No 10 (2017)
A STUDY OF RUSSIAN STATEHOOD
9-26 687
Abstract
The paper scrutinizes public law aspects of the 'people ' category in the context of creative heritage of the classical Eurasian doctrine. A Eurasian approach to the people and other social communities treating them as common, symphonic entities, rather than the mechanical sum of individuals, provides an opportunity to rethink the nature and the mechanism applied to implement constitutional legal capacity of the people, define the perspective nature of the development of the "rights of the people" category in unity with the idea of human rights, demonstrate the relevance of the structure: rights of the people - rights and duties of the person and citizen - rights and duties of the State and its bodies -- applied to ensure the legal balance of the content of the Russian Constitution. The author puts forward and justifies the thesis stating constitutional and legal importance of the people not only as the totality of living citizens, but also as a future generation of Russians whose interests are to be taken into account in making political decisions in the economic and social spheres. Much attention has been paid to the Eurasians study of an ethical component of the "people" category. Attention is focused on the historically justified prediction of the Eurasians that the class solidarity and dictatorship of the proletariat will not be able to preserve the unity of the USSR, nor can it withstand the development of nationalist and separatist aspirations of its peoples. What is important is that the creation of an ethnic (national) substrate is necessary for the establishment of a strong Russian multinational State. In the context of this conclusion the author considers the current problem of the further development of national relations in the Russian Federation. Analyzing the discussion that began with regard to the proposal of President Vladimir V. concerning desirability of drafting and adopting a special law on the Russian nation and supporting this proposal, the author emphasizes the conditions under which the law can become an effective instrument of the national policy. One can not fall into legal idealism and consider that the law itself can form a Russian nation. The formation of a nation is an objective historical process, and the law and other measures of state regulation can only either speed it up or slow it down. The foreign experience of forming the national substrate of the Russian state should also be used with a certain degree of caution. The concept of a 'melting pot' adopted primarily by the United States cannot be applied to Russia because of historical peculiarities of the statehood formation in our countries. Russia is not a country of migrants and settlers, who had created a new state in the USA In Russia, peoples have historically been linked to their territory and merged into one state not as separate entities but as ethnic territorial communities that treat preservation of their national identity as one of main tasks. The summary (although rather incomplete) of Eurasian studies devoted to the 'people' category is indicative of their undoubted relevance. The collective, 'symphonic' personality, i.e. the Russian people (the multi-ethnic Russian nation), not only forms the basis of the majority of the Eurasian theoretical structures, but it is also seen as the leading subject of real policy which social and spiritual condition determines the destiny of Russian statehood and the future of Eurasia.
LAW AND ECONOMICS
27-35 446
Abstract
The concept of individual pension capital that has doth supporters and opponents is being subjected to heated debate in the Russian Federation. A similar mechanism has long been successfully applied in the legislation of foreign states, thereby reducing the considerable burden on the State, especially in the United Kingdom and New Zealand. The introduction of individual pension capital abroad implies legislative consolidation of preferences for depositors (potential pensioners) and employers. The study of foreign experience reveals advantages of best practices application in the Russian legal system. The data given are particularly relevant in the context of the Russian Federation demographic and economic transformations that demonstrate the need to improve the pension system in order to ensure the subsequent provision of elderly population with the means of living. The pension systems discussed in the article have both similar and distinctive characteristics. The latter include: - the amount of the replacement rate that shows the extent to which pension systems are aimed at maintaining an individual standard of living of an employee transferring to the pensioner category; -determination of the role of the public or private sector in pension benefits. The examples of foreign practice reviewed in the article demonstrate that IPC systems are actively implemented and used in the public pension system and are in demand among among employable citizens.
