No 1 (2018)
THEORY OF LAW / THEORIA LEX
9-24 2418
Abstract
The article deals with the problem of legal nihilism that was reflected in the works of Russian and foreign writers, representatives of social and political thought. Nihilism as a complex social phenomenon was, for the first time, subjected to consideration in the works of Russian writers. Nihilist sentiments were widely spread in the second half of the 19th century. Similar processes took place not only in Russia, but also in the countries of Western Europe. Nihilism has many forms of its objectification. In its original form it meant a protest against traditions and traditional conservative values. It should be noted that nihilist tendencies developed mainly among intelligentsia belonging to different soccial classes. However, to some extent, they spread in the upper strata of the society as well. The paper focuses on legal nihilism, within which such values as the State, power, the law, law and order are being questioned. Indeed, despite some common features, legal nihilism in Russia did differ from legal nihilism in Western countries. It can be clearly seen in works of classics of Russian and foreign literature. The article describes the essence, content and forms of legal nihilism on the basis of works of representatives of the domestic legal science.
THEORETICAL PROBLEMS OF BRANCHES OF LAW
25-42 566
Abstract
The paper highlights that the science of criminal law and criminology need serious modernization. In this regard, it is suggested, inter alia, that an economic approach be applied in criminal and criminological studies. Using representative examples the author demonstrates the possipility of its application. In particular, an economic law of diminishing marginal utility of the good is noted. The manifestation of the aforementioned law in criminal law is the prevalence of crimes that possess the quality of either increasing, and, thus, facilitating the need of society in criminal repression, or decreasing, which affects criminalization of acts and the imposition of criminal penalties. Under the law of diminishing marginal utility, when the crime is being investigated and detected the priority should be given to the most serious crimes. Meanwhile, domestic criminal statistics refutes these assumptions. As a positive example of combating crime the author gives the example of Germany. By means of the theory of marginal utility, the paper determines a number of laws that concern the application of criminal penalties in response to a committed crime: 1) Harmfulness of punishment is determined by the subjective evaluation of an offender who is serving it, and not by the court imposing punishment; 2) harmfulness of punishment increases with each new unit of the bad and is determined by the ultimate harmfulness of the marginal unit of the bad. Harmfulness of the bad, as well as the usefulness of the good, has boundaries beyond which the bad gradually loses its properties (for example, the maximum harmfulness of a fine is limited to the aggregate value of property belonging to the offender). The article also proposes to take into account a cyclical character of the society development. In particular, cyclical fluctuations of relevant indicators are demonstrated by the example of the registered crime dynamics. However, it is noted that there is no absolute correlation between the cycles of economic activity and crime and criminal law regulation. It is proposed to allocate seasonal, short-term (up to 3-5 years), middle-term (to 10-15 years) and long-term (over 10-15 years) cycles of crime and crime control. The paper proposes to use a system of indicators to be used in the field of crime prevention.
NOVUS LEX
43-56 819
Abstract
Forest fires constitute a major factor that negatively affects an environmental and resource potential of Russian forests. The problem of fighting forest fires in the context of forest legislation reform is becoming more and more topical. The article highlights that, despite the measures taken, the majority of negative tendencies that negatively influence protection of forests from fires, remain. The author analyzes the legal consequences for the formation of an effective system of prevention and suppression of emergency situations caused by forest fires by means of adoption of Federal Law of June 23, 2016 № 218-FZ "On Amendments to the Forest Code of the Russian Federation and Separate Legislative Acts of the Russian Federation with regard to Improving the Legal Relations concerning Forests." It is shown that legislation in the field of protection of forests from fires has undergone drastic changes aimed at ensuring effective coordination of actions of various departments and bodies for the purpose of prevention and suppression of forest fires, as well as increasing responsibility of all participants of forest relations including citizens. On the basis of the analysis the author formulates proposals for improving legal mechanisms of forests protection.
