No 10 (2018)
THEORY OF LAW / THEORIA LEX
9-17 562
Abstract
The author gives the answers to the question concerning the principles of law and how they can operate within the framework of the legal system. This issue covers an important aspect of the problem of defining the concept of "principles of law," since it is their operation that determines the influence that the principles of law have on public relations and, therefore, necessitates a detailed study of the principles of law and their role in the rule of law state. The author analyzes both the direct influence of the principles on the legal system and their indirect influence. The interrelation between the principles of law and positive norms constitutes one of the key problems raised in this paper.
18-29 541
Abstract
The article deals with the theory and practice of Russian legislation as an institution of social interaction. The author highlights that Russian law and legislation lack social identity with regard to the strategy of economic growth, structural balance and consistency. The author examines a conceptual legislative role of the Message of the President of Russia to the Federal Assembly of the Russian Federation of March 1, 2018. Also, the paper considers the issues of correlation between the legislation and legal tradition, an ideological role of law in the national and world legal order. The idea of integrity of domestic legal tradition is grounded, its historical and legal foundations are substantiated. The article poses the problem of developing a social doctrine of Russian law as an intellectual basis of integrative legal complexes in Eurasian and other areas of economic and political interstate unions.
NOVUS LEX
30-39 1618
Abstract
The article examines the issues of legal regulation of the remote work in the context of the transformation of employment relations' nature in the modern world, and the phenomena of the atypical work arrangements. The article deals with the European Union legal framework concerning the remote work. In particular, the 2002 European Framework Agreement on Telework is discussed from point of view of possible borrowing of legal norms into the Russian law. The more recent European Foundation for the Improvement of Living and Working Conditions (Eurofound) study on the new forms of work dealing with the so-called ICT-based mobile work is also discussed. Further, the author makes a critical evaluation of current Russian legal norms covering the remote work. The defects of Chapter 49.1 of the Labour Code of the Russian Federation are discussed from point of view of improvement of the Russian law on the matter. In particular, the author proposes to deal with the following problematic issues of remote work regulation in Russia: the impossibility to conclude the employment contract for partially remote work; the necessity to protect the remote employees' private life outside of their working time by establishing the right to be offline and unavailable to employer's calls; unreasonably hard requirement concerning the 'enhanced qualified electronic signature' which is due in the process of conclusion of employment contract and mutual notifications by its parties; lack of norms providing for the collective labour rights of the remote workers; the possibility to dismiss remote worker on the grounds established in the employment contract, which seriously deteriorates the position of such workers compared to other employees without any objective reason; lack of legal regulation of the transnational remote employment, etc.
40-49 437
Abstract
The article deals with the issues related to legal certainty that, in author's view, is one of the essential preconditions for the constitutionality of legislation and the natural human right. Attention is drawn to the fact that uncertainty is not always a flaw in the law, and in some cases it serves as a peculiar method of legal regulation, since it provides the law enforcer with discretion to resort to it in a particular instance of flexibility of legal regulation in order to achieve the best result. However, in the vast majority of cases, lack of certainty is perceived as a flaw in the law, since it results in inconsistent and arbitrary law enforcement practices that lead to the violation of the rights, freedoms and legitimate interests of citizens. The article substantiates this conclusion. The author reveals the content of legal certainty in terms of legal technique trough the prism of the legal determinations of the Constitutional Court of the Russian Federation. It is concluded that ambiguity and inconsistency of legal constructions is caused by the increase in the number of scientific terms, terms of art in the regulatory acts, and a constant increase in the total number of acts of "correctional" nature. It is proposed to vest the right of legislative initiative not with individual deputies, but with a group of deputies consisting of at least 25 representatives. Along with this, the right of legislative initiative should be given to such legally competent bodies as the Commissioner for Human Rights in the Russian Federation, and the Prosecutor General. The author addresses the issue that, despite excessive legislative regulation, a number of important public relations remain unsettled, which leads to the violation of citizen's rights and freedoms, impossibility of implementing Constitutional norms. The paper analyzes jurisprudence of the Constitutional Court of the Russian Federation that helps overcome legal uncertainty and eliminate the flaws in the legislation. However, in author's view, this does not contribute to the authority of the legislator and the law.
50-57 897
Abstract
The article considers the issues of using the results of creative activity as part of complex objects of intellectual rights in the field of show business, theater, design, etc. The author highlights the need for legal regulation of specific objects of creative work that have become a constituent part of a complex object. It is noted that, taking into account the development of digital technologies and foreign experience, it is necessary to analyze the domestic practice of legal protection of objects of creative activity that have become constituent parts of complex objects (objects of copyright and patent rights) in order to improve legal protection of authors, and to provide them with the possibility of successful commercialization of their intellectual activity results. The author concludes that, under the conditions of intense competition between manufacturers (both Russian and foreign), protection of domestic authors capable of creating original and creative models against copying and illicit borrowing should become a priority in order to support and develop the consumer goods industry. The article considers the possibility of introducing ancillary protection for industrial designs and highlights that the proposed legal protection mechanisms must comply with the international obligations of the Russian Federation and meet international standards applied for the protection of such products. In conclusion, it is noted that attention should be drawn to the legal protection of the results of creative work (in particular, the results of creative work as part of complex objects of intellectual rights), as it is relevant for the development of the domestic consumer goods industry and commercialization of the results of authors' creative activity.
