No 7 (2018)
HISTORY OF STATE AND LAW
7-23 464
Abstract
The article is devoted to one of the most important problems of legal theory, namely, the problem of "just law." All great revolutions pursued the objective of achieving social justice that was primarily associated with the equality of all before the law. To a large extent, this explains surprising overlapping of algorithms in compliance with which the revolutions developed having passed through the same stages of formation. During the revolution, the idea of equality is often replaced by the idea of freedom. The clash of the old departing legal order with the new revolutionary legislative norms created a specific situation, a state of emergency, i.e. an anomie, when the operation of any law was suspended. However, the statehood itself, despite the change in its form, continued to exist. The need to create a new law required the development of a new legal order; as the result of the development of law, constitutive and regulatory acts that envisaged the newly established order were adopted. The author focuses on the historical experience of the English and French revolutions comparing it with the experience of other revolutions.
THEORETICAL PROBLEMS OF BRANCHES OF LAW
24-38 6597
Abstract
The article considers the development of ideas with respect of government authorities that for many years have been equated with executive and administrative bodies of different levels. At the same time, no other state structures, regardless of the nature of their work and their real contribution into the ensuring of the activities of the State, were recognized as government authorities. The issue concerning the need for a broader understanding of public administration was put on the agenda in the second half of the last century with the development of cybernetics. As shown by the author, for large systems, to which the government system also belongs, it is typical to have information channels that have a different, very complicated structure. Incomplete consideration of information by the participants of state administration that is supposed to come to them through feedback channels results in making inappropriate administrative decisions and inefficiency of the managerial process. This necessitates the implementation of public administration through the use of many autonomous information circuits inherent in different branches of government and other state bodies. The Constitution of the Russian Federation, having established the separation of state power into three independent branches, renounced the term "government authorities," and the state administration itself is now understood in a broader sense-as the activity of all state authorities and other state bodies. That said, the executive power system is a powerful subsystem of the entire system of public administration. The author considers the peculiarities of this subsystem that distinguish it among other subsystems of the public administration system. In particular, it is shown that the executive power subsystem structurally models the system of state power, possesses considerable inertia and performs the bulk of the management functions of the entire public administration system. Under unstable, supernumerary, crisis conditions of the latter, its stability can only be ensured by a system of executive power. The provisions set forth in the article are illustrated by the practice of state administration in the USSR and post-Soviet Russia.
39-53 435
Abstract
The effectiveness of the criminal policy implementation largely depends on the interrelation between legislation, legal theory and practice. On the example of complicity as one of the institutes of criminal law, the article investigates the mechanism of their mutual influence during several historical epochs: since the moment of a radical change in the development of criminal law related to the 1917 Revolution till the present day. The author analyzes changes in the legislation that had taken place during the specified period. It is noted that after it was rejected to provide for an non-exhaustive list of complicity actions in the Criminal Code of 1922 that had been laid down in the 1919 Guiding Principles on the Criminal Law of the RSFSR, all sources of criminal law demonstrate a constant increase in the list of criminalized means of complicity. In the author's opinion, the reason for this is the objective need of jurisprudence, since the variety of public relations (and, accordingly, socially dangerous acts aimed at the destruction of social relations) cannot fit into the legal framework. Such conclusions are confirmed by decisions on specific cases considered by courts of various levels since 1920s and up to the present time. In addition, the main doctrinal standings concerning the issues under consideration are given. Conclusions are drawn with res the possibility of applying individual methods of legislative regulation used by Soviet criminal law to resolve contemporary issues. In particular, using specific socially dangerous acts as examples (assistance in terrorist activities, mediation in bribery, complicity in the illicit sale of narcotic drugs) and taking into account the needs of modern jurisprudence, it is proposed to return to a non-exhaustive list of methods of complicity in the General Part of the Criminal Code.
NOVUS LEX
54-71 918
Abstract
The article proves the necessity of consolidating in the Federal Law "On Additional Measures of State Support for Families with Children" the grounds, order and legal consequences of the return of maternity (capital) funds to the budget of the Pension Fund of the Russian Federation after the authorized person has exercised the right to dispose of them. The need for such regulation arises when the contract aimed at improving living conditions is declared null and void, terminated and in other cases when the warranted person has the opportunity to use maternal (capital) funds for purposes other than prescribed by the law. In the absence of appropriate norms in the legislation on social security, the return of maternal (family) capital in such situations is ensured by the application of civil law norms with due regard to the peculiarities of maternal (family) capital as a form of social security. At the same time, the potential capacity of civil law rules applied to regulate such relations is limited. The return of maternity capital to the budget of the RF Pension Fund inevitably raises the issue concerning the possibility of re-disposing the funds. Based on the analysis of judicial decisions in cases of "restoring" the right to additional measures of state support, the author comes to a conclusion that the legislative regulation of terms and order for re-implementation of the right in question is needed. "Restoration" of the right to maternity (family) capital should be permitted only after the funds have been returned to the budget. The legal consequences of such a return should be differentiated by the law-maker depending on whether the authorized person acted in good faith disposing of the maternity (family) capital funds. Unfair use of the right to additional measures of state support should be taken into account when the law-maker determines the possibility of re-implementation or application of additional conditions for this.