ENFORCEMENT MATTER
57-70 875
Abstract
The article provides a general analysis of a domestic civil law mechanism of protection of business reputation of citizens and organizations. The paper determines the elements of the most widespread and obvious crime resulting in depreciation of business reputation of subjects of civil legal relations, i.e. defamation (communication of false statements defaming the honor and dignity or business reputation of the claimant); the author provides a comprehensive definition of each particular element. The paper provides a critical assessment of the views of other scholars concerning the elements of the crime in question. The author reasonably infers elements of two offenses related to defamation - according to the author's terminology - disinformation and discredit (the former is included into the current Russian legislation, the latter is proposed to be included into positive law). While defamation is given pride of a specific place among offenses that are detrimental to the business reputation of individuals and legal entities, the author identifies other possible ways to depreciate this intangible benefit and highlights their multivariance. The article contains an overview of the system of ways available under civil law to protect business reputation of citizens and organizations; the criteria formulated in the legal literature and the methods of their classification are subjected to critical analysis. The paper suggests the author's division of special ways of protection of business reputation into primary and derivative ones depending on what is the main purpose: Rehabilitation manipulations with the damaged business reputation itself, or elimination of negative consequences caused by impairment of business reputation in the activity of the subject of protection. The classification described in the paper is aimed at strengthening control over effectiveness of the use of appropriate protective instruments. The authors express a positive attitude to compensation of intangible harm caused to legal entities as a promising way of protection of business reputation under civil law. The paper analyzes the problem of measures taken to secure claims related to the protection of business reputation of citizens and organizations in the form of injunction that prohibits further communication of defaming information about a claimant. The author emphasizes the importance of respecting the balance between the constitutional principles of freedom of thought, speech and mass information - on the one hand, and inviolability of private life, protection of dignity and good name - on the other hand.
INTERNATIONAL LAW
International Cooperation of States in the Field of Health Protection: Analysis of Current Practices
71-82 670
Abstract
The right to health protection is an inalienable right of every human being, since health itself is a prerequisite for his biological existence, and, in many ways, it determines the possibility of socialization of individuals. Being aware of this fact, most modern states have enshrined the right to health protection (in one way or another) in their Constitutions. At the same time, such legal perfection does not necessarily mean the possibility of actual implementation of the right to health protection, which is, to a large extent, predetermined by the political, economic and cultural conditions in a country. Poor economy, political instability and low literacy rates in a number of regions of the world prevent the right to health protection from being granted to a wide range of countries. However, it does not deprive them of the opportunity to implement this right for the benefit of peoples of these countries using a universal mechanism of international legal cooperation. The mechanism mentioned above is considered as a separate mechanism for the implementation of the right to health protection. The article provides theoretical and legal arguments in favor of this provision. It is concluded that, in general, the mechanism of international legal cooperation is a comprehensive legal institution consisting of two components: An institutional mechanism (organizational and structural), and a mechanism of law enforcement. This mechanism with regard to health protection is subject to a comprehensive description. The study uses methods of logical justification, objective comparison, linguistic analysis, etc. An analysis of structural components (based on the author's understanding of the problem), as well as functioning of the mechanism of international legal cooperation in the field of the right to health protection, makes it possible to highlight its specific features, the main of which are: Comprehensive nature, separateness of legal instruments, flexibility of the legal regime, universality, high degree of interdependence of the subjects of cooperation. The mechanism of international cooperation is regarded as an effective instrument for the implementation of the right to health protection, and the health sector is regarded as a basis for international cooperation in other areas.
ПРАВО ЕВРОПЕЙСКОГО СОЮЗА
83-102 996
Abstract
European civil procedure is a conditional term that represents a supranational sphere of cooperation and harmonization of civil procedural law rules of the European Union Member States. Harmonization of civil procedural rules has not only positive, but also a number of negative aspects. Thus, European civil procedure is deprived of any internal structure and cannot be called a complex institution. European Union law rules mainly concern cooperation between States, they are deprived of such basic concepts as purposes, goals and principles of a branch of law, and do not regulate the procedure of proving and litigation. European civil procedure has developed through adoption of independent acts concerning relevant issues, which made it possible to resolve immediate problems, but when such acts become numerous, lack of systematization inhibits further development. Both the adoption of the Code and the adoption of more specific acts could help solve the problem. The scope of application of European civil procedure rules is limited to transboundary cases. A situation may arise when there is no any analogue of the relevant "unified" procedure at the national level. Thus, the advantages of the European civil procedure cannot be used to resolve a domestic case. It is impossible to use them with regard to third countries, moreover, the European project of procedural unification is opposed to the worldwide efforts on unification and harmonization of procedural law. Parties to the cooperation differ depending upon the sphere of cooperation, but the list of these States is exhaustive, none of the Sates intending to join the European Union can obtain such a status. However, given that the European civil procedure is not codified, this situation still undermines the unity of "a genuine European space of justice." There is no unified legal basis for the adoption of procedural rules: The competence of the European Union is limited by the principles of subsidiarity and proportionality, which makes it possible to adopt only such legal acts that have a clearly established legal "basis" in constituent agreements. Another notable problem is optionality of some requirements of European civil procedure. The current European procedural regulations are not only autonomous, but also optional, which means that the applicant is granted the right to choose whether European or national procedures will be applied to deal with the case.