THEORETICAL PROBLEMS OF BRANCHES OF LAW
36-46 906
Abstract
The paper deals with certain problems of the theory and practice of recording investigation activities as a requirement arising from historical traditions of national court proceedings and the general principles of the continental (Romano-Germanic) legal system. The author particularly emphasizes the legal significance of recording investigation activities as an undeniable merit of the Russian model of preliminary investigation. By this mechanism it essentially benefits before the relevant mechanisms applied in the Western countries, particularly in the United States of America. The first part of the article deals with the doctrinal, regulatory and application-oriented aspects of the investigation reports procedure. In particular, the author expresses skepticism about regulation of purely technical rules for recording investigative actions at the "high " legislative level. Such rules of investigative actions recording turn the federal law into a step-by-step instruction for illiterate and uncultured Investigators. In addition, a new application-oriented technology is proposed to familiarize investigation participants with the contents of protocols. The technology is based on the maximum comfort regime that is consistent with the legal value of the procedural form and that implies an adequate level of professionalism, legal awareness and responsibility of investigative officers. The second part of the article deals with the evidential value of investigative protocols in establishing circumstances relevant to a criminal case. Using the methodology of the previously formed concept of a "non-verbal" method of procedural cognition, taking into account the legal ambiguity of Art. 83 of the RF Code of Criminal Procedure, the author concludes that there is a serious doctrinal and legislative error, namely, the violation of the logical uniformity of the results of various investigative and other procedural actions. In the author's opinion, in some cases the evidence means a cognitive result, and in other cases the protocol itself is the form of recording of that result. In this regard, it is proposed to use unified methodological approaches both to the results of investigation activities and to the relevant protocols. The author argues that the evidence provided by Art. 83 The RF Code of Criminal Procedure, should henceforth be called the results of non-verbal investigative (judicial) actions.
NOVUS LEX
47-57 581
Abstract
After adoption in 2014 of the Federal Law of the Russian Federation "On Strategic Planning in the Russian Federation," contemporary studies carried out by leading legal scholars specializing in environmental law in the area of forecasting a state environmental policy have resulted in rapid formation of a sufficiently complete package of strategic planning documents needed to plan the development of an environmental regulatory framework, including strategic top level planning documents and supplementary (subordinate) documents, as well as documents of different duration, i.e. long-term, medium-term and short-term. At the same time, as the analysis in the article showed, these strategic planning documents often overlap and are largely related to environmental protection activities planning. The analysis of strategic planning documents in the environmental field and in the sphere of the State regulation of migration activities of the Russian Federation shows that there is a large amount of specific activities aimed at improving environmental law regulation and improvement of Russian migration activities, the instruments adopted do not provide for the establishment of a legal framework for the transfer and resettlement of populations from areas of environmental disasters of natural or technogenic character or from areas of environmental disasters where the constitutional right of a human and citizen to a favorable environment is violated. To remedy the situation, the author concludes that a federal strategic planning document for the development of environmental security in the Russian Federation should be adopted, a plan for the proposed measures should be appropriately linked to the relevant paragraphs of the strategic planning document in the area of state regulation of migration activities of the Russian Federation. The proposed strategic planning documents should define the stages of providing an effective mechanism for the legal regulation of population displacement and resettlement, including voluntary displacement and resettlement, from areas where the constitutional right of a human and citizen to favorable environment is violated (environmental migration).
PUBLIC INTERNATIONAL LAW
58-87 750
Abstract
The process of expansion of international courts that has been going on for more than twenty-five years so far has produced very extensive empirical evidence that not only assesses the correctness of theories and concepts that attempt to explain this phenomenon, but also draws conclusions concerning activities of international courts, determines their common characteristics and substantiates the emergence of some new trends in international justice. The author proceeds from the fact that the chaotic nature of the process of international courts appearance is a consequence of objective realities of contemporary international law caused by the absence of a single world law-maker and the existence of sovereign States with their dynamically changing priorities and interests instead of such a single law-maker. Today, proposals to form a centralized system of international courts similar to the national judicial system, or, at least, some kind of a judicial hierarchy among international courts presided over by the ICJ seem to be more than utopian. In practice, a particular international court is established only when the balance of benefits and preferences that are acquired by a founding state outweigh (as it seems to be) disadvantages and limitations that appear after the formation of the court. However, the process of establishing the courts cannot be formalized and, in each particular case, Nations operate through trial and error, using the set of measures already tested in practice to control ships. Among States, an attitude towards jurisdictional competition of international courts is changing, and it is understood that this competition should be encouraged. The competition of international courts is a part of the mechanism of checks and balances that is spontaneously developing now at the international level. In this competition, each court acts for itself, and an expected by many global community of judges has not appeared. It is conceptually and factually wrong to refer to the citation by one court of the decisions of other courts as a dialogue, because, in fact, in the absolute majority of cases, it is a unilateral citation of the decisions of well-known and authoritative courts made by regional, obscure or newly created courts, which is carried out not for the purpose of exchanging views, but primarily to enhance the legitimacy of their decisions in the eyes of their addressees.
