No 9 (2017)
THEORY OF LAW / THEORIA LEX
9-21 1706
Abstract
The paper addresses the issue of differences in sociological and legal understanding of law, identifies an objective nature of such differentiation, and, at the same time, the need for a minimum conceptual consensus for the development of Sociology of Law (Sociological Jurisprudence). It is shown that such consensus is possible on the basis of studying law as the due and existent, on the basis of a dialectical approach to law, identification of juridical and social aspects in law, examination of the essence of law. The gap between "law in books" and "law in life" can be exploited by means of the frame of references (formal norms (the due) - social institutions (the existent); juridical law - other social law). Such a scheme serves both the interests of sociologists and practical needs of lawyers. The scheme is in compliance with the desire to understand affinity and interdependence of different regulators (social institutions), to identify social aspects of legal activity, the degree of law effectiveness, and interrelations between jurisprudence and other humanities. This scheme can be supplemented by another reference that reflects the degree of achievement of formal equality of subjects in law.
HISTORY OF STATE AND LAW
22-35 731
Abstract
Since Peter I established the Prosecutor's Office in Russia in 1722, prosecutors, unlike the previous Fiscal Service officials, have been focused on prevention of violations of law rather than on their detection. In the ensuing years, the Prosecutor's Office experienced different times, the structure of the Prosecutor's Office, powers of prosecutors, and the degree of influence of the Public Prosecutor's Office on law and order in the state. Nevertheless, the Public Prosecutor's Office activities have almost always been aimed at preventing violations of laws. In this regard, as a general rule, the words concerning prevention (determent, averting, etc.) of violations of laws regulating the Public Prosecutor's Office are not explicitly stated. However, a preventive nature of the work of the Prosecutor's Office was predetermined by the duties assigned to prosecutors, the essence of which was precisely to ensure that agencies and persons under their supervision complied with the requirements of laws. The paper, with reference to specific provisions of normative legal acts, investigates the history of the Russian Procurator's Office activities aimed at preventing violations of laws since the establishment up to our days. It is noted, however, that this sphere in the Public Prosecutor's Office activity has recently become more requested. Also, the author proposes to enshrine the priority of this approach in the Federal Law "On the Procurator's Office of the Russian Federation."
36-46 499
Abstract
The article raises the issue of subjective restrictions applied to the freedom of trade principle proclaimed in the Russian Empire in the second half of the nineteenth century. The article covers the timeframe of the 1880-s when the liberalism of Alexander II was replaced by Reaction of Alexander III aimed at strengthening the power of an autocratic nation and ensuring public security. Documented justifications of officials determining the public policy during the period of political reaction and counter-reforms of Alexander III, namely: N. Bunge, N. Ignatyev, D. Tolstoy, I. Vyshnegradskiy, S. Witte, give insight into the motives for tightening legislative restrictions concerning persons of Jewish faith. The author has shown that, unlike medieval persecution of Jews for religious reasons, at the end of the nineteenth century these people pursued moral, and consequently, economic and political claims. In addition to increasing legislative restrictions concerning persons of the Jewish faith who traded both within boundaries of the Pale of Settlement and in interior provinces of the Russian Empire, restrictions strengthened nationwide at the level of effective legislation implementation. Problems concerning trade rights of persons of the Jewish faith were more and more often resolved by means of administrative regulation rather than legislative mechanisms.
NOVUS LEX
47-55 690
Abstract
The article deals with the analysis of state registration of normative legal acts of executive bodies of constituent entities of the Russian Federation in a number of constituent entities of the Russian Federation. The author describes its origins, content and implementation in the constituent entities of the Russian Federation where it has been introduced. The article assesses positive and negative aspects of application of this institution, describes its importance to the legal system of constituent entities of the Russian Federation and its role in ensuring the unity of the Russian Federation legal environment. The author considers the prospects for maintaining State registration of normative legal acts of executive bodies of constituent entities of the Russian Federation in the context of the tendency towards unification of legislation in general, the need to take into account the specificity of a law-making procedure in a certain branch of law aimed at reducing the time lag between act adoption and its coming into force, and due to the development of Federal Constitutional Control and supervision mechanisms, including strengthening of the role of the Public Prosecutor's Office and bodies of justice in rule-making activities of state authorities of constituent entities of the Russian Federation. The author provides examples of emerging regulatory conflicts that impede the operation of this legal instrument, summarizes views given in legal literature concerning the ways to prevent instances of promulgating, coming into force and implementing of illegitimate regulatory acts initiated by state authorities of constituent entities of the Russian Federation. Based on theoretical and normative resources analysis, the author makes proposals concerning the ways to resolve the issues raised in practical activities of executive authorities of constituent entities of the Russian Federation. In particular, the paper lays foundations for proving feasibility of amending Federal Act of October 6, 1999 № 184-FZ "On General Principles Governing Organization of Legislative (Representative) and Executive Organs of State Authority of the Russian Federation" regarding consolidation of rules devoted to state registration of normative legal acts of executive organs of State authorities of constituent entities of the Russian Federation and its connection with these acts' official promulgation and coming into force.