PRIVATE INTERNATIONAL LAW
103-114 582
Abstract
The question of approaches to defining the content of the closest connection principle is one of the most important and neglected in private international law. The research is devoted to the conflict, material legal (mixed) and subjective approaches. Special attention is given to a mixed approach that fully exposes the content of the closest connection and, therefore, receiving more development in the law of the United States, the EU, China, Russia and other countries. It is concluded that the mechanism of the mixed approach is based on simultaneous account of the public interests and conflicting presumptions. The public interest, as a vector, together with the appropriate amount of presumption form the closest connection to the legal relationship. On the basis of a detailed analysis of the legal norms it is established that under the mixed approach the modern legislation uses several ways to consolidate public interest in order to determine the closest connection. The legislator either specifies the public interests (objectives) to the law enforcer that must be taken into account and not infringed, or sets whose interests the law enforcer must promote in choosing the law, or directly allocates specific criterion for such interests. The author analyzes the reasons for the uncertainty and inconsistency of the subjective approach based principally on a lawyer's search of presumed intentions of the parties and, therefore, is not only a synonym, but also a recurrence of the rejected by the contemporary private international law approach on hypothetical will of the parties.
FOREIGN LAW
115-125 420
Abstract
The article describes the process of the formation of the legislative base of the People's Republic of China in the sphere of regulation of the linguistic relations and analyses the main problems related to the protection of linguistic rights. The context of this research is the history of the concept of linguistic rights at the international level in the 1990s. The author analyzes the main international legal instruments containing appropriate rules. By means of continuous sampling in the main part of the article the author studies the existing legislation of China that this or that way govern the linguistic situation and the status of the languages. Based on this analysis the author concludes that there is a lack of elaboration and definition standards contained the legislation. Following the example of inter-ethnic conflicts, the author shows how technologies of implementation language legislation create obstacles in establishing relations with national minorities, forcing them to consider their rights infringed. As a specific problem of linguistic relations in China, the article highlights the issue of the status of the dialects of the Chinese language. The study of the collected regulatory material shows that the unequal status of the language and dialects is leading to practical inequality of citizens of the country. In general, the comparison of the protection of linguistic rights in Europe and China suggests that while in the West the wide interest fades away, in China it continues to gain relevance.
COMBATING CRIME
126-143 1335
Abstract
The improvement of criminal law is the most important part of optimizing the system of legal regulation in the fight against organized crime in general. Based on the years-long research of organized crimes conducted by the author, the article formulates proposals for the improvement of criminal legislation with a view to optimizing the system of legal regulation to combat organized crime. The author believes that the optimization of the criminal law must be carried out in two main directions: the improvement of the already existing provisions and institutions, and inclusion of new provisions and institutions aimed at enhancing the effectiveness of the fight against organized crime. On this basis, the author proposes to separate criminalization of criminal gangs and criminal organizations; to further improve the codified concept of "criminal activities"; to designate any intentional offences, committed by the participants of organized criminal groups as a category of particularly grave crimes; to introduce criminal liability of legal persons; and to improve the implementation of the institute of a criminal record. The author formulates and justifies several proposals relating to sentencing, in particular, the need for significant expansion of the scope of such existing types of penalties as fines and deprivation of the right to hold certain positions or be engaged in certain activities, and the need to supplement the list of punishments, enshrined in Art. 44 of the Criminal Code of the Russian Federation, the penalties of an economic nature and returning to the "confiscation of property" as a form of punishment. It is justified that increasing the effectiveness of the fight against organized crime is directly connected with the necessity of also a broader criminalization of organized criminal activities in the special part of the Criminal Code of the Russian Federation. Since this is a wide-ranging and multidimensional activity, the existing in a special section of the Criminal Code of the Russian Federation rules criminalize even not all basic elements of this activity. Some of the most important elements of organized criminal activities, which are subject to criminalization, are those activities that have not been promised, i.e. to promote a criminal organization or association of wrongdoers; to harbor participants of organized criminal groups; propaganda and public justification of crimes. As organized criminal groups actively oppose law enforcement bodies, it is proposed to optimize the provisions of Chapter 31 "Offences against Justice" of the special part of the Criminal Code of the Russian Federation.