PRIVATE INTERNATIONAL LAW
88-102 536
Abstract
The modern world order under the influence of globalization processes has changed considerably leading to a paradigm shift in law, to serious displacement °f concepts of law understanding contributing to the methodological crisis of modern theory of law. A new legal reality of the XXI century transformed by globalization and examined in the context of legal anthropology draws the new future of law that is created not only by state authorities, but also by private actors: A global business community or business elite by means of transnational and multinational organizations, supranational structures. A disciplinary matrix of private international law is also undergoing significant changes being at the forefront of the ongoing transformations. And if the system of private international law based on the postulates of a positivist legal science still does not include the rules of non-state regulation, the modern paradigm of private international law is already inconceivable without appropriate rules. Legal instruments used to regulate cross-border relations, the nucleus of which is formed by rules of law, are greatly enriched today by quasi-judicial (non-legal) means rather than new rules of law. A significant place is occupied now by rules of non-governmental regulation that in the context of this study are qualified as collective and the most "neutral" designation of norms of non-governmental origin governing cross-border relations. The process of active application of non-state regulation in the area of cross-border trade started in the sphere of transboundary trade regulation and has spread to virtually all types of trans-boundary law relations of civil nature, albeit with a very different degree of penetration and recognition of relevant rules, as well as with different admissible functionalities. A living, flexible, adaptive, self-organizing, mobile regulatory environment is shaped by supplanting, replacing, adapting, enriching traditional legal regulators. What is particularly important, and in the nearest future can lead to global consequences, is that the rules of non-governmental regulation form a special regulatory system of not ideally-abstract vacuum type that serves the purpose of modelling the future legal systems, but the system carrying out an obviously applied purpose as an "applicable law" in the context of well-developed and widely recognized destinator on the international scene, i.e. international commercial arbitration. In fact, there is some fundamental "rift" in the matter of law understanding and, as a consequence, enforcement (application of norms) in the practice of national courts in different countries and in the practice of international commercial arbitrations resolving cross-boundary disputes.. The term "rules of law" clearly understood by any domestic lawyer takes on new sacred importance in private international law and in international commercial arbitration. The author makes an attempt to assess developments in the context of private international law. The current legal reality that is being studied in the context of legal anthropology, synergetics, integrative approach to law provides new answers to contemporary challenges that are highly relevant to private international law and its institutions. This approach, i.e. examining developments in international private law through the prism of legal theory, allows for "updating", "enriching", "modernizing" the doctrine in question.
103-114 391
Abstract
Transportation of crude oil and its processed products has traditionally been classified as a costly and hazardous activity. The insurance of such cargoes is no less complicated. On the one hand, there is a need to pool the funds of shipowners. At the same time, the actual carrier is generally vested with responsibility for the occurrence of an event ensured. Insurance paying capacity is based on the costs preceding insurance payments. While it is easier to assign calculation of insurance costs to the consolidated group of insurers. Only then the limitations of liability are flawless and the nature of the risks correspond to the maximum level of insurance protection. Ultimately, the limits of liability are resistant to any loss. However, mutual insurance means creation of new insurance products where compensation and protection are firmly linked. The emergence of a powerful financial trust leads to the cumulation of assets and their targeted distribution. As a result, an extreme fragmentation of operational risk indicators is overcome. Fixed-term contracts advance commencement of payments of compensations for the primary risk alone. The guarantees of impending coverage shall be freely determined and the risk obligation shall be incorporated into the direct cost of insurance premium. The IOPC funds increase the liquidity of assets.