ENFORCEMENT MATTER
72-81 558
Abstract
The article is devoted to the study of problems of application of the norm of the criminal law that provides for responsibility for evading administrative supervision. The analysis of the legislative design of Article 314.1 of the Criminal Code of the Russian Federation has revealed shortcomings associated with different interpretation of the term "contingency" in relation to the Article in question. The author has analyzed the explanations of the Plenum of the Supreme Court of the Russian Federation with respect of the application of the rule on imposition of responsibility for evading administrative supervision. The article shows the problems encountered in the course of implementation of administrative supervision and identification of elements of a crime under Art. 314.1 of the Criminal Code in the actions of supervised persons. In particular, the issues related to the need for the supervised person to live at the place of residence or place of stay are raised, and attention is focused on the employment opportunities of a supervised person in another locality. On the example of the Irkutsk region, the employment data with respect of supervised persons are analyzed. The content of such an evaluation element as a legitimate excuse is elucidated. The criteria for "unwarranted" leaving of the place of residence or place of stay are determined. Special attention is paid to the subjective side that includes the purpose of evasion as a compulsory element. The article examines the peculiarities of judicial practice of application of the norm concerning responsibility applied for evading administrative supervision. Recommendations have been developed to improve legislation in this field, the author's wording of the Article in question has been proposed. Explanations are offered concerning the interpretation of such terms as recurrence, repetitiveness, malignancy, contingency. Also, the issues regarding differentiating administrative supervision as a measure of post-penitentiary rehabilitation from such punishment as restriction of freedom are considered. The author gives arguments in favor of the equal existence of the two mentioned institutions. The stance concerning double imputability when the person who has served a sentence is subjected to administrative supervision is refuted. Attention is drawn to the moment since which a supervised person is considered to have committed an administrative offense. The article examines the peculiarities of qualifying evasion from administrative supervision as a crime of prejudicial character and gives recommendations concerning the application of the rule under consideration including the rule formulated by the author.
82-91 1189
Abstract
The article deals with the genesis, evolution and the state of affairs in the field of the criminal law regulation with respect to responsibility for an illegal armed group (Article 208 of the Criminal Code of the Russian Federation). Due to the increase in the number of illegal armed groups in Chechnya and escalation of their opposition to the federal government in 1995, the Criminal Code of the RSFSR of 1960 was supplemented by Article 77.2 that provided for the responsibility for the creation and participation in an illegal armed group the operation of which was not warranted under the federal law. The author substantiates the assertion that an illegal armed group represents a kind of organized group, considers different approaches, gives arguments that confirm that an illegal armed group can not be classified as a certain type of a criminal community. The analysis of amendments to the criminal legislation after the the Federal Law of November 2, 2013, No. 302-FZ "On Amendments to Certain Legislative Acts of the Russian Federation" was adopted, jurisprudence with respect to the specific cases associated with the application of Art. 208 of the Criminal Code of the Russian Federation, as well as interpretations of the Plenum of the Supreme Court of the Russian Federation set forth in Decree No. 1 of February 09, 2012 "On Some Issues of Judicial Practice in Criminal Cases Concerning Crimes of a Terrorist Nature" lead to conclusions about the questionability of not only the correctness of application, but also of the validity of existence of Art. 208 of the Criminal Code. The auther elucidates the need to decriminalize the crime in question, as well as the acts provided for in Art. 209, 210, 205.4, 205.5 of the Criminal Code of the Russian Federation, etc ., to introduce an additional Article into Chapter 10 of the Criminal Code of the RF providing for a rule concerning mandatory reinforcement of the punishment for the commission of a crime in a group similar to that stated in Art. 68 of the Criminal Code.
