No 4 (2018)
THEORY OF LAW / THEORIA LEX
7-22 582
Abstract
The paper is devoted to the modern state of development of jurisprudence, and it defines the objective of new substantive and conceptual foundations of the scientific discipline. The study of the issue in question implies a wide cultural and interdisciplinary context of theoretical and practical rethinking of the subject and structure of the juridical science. A cultural-historical perspective in understanding law as a linguistic and cognitive reality, which is at the same time figurative, symbolic and conceptual, constitutes, in our opinion, the direction and approach to its research that facilitates understanding of actual meanings and values of law in various civilizational (discursive) practices of social intercourse. The analysis of changes in the system of legal knowledge per se or in its subject, structure and the language of jurisprudence in the sociocultural context of certain historical epochs of the juridical science development encourages determination of the fundamental role of the juridical science in the formation and development of the legal system as a whole.
23-36 24257
Abstract
In the modern juridical science, scholars name both traditional forms (sources) of law and the forms (sources) the legal nature of which as the existing forms (sources) of law in the legal system of Russia is equivocal. The paper scrutinizes the forms of law known to the legal systems of the world and provides the author's understanding of their legal status in the Russian legal system. Also, it names the factors on which the structure of the forms of law depend in the legal systemin question. All the existing forms of law in relation to the modern legal system of Russia are classified as one of three groups: 1) forms of law formally recognized by the State (a legal custom, a normative legal act, a normative contract); 2) forms of law that are not formally recognized by the State (religious norms, legal doctrine, individual legal acts, individual contractual acts, legal consciousness, legal culture); 3) forms of law the legal status of which is not formally defined, and is ambiguously perceived by an academic community and practitioners (legal precedent, legal practice, acts of interpretation of law, general principles and norms of International Law). The existing limitation of formally recognized forms of law is explained by long-term prevalence of the doctrine of positivism in the domestic jurisprudence that was harmoniously combined with the Marxist-Leninist theory of law. In turn, prevalence and a privileged position of the normative-legal act has inevitably led to "governmentalization of law" [ogosudarstvlenie prava]. With the consolidation of democratic foundations in the society and the State, it is possible and even appropriate for the State to expand formally recognized sources of law that are adopted by various actors, including non-State actors. The paper specifies some conditions under which the increase in number of forms of law of the RF is permissible and justifiable.
37-52 743
Abstract
Legal systems dynamic development encourages researchers to focus on basic categories of jurisprudence and to rethink them in the light of changes in social and humanitarian reality. An objective necessity to ensure the interests of the State and society, on the one hand, and private interests, on the other hand, have predetermined the existence of relatively separate legal areas: Public and private law. The issue of the existence of specific types of legal responsibility adapted for the protection of public and private interests, is being developed. A unique set of measures of legal responsibility under the joint name of "private-law responsibility" scrutinized in theory and widely applied in practice needs in its consistent understanding by the legal community in the light of its nature and main content. The paper provides complex approach revealing peculiarities of private law and its main protective instrument, i.e. private-law responsibility. Based on the analysis of normative, scientific, educational and reference literature, and approaches to law enforcement, the author comes to the conclusion concerning an independent importance and role of private-law responsibility in the legal regulation. The author has examined the purpose of its determination and application, the sphere of application, forms of manifestation (types), legal confirmation, factual foundation, participants involved, the form and mechanism of private-law responsibility implementation. In the course of the research the author scrutinised the issues of interrelation between objectives of private law and private-law responsibility, penetration of private-law responsibility in the sphere of public law, interrelation between the structure of private law and the types of private-law responsibility, its forms depending on the possibility of specifying a sanction in a legal contract. The paper determines the content of a private-law tort applied as an factual basis for responsibility, enumerates peculiarities of primary and derivative subjects of private law, i.e. participants of legal relations of responsibility, and reveals specific criteria of implementation of private-law responsibility in voluntary and involuntary orders. The author draws generalized conclusions in accordance with the results of the study conducted by the author.