COMPARATIVE LEGAL STUDIES
115-122 465
Abstract
The article is devoted to the definition of the basic approaches to fulfilling the UEFA requirements to the national law of the host State in relation to the organization and staging of the European Football Championship on its territory. The authors review the main features and types of such requirements, as well as the experience of such States as France and Poland in this sphere. The authors formulate conclusions concerning possible problems related to the implementation of such requirements, and potential solutions. It is pointed out that the main difficulties associated with implementation of UEFA requirements into national legislation may be associated with a potential contradiction of some of these national requirements in the public interest or, in some aspects, public policy or principles of the legal system of a particular State. In this case, it is possible that the State refuses such requirements, emphasizing more efficient and detailed execution of other UEFA requirements using France as an example. It is stressed that the most expedient is to adopt a system of regulatory legal acts, establishing temporary legal regime for the implementation of certain activities. A number of proposals aimed at regulating the entry and exit procedures to/from the Russian Federation, the migration registration of foreign citizens and stateless persons in connection with the implementation of the activities of UEFA Euro 2020, which involve special legal regime in respect to the relevant persons. In addition to the above-mentioned special arrangements, the authors propose special procedure for the work activities during the UEFA Euro 2020. These include security provision, peculiarities of the implementation of foreign exchange operations and customs regulations, transport, protection and implementation of property rights, requirements to ensure fair competition, the development of communication and information technologies, as well as many other aspects directly related to preparation and staging of the UEFA Euro Championship 2020.
ENFORCEMENT MATTER
123-130 477
Abstract
The article deals with the issue of debates concerning the extremely high payments to the managing employees in the event of their dismissal - the so called "golden parachutes". The author makes a statement that legal limitation of the maximum amount of such payments (being three average monthly wages) is only acceptable for the state controlled companies. However, current Russian court practice puts the same limitations de facto to private companies as well. The author concludes that legal limitations for the private sector severance payments must be associated not with the maximum amount of payment, but rather with specific mechanisms of the abuse of rights in the moment of establishment or performance of such payments. This does not mean that there should be no legal framework for limitation of such payments whatsoever. The author concludes that the Supreme Court of Russia could offer tests that would allow courts to determine the fact of misuse of right in the process of establishment of such payments to the executive staff. Large severance payments in the industrialized market economies are often made in exchange for the obligation of the managing employee not to compete with the employer. Such agreements are called non-competition clauses or agreements. The article covers the illegality of such agreements under Russian law and concludes that they should be legalized, but subject to a significant number of restrictions associated with a term of such agreements, who such agreements could be concluded with, and a provision on loss of wages.
COMBATING CRIME
131-146 1059
Abstract
The article, based on the analysis of issues of criminal law classification of a number of component elements of corruption offences, formulates criminally meaningful features of "corrupt mediation." The author examines separate items of information about standard criminals, ways of committing a crime, and marks two important and practically meaningful patterns of corrupt mediation: a) they are mostly made repeatedly; b) they most often fall under the features of different, sometimes complex series of (real and ideal) offences. In forensic meaning, that is, for purposes of the preliminary inquiry, this group of socially dangerous assaults appears to be much broader than the total of acts subject to responsibility under Art. 291.1 and 204.1 of the Criminal Code of the Russian Federation. Special attention is given to criminalistically significant aspects of alleged mediation, when, for example, a bribe is requested or extorted by a criminal pretending to be a particular official without the latter knowing about such an act. These crimes are widespread, highly latent and represent an extreme public danger. As provided for in a number of provisions of the criminal law (Art. 291.1, 204.1, 159 of the Criminal Code of the Russian Federation and other related codes) the analyzed dangerous offence is defined as socially dangerous acts that are part of the criminal corrupt activities committed with the participation of corrupt mediator or alleged mediators (fraudsters). They are said to use a number of common ways: direct transfer of bribes (subject to commercial bribery) or part thereof on instructions from giving or receiving; other support to these persons in achieving any agreement between them; promise or suggestion of corruption mediation; theft by deception of the bribes or part thereof. Based on the proposed concepts and indicators it is proposed to form a methodology for investigation of the crimes analyzed. In addition, it is proposed to cover forensic investigation recommendations and criminal offences when classifying crimes according to the elements thereof in the context of this study, and it is proposed to refer to them as "related".
