Preview

Lex Russica

Advanced search
No 5 (2018)

PHILOSOPHY OF LAW

7-18 740
Abstract
The formation and development of the Institute of Human Rights is the main political and legal project of the Postmodern Age. However, this project is rather one-sided; in general, the interaction between the man and society creates rights for both parties. The main purpose of the article is to scrutinize a specific social system that arises as the result of such interaction. Relying on the philosophical essence of human rights and the dialectic of individuality and collectivity, the author develops the theoretical construct of "mutual rights and duties of the man and society" as an element of legal reality. It is based on a system-forming attribute, i.e. mutual saving and development of the man and society, which determines self-adjustment of the structure in question. Methodologically, a research objective is achieved by means of systematization of the provisions existing in the philosophical-legal theory and court practice and reflecting different approaches to resolving the problems concerning the dominance of human rights or the rights of the society during different historical epochs, the tendency of giving absolute priority to the human rights under modern conditions, the possibility of "the golden mean" that allows to avoid the extremes and to consider the interests and rights of both the individual and society. Analysis of approaches of this kind revealed the absence of the system enshrining the rights of collective entities in the modern legislative practice: the rights of the society are either of political nature or reflect the civilizational specificities of a number of societies and States, or protect the interests of certain social groups, strata, and minorities. The current situation has largely been the result of neglect on behalf of the legal-philosophical and legal theory towards the understanding of rights in the system of "individual - society." Changes are even more necessary in connection with the emergence of law of the rights of Mother Earth that appeared in the modern legislative practice of a number of Latin American States. The research focused on such issues is carried out under the guidance of human rights of the third generation that are collective in their nature, and that can be implemented only in the course of joint activities aimed at saving and developing both the individual and society.

THEORY OF LAW / THEORIA LEX

19-32 5434
Abstract
The article discusses a range of issues related to the basic tendencies of Russian Post-Soviet State and law development. The article analyzes socio-economic, political and other factors influencing the process of formation of development trends of the modern Russian State and law from 1992 till present. The paper provides the classification of trends based on various criteria. In the article, the author relies on such criteria, i.e. a kind of "differentiating" criteria applied within the framework of a differentiated approach to the consideration of the Post-Soviet State and law, as the state and level of development of economy, political system, social structure, material, spiritual and other conditions of social life.