INTERNATIONAL LAW
53-69 790
Abstract
The paper considers international economic constrains imposed by the UN Security Council and individual States on the DPRK in connection with the implementation of the North Korean State nuclear programs. The author scrutinizes the reasons for non-application of constrains to the Hassan-Rejin Russian-North Korean Project on expoting coal supplies from the port of Rajin (Rason) to China and the Republic of Korea. The paper considers the prospects of formation and development of international transport corridors in connection with integration processes in the Far Eastern region, reveals the interests of the States (the RF, the PRC, the RK) affected by the introduction of restrictive economic measures against the DPRK, determines the peculiarities of the project implementation in connection with the issues of the DPRK foreign debt repayment to the Russian Federation, provides the author's understanding of the North Korean problem solution and the development of the Russian-North Korean cooperation with regard to the implementation of new projects.
NOVUS LEX
70-80 1516
Abstract
The issue concerning the interrelation between the concepts "abuse of dominant position" and "abuse of the right" has not been explicitly resolved in the legal doctrine so far. The paper the categories in question are compared against the following criteria: 1) composition of grounds for application; 2) purposes of legal regulation; 3) legal consequences of violation of norms in question; 4) principles of legal regulation; 5) the balance between private and public interests in the formation of the model of legal regulation of categories in question. The author considers the basic doctrinal approaches concerning the interrelation between the categories "abuse of the right" and "abuse of a dominant position." One approach is based on the identity of these categories, and the second approach, on the contrary, is based on their differentiation. Also, the paper scrutinizes a wide range of law enforcement practices applied by the FAS of Russia. The paper concludes that the presence of the market power provides an opportunity for the participant that possesses characteristics of the dominant position to enjoy his or her rights within the limits of common legal capacity unconscientiously (in bad faith) in in order to gain economic advantage (to the detriment of other market participants). Accordingly, the author argues that abuse of the dominant position should be regarded as a specific case of abuse of the right. In order to improve the antimonopoly legislation, de lege ferenda, it seems that, due to the peculiarities of the RF FAS law enforcement activities and functions, its competences should be significantly expanded in terms of the possibility to apply direct (cross-cutting) principles of civil law, such as the principle of reasonableness, the principle of fairness, the principle of good faith one of the elements of which is the principle of prohibition of abuse of the right. The author concludes that abuse of the dominant position cannot be regarded as anything but a form of abuse of the right that results or may result in preventing, limiting, or eliminating competition and (or) infringement of interests of other persons (economic entities) or uncertain circle of consumers in the sphere of business activity (Part 1 Art. 10 of the Federal Law "On Protection of competition). Besides sanctions provided for by administrative legislation, the denial of protection of the right (Para. 2 Art. 10 of the RF CC) and compensation for damages (Para. 4 Art. 10 of the CC) can be resorted to as consequences of abuse of the dominant position.
PRIVATE INTERNATIONAL LAW
81-97 3694
Abstract
The analysis of domestic and foreign legal acts and doctrine leads to the conclusion that the distinction between super-mandatory and mandatory provisions is possible only based on separation of the spheres of public policy in the country (in the sense of private international law or the meaning of civil law). The definition of these areas and their constituent standards is possible through establishing public interests provided by these rules. The super-mandatory provisions (article 1192 of the Civil Code of the Russian Federation) and provisions applicable in the framework of the public policy exception (article 1193 of the Civil Code of the Russian Federation) make up a sphere of "public policy in private international law". These provisions are based on public interest, which are constitutional meaningful values. Mandatory provisions, ensuring the safeguard clause provided for in paragraph 5 and paragraph 6 of article 1210 of the Civil Code of the Russian Federation and paragraph 2 of article 1123 of the Civil Code of the Russian Federation, cover the sphere in which the doctrine of private international law relates to "public policy in the sense of civil rights." Mandatory provisions are based on public interest, not related to constitutionally significant values. It is established that a universal criterion for determining the need to use super-mandatory and mandatory provisions of foreign law protecting different areas of public policy from foreign law is the criterion of damage to the interests of public policy associated with negative consequences. It is concluded that in contrast to the established in the legislation concept of "norms of direct applicability" (article 1192 of the Civil Code of the Russian Federation), adopted in the national legal doctrine, the term "super-mandatory provisions" conforms to the rules of the Russian language and legal technique. The prefix "super" indicates not only the hierarchy but also the system of norms in the bunch of "super-mandatory provisions - mandatory provisions". The term "norms of direct applicability" does not provide such a system of hierarchy.