147-157 927
Abstract
The article reveals the criminological markers of drug crimes in Russia. There is a high degree of latency of crimes related to drug trafficking, reflecting the very deep penetration of drug addiction into society. The article identifies the regions with the highest and lowest proportion of drug-related crimes in the overall structure of the crime. The author draws attention to the specifics of organized and transnational drug crimes, influx of cocaine from Latin America and heroin from Afghanistan into Russia as two planetary centres of narcotics production, deliveries of synthetic drugs from China to the country. The author indicates that there is a criminal network for drug distribution through contactless dead drop illegal sale by means of the Internet or the international postal service. It is proved that the introduction of the system of rehabilitation at the federal level and facilatation of public-private partnerships can increase the capacity of implemented and to be implemented rehabilitation programmes in the Russian Federation. The article considers the cooperation between the Ministry of the Interior of Russia and the competent authorities of foreign States in combating illicit drug trafficking, which, despite Western countries' sanctions against the Russian Federation and international attempts for isolation, is being actively developed both in the framework of bilateral cooperation and multilateral format. Anti-drug activities and sectoral system of international cooperation to counter drug trafficking within the framework of the Presidency of the Russian Federation in the SCO and BRIC, participation as a member of the CSTO are being realized. The main trends in the drug situation, the mechanism of the narcotics industry reflecting four main groups of factors by which examines the economic, sociocultural and technological aspects of the drug being among them, are considered: 1) drug production; 2) drug trafficking; 3) social drug susceptibility; 4) criminal drug technology. It is concluded that the main factors influencing the complication of the drug situation, are the Afghan drug expansion, forceful accompaniment of drug trafficking, vigorous advocacy of the non-medical use of drugs by drug trafficking, active use of the Internet for purchasing drugs, the spread of synthetic drugs, mainly through the network of contactless retail traffickers, which involve mostly young people in this process.
HISTORY OF STATE AND LAW
158-170 447
Abstract
Mortgage lending for agriculture in Russia was closely connected with the internal problems of the State. In the first post-reform decades, weakening of the nobility (dvoryanstvo) manifested itself primarily in the reduction of noble land. It is obvious that the establishment by the Government of the Dvoryanskiy Bank was aimed at supporting the nobility. The Charter of the Dvoryanskiy Bank stated that the bank was to support tenure gentry by issuing loans under pledge of their lands. The opening of the bank branches on the 21th of December 1885 in Tambov province immediately caused feverish demand on credit. In 1889-1890 Dvoryanskiy Bank granted borrowers with additional privileges. Decree of 12 October 1889, and then a new Charter of the Bank, accepted on June 12, 1890, set adjustments to the activities of the Bank. As a result, the credit activities of the Bank developed in Tambov province in the most successful way. A specific test for both the Bank and its borrowers, were the consequences of the poor harvest of 1891 in many regions of Russia. In this situation, on 10 January 1892 the Emperor ordered to provide the councils of the Bank and its special departments with the right to spread out payments on applications of borrowers for a period ranging from 6 to 20 six months. Thanks to the provided benefits, the percentage of the estates in Tambov province assigned to the sale was low. State power continued to grace the privileged mortgage lending policy of the hereditary nobility. The manifesto of Nicholas II of 14 November 1894 announced the lowering of the interest rate on loans of the Dvoryanskiy Bank from 4 ½ to 4%. The results of this were quick: in the 1895 the amount of mortgaged land rose markedly. In general, from 1895 to 1900 the volume of lending operations in Tambov province rose annually. Meanwhile, the development of mortgage crediting of agricultural lands in the late 19th century did not lead to a significant increase in agricultural production. Initially accumulated capital was not enough for transition of the whole Russian economy to the industrialized regime. The process of retooling of the industry was interrupted by the 1917 Revolution.