HISTORY OF STATE AND LAW

33-50 483
Abstract
The article is devoted to one of the most important problems of legal theory, i.e. the problem of "just law." All great revolutions were aimed at achieving social justice that was primarily associated with the equality of all before the law. To a large extent, that explains amazing coincidences of those algorithms according to which those revolutions were going through the same stages of formation. In the process of revolution, the idea of equality often substituted the idea of freedom. The clash of the old departing legal order with the new revolutionary norms of legislation created a specific situation, a state of emergency or anomie where the action of any law suspended. However, the statehood, despite the change in its form, continued to exist. The necessity of creating a new law required the formation of a new legal order; thus, adoption of constitutive, normative acts that enshrined the established order was the outcome of development of new law. The author draws attention to the historical experience of the English and French Revolutions correlating it with the experience of other revolutions.
51-63 1365
Abstract
The article argues that the progress of any science is determined by the status of its theory and methodology, and any scientific study begins with the development of methodology and methods. By virtue of a competent methodologically precise approach to the study of various civilizational-cultural, socio-economic, state-legal phenomena and processes, state and law regularities that are, to a certain extent, of universal nature are revealed and justified. Thus, the positive experience of relations between Russia and Turkmenistan as a socio-political reality can be employed to develop, harmonize and strengthen relations between other nations and peoples. The experience of developing methodology for the study of Russian-Turkmen relations leads the author to the conclusion that an impartial, objective, comprehensive study in the historical and legal science remains elusory. This fact makes it necessary to join the search for precise methodological approaches to be used, to remain faithful to the principles of historical-legal research, to prove the feasibility of applying a variety of research methods appropriate to the current state of development of the science and society. The article argues that "the weak point" of methodology of historical-legal research of organizational and legal basis of Russian-Turkmen relations amounts to uninvestigated gaps during certain time periods, inconsistency, and subjectivity of available scientific approaches. This fact also makes it necessary to unify the existing data, to restore the real nature and essence of Russian-Turkmen relations during the Imperial Period. The author concludes that any historical and legal research needs serious methodological support. Modern researchers may contribute by both using traditional methods and approaches that have repeatedly demonstrated their effectiveness and employing and omplementing new methods that, inter alia, have been adopted from other disciplines and methods of learning. Their application will significantly expand and enrich the modern borders of legal regulation, determine new research problems and substantially supplement available knowledge.
64-71 677
Abstract
The author of the article analyzes repressions on transport in the first half of the 1930s. The study of the issue in question is complicated by the lack of complete statistical data, as well as by inaccessibility of archival documents. However, based on the resources available, the author comes to the following conclusions. In the first half of the 1930s, mass repressions were initiated on transport. Repressions were distinguished for imposing punishments that mostly included deprivation of liberty or incarceration. Thus, almost all transport workers had criminal records. Therefore, in 1935-1936 the government sought to reduce the number of repressed transport workers and, at the same time, to toughen the measures of repression. The author agues that the repressive policy of the first half of the 1930s is the reminiscence of the principle of the pendulum, and the flywheel of repressions was either unwound or stopped by the bodies of transportation justice as the result of administrative fallacies of the government. In addition, the author notes that that policy was carried out under the auspices of slipshod justice. Attention has been drawn to systematic failures of local bodies of transportation justice to execute the central government orders until the end of 1934. Therefore, the author argues that the government of the State had been satisfied with the work of bodies of transportation justice only by the middle of 1935, i.e. it took almost 5 years to found and develop the system of bodies of transportation justice. The author comes to the conclusion that a large number of Soviet Law violations on transport were committed during repressions of the first half of the 1930s, and a "false bottom" was created in Soviet Law. In author's opinion, repressions of the first half of the 1930s became a kind of "training" for the bodies of transportation justice in order to prepare repressions of the second half of the 1930s.

NOVUS LEX

72-84 468
Abstract
The article describes the development of self-regulation in environmental management in Russia as a factor of sustainable development of its territories. The urgency is due to the lack of efficiency of the Russian natural resources legislation, the need to find new ways of its improvement, the increased attention of the State towards the institution of self-regulation of business activities as an alternative to government regulation in various fields, including the sphere of nature. The author examines peculiarities and possibilities of the environmental management for the development of self-regulation, assesses the current legislation in the sphere of self-regulation and environmental management, shows the current status of self-regulation in the sphere of nature. The conclusions about possible and prospective forms and directions of self-regulation development in the environmental management in the Russian Federation are made. The article considers alternative forms of self-regulation in environmental management, including specific natural resources existing in the world and in the Russian system of voluntary environmental certification, and shows their efficiency to ensure sustainable natural resource use and prospects for their further development. It is justified that taking into account the specifics of natural resource relationships, self-regulation in environmental management may develop in different forms and models, not only in the form of creation and actions of self-regulatory organizations in accordance with the Federal law "On Self-Regulating Organizations".

ENFORCEMENT MATTER

85-96 646
Abstract
The article through the prism of history, theory and enforcement practice of the formation, development and functioning of the concept of attesting witnesses in the Russian administrative jurisdictional process seeks to define the place and role of witnesses in the general system of the subjects (participants) of the administrative proceedings of a jurisdictional type from the point of view of their functional purpose, as well as potential and real possibilities of witnesses as participants in a particular industry to influence task solving of administrative jurisdictional process. Following the example of the institute of witnesses, the author states that the development and improvement of administrative jurisdictional process, unfortunately, still often follows the footsteps of its "older brother" - the criminal process. The author expresses a number of proposals for improving both the regulatory model of the institute of witnesses in administrative and jurisdictional process, and enforcement practice with the presence of witnesses. The author substantiates the thesis that any specified improvement is only a palliative and that the institution of witnesses without any prejudice to addressing any administrative and jurisdictional production tasks should be eliminated as having lost its procedural role and functional purpose.