56-63 458
Abstract
Using the examples of transport offences under the Criminal Code of the Republic of Kazakhstan (the RK CC) committed in 2014, the author identifies an unbalanced approach of the legislator to distinguishing between administrative and criminal acts in the process of the legal reform. It is noted that a number of transport offences were erroneously attributed to criminal offences regardless of the manner in which they were committed, the nature of injurious consequences and other significant legal grounds. The author justifies the conclusion that the main criterion for distinguishing between crimes, criminal offences and administrative offences is the degree and nature of their public danger. This criterion should form the basis of a legislative definition of an administrative offence (Art. 25 of the Administrative Offences Code of the Republic of Kazakhstan) and should be considered to develop the system of transport criminal offences. The existence of administrative torts in the sphere of family and domestic relations, public order and morality, rights and freedoms of minors, traffic safety, labour protection and other administrative offences have resulted in neglecting their criminal nature, inaccurate assessment of offences' different nature and degree of their public danger, and errors in law enforcement practice. It is, therefore, proposed that a Code of 'Minor' Offences or Minor Misdemeanours should be drafted and, along with the Penal Code, be recognized as a source of criminal law.
64-72 657
Abstract
The paper analyzes contemporary Russian legislation concerning adaptation and integration of migrants. The author demonstrates the problems of adaptation and integration of migrants in modern Russia, the resolution of which will result in facilitating ongoing legal and socio-political processes, encourage thorough examination of legal, economic, social, cultural structures of the modern russian society, elaborate a sound migration policy in the context of modern realities. The author has carried out a theoretical and methodological analysis of an integration notion. The paper points out that an integration model applied to cooperation between labour migrants and the host state is the most efficient model. The author recognizes the necessity to expand the number of participants of integration processes by including not only the state but also explicitly non-governmental entities. The paper examines the issues of separation of powers between different territorial levels of public power in adaptation and integration. It is proposed to adopt a federal law concerning social and cultural adaptation and integration of migrants that would define the system of bodies regulating the named relations and powers of each of them. The need for a more precise separation of powers between public authorities in adaptation and integration of labour migrants is seen as an essential vector for the development of legislation. In conclusion, the author proposes many measures to be taken to provide effective functioning of the institute of adaptation and integration of labor migrants.
73-85 578
Abstract
The article addresses the problem of law enforcement in the context of a great number of gaps in the system of procedural legal norms in the Labour Code of the Russian Federation, in particular, among the rules concerning liability of an employee for failure to perform or improper performance of his or her work. Within the branch of Labor Law, types of employee's responsibility are combined in accordance with their labour law nature. For an employee to be held liable a reason common for both material and disciplinary liability is applied, namely, a disciplinary offence, with a few exceptions. However, regardless of theoretical implementation of rules regulating employee's liability to the employer, labor legislation provides for a very vague description of the procedure for holding the employee liable, which causes a lot of law enforcement problems that may seem minor at the first sight, but taken cumulatively they are of primary importance for resolving a partucular dispute. By analysing labour laws, scientific literature and jurisprudence, it is possible to identify a fairly large number of problems arising when the employee is held liable, numerous axiological concepts and procedural mistakes committed by employers. This raises the question of revising existing legislation with a view to unifying, within the framework of one institution, employee's responsibility to the employer and including into it the concepts of a "procedure for bringing an employee to labour law liability" or "procedure for bringing an employee to liability for failure to perform or for improper performance of labor duties" providing a uniform or common procedure for conducting a disciplinary (internal) investigation with developing evidentiary basis (of the case) in writing. A unified procedure for bringing employees to liability in the sphere of labor law relations should be set forth in more than just one or two articles. The Labour Code of the Russian Federation should contain a chapter or a group of rules containing procedural principles and rules that thoroughly regulate the procedure of bringing employees to liability under labor law provisions.