171-186 841
Abstract
The implementation of new economic policies caused transformation in local governance. They are considered as a reform, but their incomplete nature is noted. There are following directions of the reforms: changing of the organizational structure of the Soviet institutions; administrative territorial reorganization; the democratization of the electoral legislation; recognition of municipal property and property rights of local councils; the formation of balanced budgets. The unified concept of the reforms was missing, although all conversions were synchronized. The peak of reforms falls on 1924-1926, and despite the positive results, they did not received any further development. The political leadership did not designate clear reform goals, local leaders did not always understand their content and purpose. Created as a result of the administrative territorial reform provinces and regions could potentially develop as economically self-sufficient entities. Districts, cities and other villages acted as organs to the uttermost close to the needs of the population. The implementation of the reform dragged on and led to adjustment of unambiguous lines on the consolidation of the administrative territorial units. The organizational restructuring aimed at simplification and reduction of the local machine. The powers and jurisdiction of individual agencies were clarified. The property rights of local councils were recognized. They had a significant amount of municipal property. They could choose how to operate it. Most of these objects were leased or pooled into trusts. The establishment of local budgets at all levels (except agriculture) provided the financial stability of the local authorities. The most systematic were transitions of the lowest bodies - rural authorities and councils. The "new course" policy was proclaimed. Its realization can be considered a separate reform. Districts were created instead of volost. District authorities obtained significant powers. The district budget was formed. The liberalization of the electoral legislation made it possible to bring credible and respected peasants to the Deputy Corps. The "new course " policy revealed problems and contradictions typical of other reform areas. The legislation formulated rules that opened the possibility of independent actions of local councils. Upon the occurrence of the first serious signs of such autonomy (the outcome of the election, economic activity, fiscal stability), the authorities took restrictive measures.
DISCUSSION PANEL / PRO ET CONTRA
187-195 1353
Abstract
The article is devoted to the analysis and prospects of improving the current procedures for the formation of bodies of State power in the Russian Federation serving as a mechanism for empowerment and legitimization of these bodies both at national and international level and being the primary stage for functioning institutions of the mediated democracy. The instability of constitutional legal regulation and practice testifies to the active search for optimal ways of development in this area. The author mentions that in the modern legal reality there exist different kinds of election procedures (depending on the electoral system), appointments (taking into account the related procedures for the selection, coordination, approval, etc.) and their hybrid combinations. The main problem here is the absence of stands and uniform standards in their use of situational forms for empowerment of a public authority, which is fraught with inefficiencies not only created authorities, but also with undermining public confidence in public institutions. The problems of legal regulation of existing procedures also include their excessive settlement, complexity, gaps, duplicative rules, other factors of corruption, which does not make it possible to implement the procedure, that makes it difficult to use or creates the potential for abuse in the formation of public authorities. Russian law often lacks procedures involving the declarative nature of their respective substantive legal standards. In view of such issues the article considers separate electoral procedures, the procedures for the formation of the Federation Council of the Federal Assembly of the Russian Federation and bodies of executive po wer in the Russian Federation. The author suggests developing a theoretical framework that would make it possible to systematize the procedures for State bodies in order to unify the principles of their application, basics of interaction of participating subjects. This would eliminate the negative elements in their use (usurpation of power, indefinite latitude of powers incidental political preconditions, etc.) and eventually will increase the efficiency of the activities of the public authorities in the the source of power, and will forward constitutional and political evolution of the State in a certain direction.
ISSN 1729-5920 (Print)
ISSN 2686-7869 (Online)
ISSN 2686-7869 (Online)