ENFORCEMENT MATTER
98-107 666
Abstract
The organization of anti-corruption events is an interrelated and interdependent set of measures of legal, social and organizational focus, covering diverse areas of activity of subjects of anti-corruption relationships with the goal of creating the necessary conditions for effective fight against corruption. Special collegial bodies play a crucial role in the organization of corruption counteraction as they have exclusive competence for considering anti-corruption issues: the establishment of the fact of presence (absence) of a conflict of interest, breach of requirements to office (official) status of state (municipal) employee, decision-making about the possibility of overcoming restrictions on labor activity by a person dismissed from state (municipal) services, etc. The specifics of the legal status of various categories of subjects of anti-corruption relations (state civil servants, municipal servants, workers), as well as the specific local conditions determined the presence of differentiation such collegial bodies. The author, highlighting the positive aspects of legal regulation of activities of collegial bodies for consideration of anti-corruption issues through the analysis and comparison of their powers, comes to the conclusion that there are significant shortcomings in the regulation of these relations, negatively influencing both the effectiveness of anti-corruption measures, and the objectivity and impartiality accepted by such collegial bodies decisions. In addition, the article focuses on the differences in the competence of the collegial bodies dealing with corruption issues and the procedures for their decision-making, due to the peculiarities of the legal status of the entities of anti-corruption relations, and the unreasonable distribution of powers between the members of the said collegiate body. The author offers ways of improvement of legislation on anti-corruption measures.
COMBATING CRIME
108-120 1896
Abstract
The article considers topical issues of fighting a new form of crime - cybercrime. This category of crime is relatively new to the criminal legislation of Russia, which is due to the fact that in the last decade, with the rapid development of information technologies there has appeared a new form of socially dangerous acts related to trafficking information, and even the long-known criminal acts (e.g. fraud) have undergone a significant transformation. The author considers some of the previously proposed definitions of cybercrime, identifies their strengths and weaknesses. The conclusion is that the separation of information crimes should not connect directly with the presence in their elements of features related to information, but due to the fact that their mechanism involves the use of information technologies and (or) information and telecommunication networks. These crimes are high-tech in nature, which leads to significant specific features of criminological and forensic investigation techniques. The following main groups of information crimes have been outlined: specific information crimes, crimes of general criminal nature where the application of information technologies significantly facilitates the commission of criminal acts or the concealment of its traces, provides for a systematic and widespread commission of criminal acts and also crimes of general criminal nature, where the use of such technologies has no significant impact on the criminal outcome. The author points out the place where each of these categories can be found in the criminal law. In addition, the author investigates the question of the place of information features in the structure of an offense, following the examples of defamation, computer fraud and unlawful access to computer information. It is concluded that there is some undesirability of dealing with information as the subject of crime with regard to its intangible character; alternatives for referring the information to other elements of the crime are suggested.
121-135 1768
Abstract
In the Russian Federation special attention is given to combating corruption and, in particular, increase of level of responsibility for corruption crimes and improvement of law enforcement practice in this area (p. 46 of the National Security Strategy of the Russian Federation approved by the decree of the President of the Russian Federation of December 31, 2015 No. 683). In this regard, the relevance and practical importance is the evaluation of the results of anti-corruption measures and their influence on the state of corruption. The author analyzes and illustrates with judicial and investigation practices the contents of the list No. 23 for the corruption-related crimes, approved by the Directive of the Prosecutor General of Russia No. 65/11, Ministry of Internal Affairs of Russia No. 1 of 01.02.2016. The author characterizes the meaning of a true (legally competent) understanding of all officials of public authorities and local self-government and citizens of the circle of corruption crimes as unlawful acts, not limited only to bribery (articles 290-291.1 of the Criminal Code of the Russian Federation) in the light of the implementation of the urgent directions of the National Anti-Corruption Plan for 2016/2017, approved by the Decree of the President of the Russian Federation No. 147 of 01.04.2016. Based on the study of official stats on the state of corruption and certain types of corruption crimes, and on convicted in 2012-2015 (under articles 290 and 291 of the Criminal Code of the Russian Federation in 20012015) in Russia, the author reveals significant changes of the criminal situation related to corruption crimes at the present stage. Among them: - steady decrease in the percentage of corruption crimes in the overall number of general crimes: from 2.15% in 2012 to 1.36 % in 2015; - steady and rapid increase in the percentage of bribery in the overall number of corruption crimes (articles 290 291.1 of the Criminal Code of the Russian Federation) (+109,3%): from 20.5% in 2012 to 42.9% in 2015; - the number of the recorded facts of bribery has exceeded the number of registered facts of bribery for the first time in 2015 (for the past 15 years); - with the annual decline in the number of registered corruption crimes (34.5 %) there have been a steady increase in the number of convicted persons for corruption crimes (+ 91,2%).
