert practice in this category of cases does not always meet the needs of the investigation and trial. Courts tend to trust the experts' opinions and not always evaluate the validity of the expert conclusions on the merits, ignoring the inconsistency of these findings to other evidence collected in the case. To change the situation, the authors offer the following measures. To expand the range of issues that may be raised before experts in the investigation of sexual crimes against minors taking into account the achievements of victimology and legal psychology on the features of psychological consequences caused by sexual violence experienced by children To identify the range of issues that are expedient to be set before experts in the appointment of the examination at the stage of criminal proceedings To give expert psychiatrists and psychologists the right to independently interview witnesses for information about life and upbringing of the survivor. In so doing, to criminalize the experts for deliberate distortion of information received from witnesses. To recognize the admissibility of formulating alternative probable experts conclusions The need to formulate alternative conclusions would prompt experts to nominate not one but several expert hypotheses, analyze the facts supporting and refuting each of these hypotheses. Such a practice would dramatically reduce the number of expert errors subject to distortion of the internal persuasion expert With the development of the legal regulation on the provision of comprehensive forensic psychological and psychiatric examination of juvenile victims in sexual offence cases and methods of the specified examinations, it is advisable to rely on international legal standards and the experience of foreign countries.

PERSONALITY OF A CRIMINAL

147-161 607
Abstract
The article is devoted to the motive, which is yet to be distinguished and studied by the domestic scientific literature. This is largely due to the fact that the domestic criminology has not paid enough attention to the crimes caused by totalitarian regimes (with the exception of the monograph by V. N. Kudryavtsev and A. I. Trusov "Political Justice in the USSR", 2002) and by the church. The article consistently explores the concept of obsession with an idea, names the types of obsession that will be explored in this article in connection with the religious belief practice, totalitarian dictatorships establishement, fanatical football fans. The author provides extensive data on the atrocities of the Catholic Church, the role of obsession in establishing a new (totalitarian) regime and maintaining the power. The article stresses the role of the crowd, and therefore justifies its division into crowd-flock and a crowd as a certain social strata. The obsessed stimulate the crowd and at the same time identify fanatics willing to fulfill any orders including the bloodiest ones The author provides necessary arguments

SCIENTIFIC BRIEF

162-166 770
Abstract
The article is devoted to hooliganism, one of the elements of crimes, which has long been known to our (and foreign) legislation and which is constantly undergoing changes. This is partly due to the fact that the legislator wants to bring the wording of the law in line with the requirements of the practice, partly because our life today is changing rapidly, and new forms and types of hooliganism, which have been missing until recently and could not even exist: telephone hooliganism, hooliganism in social networks on the Internet. Tomorrow something else may appear. The past few years have seen dramatic increase in the wanton disruption of public order on airplanes, on trains and on different vessels. Very often, such hooligan actions pose a threat to the secure work of the vehicle and endanger the lives and safety of passengers and other persons. On April 3, 2017 Federal Law No. 60-FZ introduced relevant amendments into the Criminal Code of the Russian Federation, concerning responsibility for hooliganism and hooligan related crimes. There are two changes. Firstly, Part 1 of Art. 213 was supplemented by clause C: "on rail, inland waterway, sea or air transport, as well as on any other public transport"; Secondly, the Criminal Code was supplemented with Section 2671 "Actions Threatening the Safe Operation of the Vehicle". The article analyses these changes

PUBLIC INTERNATIONAL LAW

167-176 1094
Abstract
The first international legal instruments of universal scope aiming at limiting the right of States to the war, began to develop only at the end of the XIX - early XX centuries. The author conducts a legal review of all such instruments, paying particular attention to the Charter of the League of Nations adopted in 1919, the year which included very substantial restrictions of the traditionally recognized right of States to war. Nevertheless, the logical interpretation of the Charter of the League of Nations leads to the conclusion that there is some kind of procedural subterfuge that opened broad opportunities for States to resort to war Considering the Paris Treaty for the renunciation of war as an instrument of national policy 1928 (the Kellogg-Briand Pact) as the first universal treaty that establishes the prohibition of wars of aggression, the author pays special attention to its significant shortcomings, one of which was that the said prohibition was concerned exclusively with war in the proper sense of the word, while other forms of use of armed force in international relations have been left outside its scope. The abovementioned circumstance necessitated the elaboration of a definition of aggression and consolidation of such a definition in an international instrument. The efforts made in this direction are also covered in this article. The author conducts a detailed study of other multilateral and bilateral treaties (in addition to the two above-mentioned), paving the way for the formation of the principle of non-use of force in international relations as enshrined in the Charter of the United Nations. In addition to the relevant international standards, the author also studies some doctrinal drafts, in particular those relating to the period of the emerging science of international law and showing a gradual rooting of ideas on the need to limit the right of States to war in the legal conscience

PRIVATE INTERNATIONAL LAW

177-188 401
Abstract
The carriage of raw oil and petroleum refinery products has been traditionally classified as costly and dangerous. The insurance of cargoes is experiencing the same difficulty. The pooling of the shipowners' funds is required. At the same time, the guilt for the occurrence of the insured event is usually attributed to the actual carrier. Insurance solvency is based on expenditures prior to the formation of insurance payments. At the same time it is easier to entrust the calculation of the insured value to a consolidated group of insurers. Only in this case, the limitations of liability are good and valid, and then the risk corresponds to the maximum level of insurance protection. As a result, the limits of liability are resistant to any of the losses. However, mutual insurance lies in creating new insurance products, where compensation and protection are strongly linked The emergence of powerful financial trust leads to cumulation of funds and their targeted distribution As a result, the extreme dissociation of operational risk indicators can be overcome. Futures contracts advance compensation for the primary risk only The upcoming coverage guarantee shall be established freely and the risk obligation shall be incorporated into direct costs for insurance premiums. IOPC funds increase the liquidity of the assets.