АКТУАЛЬНЫЕ ПРОБЛЕМЫ ЮРИДИЧЕСКОГО ОБРАЗОВАНИЯ
144-156 561
Abstract
The article is devoted to the problems of modern higher education in Russia. Moreover, the author demonstrates the serious shortcomings of the modern system of higher education in the country following the analysis of the obvious for the most part of Russian teachers defects of higher legal education: underfunding of higher education (meaning not only low salary of the greater part of the teaching staff in the country, but also reducing the cost of upgrading the material and technical base of the universities), tremendous growth of teaching load per teacher (first of all the so-called in-class load), a significant reduction in the number of Dissertation Boards responsible for the awarding degrees in law (especially outside the European part of the country), admission to Master's Degree programmes of persons without basic legal education, imperfection and constant updating of educational standards, without changing the content of the educational process, the bureaucratization of education and transition to "effective" contracts reduce the protection of labor rights of the Russian teacher. Applying the sociological research methods the author questions the validity and effectiveness of the basic ideas of the reform of higher education implemented by the Ministry of Education and Science of the Russian Federation in recent 10-15 years. Because of this "new education" policy, almost 50% of academic staff is going to lose their workplace at Russian universities, and, therefore, after a change of generations it may happen that there will be no one to work there. Modern Russian educational reform aimed at reducing the overall number of budget places in universities (especially the budget places in the sphere of the Humanities), and the State support for vocational education, will lead to a greater technological backwardness of Russia, compared with the world's leading economies in the next 10 years. The global trend in modern education is, on the contrary, the constant increase in the number of people who have received higher education, particularly in the context of the beginning of the era of the digital economy. Only a sharp increase in expenditure on education to 5-6% of GDP in the coming 3-5 years, while adjusting the directions of the higher education reform can prevent inexorably looming collapse of the entire Russian system of higher education .
157-163 539
Abstract
The article analyses the existing normative legal acts on organization and conduct of internships. Rights and responsibilities of educational and relevant organizations disclosed in more detail in contracts on organization of practices that have been developed by various universities and organizations of secondary vocational education. As essential conditions of the contract on organization and conduct of internships there should be enshrined the following: the subject matter of the contract, conditions of the place, time for the internship, the condition on the correspondence of the place of internship with the programme of the internship and the tasks assigned by the Head of the internship on the part of the educational institution, the condition on the list of trainees assigned to practice. It appears that the legal nature of the agreement on the organization and conduct of internships of students is a contract for services. According to legal characteristics such an agreement is considered consensual, mutually binding, continuing, onerous or gratuitous. An agreement on the organization and conduct of internships of students should be differentiated from an agreement on the network form of realization of educational programs. Distinctive features include the following: the subject of the agreement on the organization and conduct of internships of student is much narrower; it consists of activities of educational and relevant organizations only in the area of transferring practical skills to students; significant terms and conditions of the contracts being compared are not identical; the agreement on the organization and conduct of internships of students is concluded with one organization and, if necessary, several bilateral agreements of the same type are concluded with different organizations; undertaking internships of students during the studies is necessary for levels of vocational education; upon completion of the internship the issued document is taken into account when taking a State Final Examination, but has no independent meaning (it is not confirmed qualification).
ПРАВОВАЯ КУЛЬТУРА ЮРИСТА
164-174 329
Abstract
The article notes that in the legal literature authors, understandably, focus mainly on the analysis of the professional side of the lawyer's life. While non-professional side of their life remains aloof from the researchers. Meanwhile, they influence each other and are in a specific relationship. That is why the the way lawyers spend their free time is not only of scientific but also of practical interest. In this regard, the article provides the results of a sociological survey conducted by the author on the study of professional culture of lawyers. The author demonstrates how professional specialization, work experience, age and other factors influence the way lawyers spend their free time.
DISCUSSION PANEL / PRO ET CONTRA
175-195 810
Abstract
The development of cybernetics resulted in the birth of modeling method as a general scientific method, and made unity of theory and practice become, by far, more qualitative than, until then, governing statistical method. In the field of social science, this method has appeared as the modal experiment. Using these fundamental experiences, in this work, the authors firstly explain the concept and structure of modeling, at the same time speaking about the concept and types of modeling, and then the concept and types of experiments, that is, its basic model in model experiment, and in the end, they elaborate the possible conceptual model of security system of the Republic of Serbia and modal experiment variables. In this model it is possible to vary and change the quality, intensity, dynamics and quantity factors. With the help of this model, it is possible to determine the power of accomplishment and tendencies. To achieve this simulation as forecasting, research technique has been applied. Conceptual model has been seen from the aspect of strategically doctrinary, legally normative and organizationally functional aspects, having been in compliance with security movements in the world, needs and objective possibilities of the Republic of Serbia.
ISSN 1729-5920 (Print)
ISSN 2686-7869 (Online)
ISSN 2686-7869 (Online)