HISTORY OF LAW
136-151 619
Abstract
For expansion and establishment of the Russian authorities in the Trans-Caspian region, different methods of involving the Turkmen population into civilian and military service were used: 1) education of children in Russian schools; 2) delegation of immediate executive power to the representatives of the national elite; 3) introduction of the Russian language in clerical work of local administrative and judicial bodies; 4) assignment of ranks, grant of exclusive rights, awarding of Russian medals and orders; 5) creation of privileged national military forces (irregular parts, escort, police, security guards). Still, the ethno religious affiliation did not serve in the Russian Empire as the criterion for the promotion of subjects in the career. These areas of state activity prove that the Imperial government on the territory of the Trans-Caspian region, as well as throughout Central Asia, did not pursue a policy of forced russification, but only sought to perpetuate the Trans-Caspian part of the Empire, the spread of national regulations, taking into account the economic interests of not only newcomers, but also the local population. This approach gives every reason to believe that Trans-Caspian region, as an administrative unit, was a developed part of the Russian Empire. Despite consolidating the nature of Russia's relationship to the Turkmen ethnic group, the pursuit of civilization to unite the region with other parts of the Russian state, the Trans-Caspian region, being one of the last territorial acquisitions was not meant to integrate with the Empire. After the outbreak of the First world war the Trans-Caspian region, as well as other areas of settlement of the Turkmen, followed the Russian Empire in entering a period of conflicts, crises, rebellions and revolutions. However, the inclusion of the Turkmen tribes to the Russian Empire accelerated the consolidation of the Turkmen society and laid the foundations of modern Turkmen statehood, having strengthened during the Soviet era.
152-167 653
Abstract
Due to the annexation of the Crimea to Russia in 1783, the peninsula saw a problem of the peaceful integration of the population in the legal field of the Empire. Considering that the peninsula of the end of XVIII - first half of the XIX centuries can be characterized by the dominance of the communities of the so-called religions of "foreign confessions", the peace and prosperity on the peninsula largely depended on good legislative solutions in the field of government/religious relationship. Among the first acts of 1783, which laid the foundation of interethnic and interfaith peace, there was a Manifesto of Catherine II "On the Adoption of the Crimean Peninsula, Taman' Island and whole Kuban' to the Russian State" and the Decree for the name of the Novorossiysk General-Governor Prince Potemkin "On the Adoption of the Crimean Residents and other Tatar Peoples to the Russian Citizenship". In fact, all further acts were aimed at the implementation of these safeguards, improvement of state-confessional relations on the peninsula. An important document systematizing various acts concerning the activities of non-orthodox religious organizations in Russia became "Charters of Spiritual Affairs of Foreign Confessions" by Nicholas I. As a result, through religious and communal authorities, acting in contact and under the supervision of the Provincial governance structures, through the preservation of traditions and customs, a number of measures aimed at economic and cultural development of the peninsula, the authorities of the Empire were able to achieve in the Crimea not only peace and harmony, but the devotional service of the throne subjects. The proposed article is devoted to the study of government/religious relationship in Taurida Province.
BOOKSHELF
ISSN 1729-5920 (Print)
ISSN 2686-7869 (Online)
ISSN 2686-7869 (Online)





