FOREIGN LAW

97-108 2474
Abstract
Treu und Glauben (good faith) in German law is today a fundamental principle in virtually all legal relations between equal subjects of law in private law, or between persons who are in relations of power and authority in the field of public law among themselves. Today, Treu und Glauben serves as a general legal principle in different fields of law - obligations, property, labour, family etc., procedural and public law. Recently, good faith as a principle of civil law has been introduced into the Russian Civil Code. The principle of good faith in Russian law is yet to be understood, realized and used effectively. For a better understanding of good faith one needs to know and understand how this legal phenomenon developed in the historical context in German law. In Germany, the attitude to good faith has been mixed throughout the existence of §242 of the German Civil Code. However, the fact that Treu und Glauben has an invaluable importance not only for civil law but for the whole legal system of Germany has not been disputed in the German law. This article, based on the study of the German legal literature, considers the history of legal approaches to good faith which resulted in the German Civil Code §242 "Treu und Glauben". The historical periods of Roman law and the legal category of bona fides, the Middle ages and the emergence and meaning of the German term Treu und Glauben are considered. An important milestone was the XIX century, when there appeared the first codifications that contained rules preceding §242. The author describes the process of preparation of the German Civil Code draft and the rules of Treu und Glauben, alongside with the legislative adoption of the Code and the debate concerning §242.

DISCUSSION PANEL / PRO ET CONTRA

109-116 471
Abstract
The article examines the development of the Russian notaries, given the events of 1917 resulting in the liquidation of the Russian notary system as notary of the Latin type, followed by its "rebirth" as public notaries. However, this did not interrupt the tradition of domestic human rights institute. In 1993 the adoption of the Fundamental Principles of Russian Legislation on Notaries cemented the dualism of the profession in the Russian Federation and provided the ongoing development of the Notorial system with the traditions and experiences both the pre-revolutionary period of Latin notaries, and the Soviet period of state notaries. The article examines the modern role of the Russian notaries in the legal system of the Russian Federation. Attention is given to the due process that are created for the participants of the substantive and procedural legal relations. The author explores the doctrinal provisions in this sphere and the practical experience of implementing innovations in notarial activities. The recent innovations in this field are analyzed separately, some negative aspects are mentioned.

LEGAL EDUCATION

117-130 596
Abstract
The expulsion of the student from a university at the initiative of the educational organization is responsibility in its nature. The article gives legal characteristics of the five grounds for early termination of student-university relationship. Violation of the local acts of the university on organization and implementation of educational activities is not a disciplinary action as the educational relationship between students and the educational organization are not labor ones. Application of expulsion for student's failure to fulfill their responsibilities to complete the educational program and the curriculum should be differentiated depending on the type of violation (unfulfilled program requirements or other violation). It is necessary to introduce the application of expulsion on this basis into the law, which will depend on the cause and extent of failure to fulfill curriculum requirements. The introduction of mandatory expulsion of a student for violation of the order of admission to the university, resulting in the student's illegal enrollment is justified. As in the case of late payment for educational services, the university is entitled (but not obliged) to expel the student, it is impossible to qualify the inaction of the university as creating artificial debt (abuse of right). The author proposes to consolidate all the events of termination of student-university relationship in the form of expulsion of the student in Chapter 6 "The Grounds for the Emergence, Change and Termination of Student-University Relationship" of the Law on Education of the Russian Federation. As grounds for the early termination of the educational relationship at the initiative of the organization performing educational activities can be named the following: 1) non-performance or violation of local acts on the organization and implementation of educational activities by students aged 15 years and older; 2) the failure to fulfill the educational program and (or) the curriculum without a valid reason; 3) late payment for the educational services. It is proved that the student-university relationship should be terminated early at the initiative of organizations engaged in educational activities, in the case of: 1) violation of the procedure of admission in the educational organization, resulting in the student's illegal enrollment in the educational organization; 2) failure to make up academic deficiencies within the established deadlines.


Creative Commons License
This work is licensed under a Creative Commons Attribution 4.0 License.


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