ENFORCEMENT MATTER
86-92 859
Abstract
А court fine is characterized not only by criminal law features as a measure of criminal law and procedural order, but also by special rules for its execution. Based on the Federal law "On Enforcement Proceedings" the article examines the functions of bailiff and persons released from criminal liability under Article 762 of the Criminal Code of the Russian Federation. Using case materials the author considers the rules for determining terms of payment of court fines. It is concluded that, given the time limit for the court decision to become effective and to enable the appeal period, the term should be limited by the number of days starting from the date of the court decision becoming effective but not the set due date. The author analyses the differences between a court fine and a fine as a criminal penalty. The author suggests that the court ruling should first explain the obligation to provide information about the payment of court fines to the discharged person, then the consequences of non-payment. Based on the conditional nature of this type of exemption from criminal responsibility the process of evasion from a court fine is considered. It is argued that the failure to pay a court fine should definitely, irrespective of the causes of deviation, lead to the abolition of the exemption from criminal responsibility. The author suggests regulating the execution of a court fine not by the Federal Law "On Enforcement Proceedings" but by the Penal Code of the Russian Federation.
93-106 7707
Abstract
The article analyses the correlation of appeal and appeal in cassation procedure for criminal cases and compares the object and subject of appeal and appeal in cassation. The author singles out their features, including those set by the ECHR and the Constitutional Court of the Russian Federation, making it possible to distinguish between the appeal procedure and appeal in cassation procedure for criminal cases. The article discusses the features of excitation of appeal and cassation procedure, as well as their impact on the effectiveness of the judicial review. The author examines particularities of the organization of the court system, enabling appeal in cassation and outlines the factors that allow the Supreme Court of the Russian Federation provide for greater integrity of judicial practice and law. The author notes the importance of the principle of legal certainty as a basis for truth of the judgement for the system of verification of the stages of the criminal procedure. To differentiate between an appeal and appeal in cassation procedure the author determines the possibility of a separate check of the actual circumstances of the criminal case and legal issues, the impact of these factors on the convicted or aquit-ted person's participation in the meeting of the courts of appeal and cassation; the grounds for cancellation or modification of the judgement; procedure for review of judicial decisions; decisions taken by appellate and cassation courts. Comparative analysis of negative effects of appeal and appeal in cassation is conducted. The ratio between the timing of the appeal and appeal in cassation, as well as the impact of the latter on the evaluation of ECHR Russian appeal as ineffective remedies is considered. As a result, an effective remedy to be exhausted based on P. 1 Art. 35 of the ECHR is the appellate review of judicial decisions. The author explores the special powers of the President of the Supreme Court of the Russian Federation and his Deputy in review of court decisions (P. 3 Art. 401.8 of the the Criminal Procedural Code of the Russian Federation). The author outlines the features of appeal in cassation procedure indicating its extraordinarity, which helps to ensure the legal stability and legal certainty.
107-115 457
Abstract
According to official statistics, today in Russia a yearly average of about 60 per cent of offences are investigated and then dealt with by courts using forms of criminal proceedings involving a compromise between the prosecution and the defense. The content of the rules governing the forms of judicial proceedings and especially their implementation in practice, allow many representatives of the legal community to celebrate the decline in the quality of investigation and prosecution, to pay attention to the associated violations of the rights and legitimate interests of persons involved in criminal proceedings. Attention is drawn to the fact that the application of the considered forms of criminal proceedings often give rise to violation of rights and lawful interests of the participants of the process. It is specified that such circumstances are determined not so much by the construction norms governing enforcement practice under Chapters 32.1, 40, 40.1 of the Criminal Procedural Code of the Russian Federation, but also by the practice of their application. It is noted that, despite the long period of existence of criminal procedural institutions involving the compromise procedure, researchers have not paid sufficient attention to forensic support of the considered forms of court procedure. The author indicates that forensics can improve the quality of the investigation for the categories of criminal cases through the establishment of appropriate application recommendations. The article focuses on the need to ensure that investigators implement forensic support for the rights and lawful interests of the victim in criminal cases with the prospect of a trial in a special order. The necessity of establishing forensic recommendations for overcoming existing and predictable counter to criminal prosecution by a compromise between the parties (the prosecution and the defense) on the basis of criminal procedure rules, as well as criminal law. The author's definition of a "compromise" principle is proposed, the need to include it in a number of principles on the implementation of forensic techniques is argued. It is stated thatforensic support of compromise procedures can contribute to the improvement of the quality of investigations, to ensure effective protection of the rights and legitimate interests of persons involved in criminal proceedings, thus becoming a promising area of research.