92-97 793
Abstract
The author explores the legal aspects of the preservation of the bank secrecy regime in the provision of outsourcing services for data security. The article concludes that the information pertaining to banking secrecy, may be transferred to a third party, including the party that provides outsourcing services for information security, provided that the credit institution maintains control over the relevant provider's infrastructure and the provider of outsourcing services lacks possibility of access the relevant information. The author analyzes the norms of the Russian laws on banking and commercial secrecy, i.e. on banks and banking activities, on the national payment system, on commercial secrets, etc., and also provisions of the Standard of the Bank of Russia STO BR IBBS-1.4-2018, and focuses on managing risks to data security when outsourcing. During the research it is established that the Standard STO BR IBBS-1.4-2018 de facto allows you to outsource data relating to bank secrecy to service providers (i.e. third parties), which contradicts the current legislation. To address inconsistencies in Russian laws it is necessary to make appropriate changes.
98-113 696
Abstract
The article discusses the key points and highlights the main trends in criminal procedural regulation of preliminary checks of crime reports as the most meaningful and long-lasting stage of initiation of a criminal case. Such trends are the extension of the time frames and range of methods of the inspection as well as the scope of application of the principle of the protection of the rights and freedoms of man and citizen in criminal proceedings at the stage of initiation of criminal proceedings (Article 11 of the Criminal Procedural Code of the Russian Federation). The author traces the chronology and the dynamics of the development of legislative regulation of methods and timing of pre-screening, and legal status of its participants in the current Criminal Procedural Code of the Russian Federation . On this basis, the paper formulates proposals for improving the normative regulation of social relations in this region, primarily through the introduction of amendments and additions to article 144 of the Criminal Procedural Code of the Russian Federation. The author considers acceptable any procedure in the stage of criminal case initiation, including investigative activities, if enshrined in the Criminal Procedural Code of the Russian Federation: 1) proper legislative regulation of the order of appropriate steps; 2) reasonable time of their production; 3) prohibition of the use of procedural coercion against citizens as well as leaders and representatives of non-state actors, involved in pre-testing; 4) reliable procedural guarantees of ensuring the rights and legitimate interests of participants of the inspection.
LAW AND ECONOMICS
114-124 482
Abstract
The article discusses legal problems of improving state policy and strategic planning for nature management in the Arctic. The results of the study of the valid documents of state strategic planning prove that the Arctic requires the acts (strategies) of spatial development, which must take into account both economic aspects of the development through the creation of "ecosystem-based management of human activities", and environmental aspects, providing legal preservation of Arctic ecosystems during the implementation of the environmental management. The latter also take into account all of the Arctic threats and challenges in the implementation of the main directions of the development of the Arctic region.
DISCUSSION PANEL / PRO ET CONTRA
125-134 2035
Abstract
The article is devoted to court practice within the general concept of the enforcement legal sense. It is proved that jurisprudence is not a source of modern Russian law, regardless of legislative consolidation of the status and irrespective of the terminological expression of the results. The author analyzes the relationship between institutional (the part of the judicial system) and substantive (the importance of judicial law-making acts) of the parties to justice. It is noted that on the doctrinal level there is an open question on judicial precedent, represented in the Russian version as the definition (change) of practice of application of legal norms. The article discusses legislative methods of its solution in the form of institute of revision of entered into legal force judicial acts on new circumstances. Special attention is given to the classification of the forms of expression of law in the judicial activities that fall into unconditional, presented by the Plenum and the Presidium of the Supreme Court of the Russian Federation, and conditional, acquiring law-making features during subsequent positive perception of the practice of the higher courts, which ultimately can be assigned to any judicial decisions from the standpoint of existing law-making capacity. Three main models of interaction between litigation and legislation are considered: "the court - aide to legislator", "the court - negative legislator" and "the court - positive legislator".
НАУЧНАЯ ЭКСПЕРТИЗА
135-157 602
Abstract
The article considers the questions of the constitutionality of note 2 to article 264 of the Criminal Code of the Russian Federation, which, at the initiative of the Presidium of the Ivanovo regional court, became the subject of review by the Constitutional Court of the Russian Federation. The court came to the conclusion that the legal definition of intoxication is inconsistent with the Constitution of the Russian Federation, violates a number of principles of the criminal law. The authors show the legal positions of these courts, given scientific findings, prepared by them at the request of appropriate officials. Having studied this particular case, the authors make an attempt to show the state of the Russian criminal legislation, characterized by the violation of its consistency (both internal and external), including the inconsistent penal policy in the field of combating crime in general and traffic crime in particular, poor legislative technique. In connection with the recognition of the definition of intoxication articulated in note 2 to article 264 of the Criminal Code of the Russian Federation unconstitutional, the authors propose a legislative solution, aimed at the establishment and account of this fact both in the Criminal Code of the Russian Federation and law enforcement practice.
ISSN 1729-5920 (Print)
ISSN 2686-7869 (Online)
ISSN 2686-7869 (Online)