HISTORY OF LEGAL THOUGHT

189-206 827
Abstract
The article is devoted to the methodological peculiarities of the ancient jurisprudence. The ancient world is undoubtedly an extremely important period not only in the world history, but also in the history of the development of philosophical knowledge and positive sciences, and therefore in the history of methodology, arising and functioning at the intersection of philosophy and science The methodology is a philosophical discipline, which sets the correct methods, approaches, ways of learning, and also creates necessary tools of scientific research, including those in legal sciences. The key aim of the methodology is an efficient organization and management of knowledge as a purposeful process of receiving and processing of new and reliable scientific facts. Special significance of the ancient period of methodology development is that it is this historical point that laid the foundations of the methodological principle of the matrix of cognitive activity. Undoubtedly, from the objective point of view it is only possible to speak on the elements of scientific knowledge and methodology in the period of the ancient world, as the science of that era could not be used as a smooth and systematic production of scientific knowledge on the basis of a comprehensive study of the reality. However, it is in the ancient times when a methodological basis of juridical science began to emerge, especially due to the theoretical efforts of the Greek thinkers and distinguished Roman jurists. We can certainly talk about cognitive multi-directional efforts of the scholars of ancient societies: Greek thinkers undertook the development of a theoretical side of political legal perspective, and Roman lawyers became widely known through practical activities in the field of State and Law. Roman law, was not only the final stage in the evolution of the ancient law, but it was the outcome of the overall development of legal theory and practice of the ancient world absorbing many important achievements of the legal thought of the greater part of the advanced countries of the ancient world. Thus, this article covers a rather ambiguous question on methodological grounds of theory and jurisprudence of the ancient time.

ИМЯ В ИСТОРИИ

207-216 1037
Abstract
A famous Russian lawyer Fedor N. Plevako received his common name of "Moscow Master of Rhetoric" while still alive. His contemporaries noted his ability to make a magical impact on the Court and the jurors, the ability to turn the trial in the favour of the accused. He could build invisible rapport with the audience, show smartness and quick wit applying comparison or retorting the replica of the opposite party in a blink. As a modern Russian lawyer H . Reznik justly emphasizes, Plevako was a lawyer - a professional of the top class, deep psychologist, penetrating the secrets hiding in the human soul, a connoisseur of social mores and life of different social strata. Those knowing F. N. Plevako in person noted the inherent sense of proportion, which is a characteristic of a truly smart and clever man He had a deep respect for all participants in the judicial process: he tried to find enemies neither in judges nor in the Prosecutors, neither in witnesses nor in the jurors; on the contrary, he considered himself as the thirteenth with a deliberative voice. In support of this conclusion the article rovides examples of speeches by F. N. Plevako at many trials. There is an opinion on Plevako being a lawyer of practice, but not a public figure, as he was not involved in the political processes of the cases such Faith Zasulich case. The author of the article contradicts this view, citing the cases of lyutorichesk peasants, sevsk peasants, on the workers' strike at the Savva Morozov factory and others, noting the fullness of his speeches with public and political sense, deep citizenship and a sense of compassion for people Plevako participated in the Commission working on a draft reform of the legal profession, together with A. F. Kony, V.D. Spasovich, N. S. Tagancev, I. Ya. Foynitskiy and other prominent lawyers of Russia. His being elected to the State Duma in 1907 shows him as a public figure The final part of the article highlights the huge role Plevako played in practical and theoretical jurisprudence in Russia, and notes that his legacy is subject to careful and in-depth study There is also a need for developing Plevako legal school among legal practitioners, providing his students with a finesse of psychological analysis, expressiveness and richness of legal language, brightness and vitality, glitter images, style and depth of thought

OPINION

217-223 929
Abstract
The article examines special aspects of termination of coercive measures of educational impact in relation to minors, specificity of activities of authorities monitoring the application of these measures and submitting to the court petitions for the termination of these measures. The author concludes that there is a need for a mandatory instruction in the court order imposing coercive measures of educational impact in relation to a minor to compel a specific state authority to exercise control over enforcement of these measures Types and means of changing the sentence pronounced by the court are much more variable, and possibilities of using various instruments to achieve the objectives of punishment are more diversified than the change of the imposed coercive measure of educational impact In the case of coercive measures of educational impact, the legislator envisages only their abolition, which does not correspond with the needs of today. It is proposed to extend the powers of the court to amend the imposed coercive measures of educational impact and to enable the court not only to cancel the measures, but also to modify them replacing one measure with another and changing their content. It should be possible to impose additional requirements and restrictions in relation to the measure of educational impact that has already been imposed in the form of restricting leisure time and setting forth special requirements applied to the minor's behavior; or mitigation of requirements applied to the minor's behavior and restrictions of leisure time as an incentive measure in respect of a minor who has acted in good faith complying with the coercive measures of educational impact imposed by the court. Another possibility for the court to amend coercive measures of educational impact imposed by the court should include the possibility for the court exercising judicial control to replace the previously-imposed coercive measure of educational impact with another measure or to apply it in addition to the measures already imposed. The author concludes that, in order to effectively correct coercive measures of educational impact imposed by the court in relation to a minor, the court should, in sentencing the minor, impose a sentence and release the minor from serving it, rather than convicting the minor without imposing certain punishment


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ISSN 1729-5920 (Print)
ISSN 2686-7869 (Online)