INTERNATIONAL LAW
116-126 595
Abstract
The article describes an important theoretical question, which concerns the approach to understanding the law of Eurasian integration in terms of international legal science and its place in the system of international law. The problem of forms of institutionalization of Eurasian integration is inextricably linked with it. The main dilemma is whether modern integration association is an international organization in its "classic" outline or this is a specific entity which cannot be on a par with international intergovernmental organizations. To the foreground in this perspective stands the question of whether an integration association possesses or lacks international legal personality. Particular emphasis in this connection is given to the views expressed on this matter in the domestic doctrine.
ЕВРОПЕЙСКОЕ ПРАВО
127-133 470
Abstract
The article analyses theoretical, practical and comparative features of legal protection in challenging the restrictive measures of the European Union. The legal basis for the use of sanctions and certain specific legal provisions are considered. The authors focus on the specific mechanisms and remedies from European Union sanctions available to third countries.
DISCUSSION PANEL / PRO ET CONTRA
134-147 1350
Abstract
The article is devoted to the definition of "environmental crime", which is debatable. The author examines in detail all available literature approaches to determining the very specified act, identifying its typical features and formulating appropriate definitions. The article discloses the contents of the species of the object of the crime, namely environmental safety as a set of social relations that characterizes the functioning of natural environmental systems, natural and natural anthropogenous objects, natural elements of habitat (environment) of the human, precluding harming his health, property and other vital interests. Environmental safety characterizes favourable environment without negative impact of economic and other activities, emergencies, man-made disasters and their consequences. Accordingly, the environmental crime is defined as socially dangerous criminal act, which infringe on the environmental safety (favourable environment) and causes (or poses danger of) criminal law consequences. The article also discusses controversial issues of the subject of an environmental crime. The author concludes that it is environment as an aggregation of environmental components, natural, natural anthropog-enous objects, as well as man-made objects. The understanding of an environmental crime as violation of the vital interests of a person, the rules of environmental protection, mentioned in the literature, is erroneous, which entails distortion of these circumstances and their values in the composition of a crime in general and environmental crime in particular.
OPINION
148-155 630
Abstract
An essay is mainly devoted to determining the balance between the existential 'I' of a Man and Law in the light of the philosophy of existentialism. Attention is drawn to the distinction that has been made so far between jus and lex. For the philosophy of existentialism, it is important because the philosophy of existentialism is exploring the essential and the existential. More precisely, it is exploring the human being, his essence and existence. In this regard, the question is raised as to whether there are generally relevant and binding grounds of law, or whether it is law that amounts to the expression of force and traditions. To this end, a retrospective journey into the history of legal thought is undertaken, beginning with Ancient Greece to the present day. The philosophy of existentialism is a very complex phenomenon in the general line of cognition. The essay provides the author's understanding of this approach. An important place is allocated to characterize the phenomenon of freedom. The author emphasizes the limited nature of the interpretation of freedom as a cognized necessity cultivated in Soviet time and still in use today. The Man, in the exercise of his existential 'I', is exercising his own freedom and commits acts during which he encounters various barriers. In an effort to overcome them, the Man can cause harm to others. This is where lex (a law) outlining the boundaries and the limits of an action comes into force.
НАУЧНЫЕ МЕРОПРИЯТИЯ
ISSN 1729-5920 (Print)
ISSN 2686-7869 (Online)
ISSN 2686-7869 (Online)