THEORETICAL PROBLEMS OF BRANCHES OF LAW
58-69 668
Abstract
The author has carried out a comprehensive analysis of opinions of legal scholars, regulatory and judicial practice regarding provision of services to individuals aimed at changing or improving their appearance. The article reveals a number of problems associated with the protection of patients' rights, training of specialists and licensing organizations involved in providing services in the field of medical cosmetology. The conclusion is made with regard to the need for a detailed normative and legal regulation of the terms of contracts for the provision of cosmetology services that should contain specific, planned services and contraindications to them, as well as provisions concerning the specific results of the services provided. Based on the analysis of legislation, the author differentiates the concepts of cosmetic services and cosmetology services in the context of their classification as medical services. Particular attention is paid to the criteria applied to determine the amount of compensation for mental anguish and emotional distress caused by poor quality of cosmetology services. Along with criteria available in the science and legislation, an additional criterion is proposed-the period required to restore the former appearance of an individual. In the legislation of the Russian Federation there are no age restrictions for those who resort to cosmetology services for minors, including plastic surgery. In this regard, it was stated that age limits must be established for certain types of services related to the change and (or) improvement of the appearance of an individual. In order to solve the problem of criminological nature, it is proposed to enshrine in law the requirement for plastic surgeons to maintain patient photo archives.
70-84 1133
Abstract
The article raises the problem of the possibility and forms of using information obtained in the course of intelligence and surveillance operations for proving in criminal cases. Based on the results of his previous research in the field of evidence law, analyzing the norms of current legislation, doctrinal determinations on this issue, modern judicial and investigative practices, the author comes to the conclusion that contemporary scientific approaches and applied technologies of forming evidence based on the results of intelligence and surveillance operations are pseudo-procedural, artificial, and, in fact, are no more than a cover for information obtained as the result of intelligence and surveillance operations and constitute the most convenient type of evidence without any understanding of their gnoseological nature and essence. The author invites his colleagues to recognize that the only possible solution to the problem of using the results of intelligence and surveillance operations for providing evidence in criminal cases is to legalize the mechanisms of their direct and straightforward introduction into the criminal proceedings without the need for any imaginary, illusory procedural formalization. Taking into account possible negative consequences of the proposals being made, being aware of the likely risks and the potential danger of lack of control and permissiveness of law enforcement officers, the author simultaneously formulates the criteria for admissibility of using information collected during intelligence and surveillance operations for providing evidence in criminal cases. In his opinion, they include: a) non-reproducibility of the results obtained by investigative or judicial means; b) the possibility of checking and assessing the relevance, admissibility and reliability of the results obtained by criminal procedural means; c) the existence of a strictly formalized mode of carrying out intelligence and surveillance operations that in terms of the level of guarantees is not inferior to the regime established by criminal procedure law.
85-97 1035
Abstract
The domestic Law on physical culture and sports does not clearly distinguish between the subjects of "state regulation” and "self-regulation". Regulatory documents of sports organizations do not limit their powers in terms of regulation of a sport. Thus, the provisions of the legislation and regulatory documents of sports organizations are not specific, which leads to uncertainty of regulation of sports. This, in turn, results in the absence of the limits of norm-setting of sports organizations. In such a situation, the rights of athletes are violated. The author of the article formulates the principle of regulatory certainty in the field of sports, which means the existence of such provisions of national legislation, international legal acts, as well as regulatory documents of sports organizations. Simply scanning these documents makes it possible for any subject to understand specific rights and obligations each of the subjects of sports has, and the order of their implementation. These cover responsibility for the action and/or inaction to be imposed on each of the subjects of sports, the limits of norm setting for sports organizations, and the powers of the state in the field of normative regulation of a particular sport. The author believes that the concept of autonomy of sports organizations can exist only if it does not lead to a violation of the rights and legitimate interests of athletes. According to the author, the limits of autonomy of sports organizations should be formulated. The autonomy should be understood as clearly formulated provisions of the national legislation on sports, international regulatory legal acts or regulatory documents of sports organizations. These: a) expand, paragraph by paragraph, delineate the subjects of "state regulation" and "selfregulation"; b) establish prohibitions for sports organizations to commit actions (inaction) and/or decisions that lead to abuse of their rights, and c) provide mechanisms for monitoring sports organizations in terms of their compliance with the provisions of national legislation on sports, international regulatory legal acts.
ENFORCEMENT MATTER
98-105 1509
Abstract
The article is devoted to the characteristic of a new type of civil liability - pre-contractual liability. The classical division of liability according to the method of its occurrence into contractual and non-contractual has changed. This is due to the fact that the Civil Code of the Russian Federation was supplemented with new provisions governing the negotiation of a contract, as well as with liability issues in connection with unfair negotiation, which led to the occurrence of losses for one of the parties. Within the framework of the stated topic, a study of positions on the institution of pre-contractual liability, developed in the doctrine of civil law was conducted. The modern civil jurisprudence provides two main standpoints that formulate pre-contractual liability depending on the nature of contractual or non-contractual obligations. A separate theory is the so-called dualistic view of the nature of pre-contractual liability, assuming the contractual and tort nature of liability. In order to have a comprehensive understanding of the phenomenon under the study, the author provides the court practice on controversial issues arising in the application of the rules by the courts in the field of pre-contractual liability of participants who entered into a contract, but never concluded it. The analysis of judicial practice showed that the courts in cases arising from disputes related to the negotiations on the conclusion of the contract, proceed from the fact that the subjects of pre-contractual legal relations must adhere to the mandatory conditions of negotiations on the conclusion of the contract-compliance with the principle of good faith. Non-compliance with this principle having led to losses in the property sphere of one of the parties, implies the subsequent responsibility of the other party. The author concludes that pre-contractual liability is a separate and special type of civil liability, which is fixed by bringing the author's wording of pre-contractual liability, based on its special legal nature and specific properties of the subjects of pre-contractual legal relations.
COMPARATIVE LEGAL STUDIES
106-115 302
Abstract
The article is devoted to the study of the problem of law enforcement at mass sports events through the introduction of systems of identification of sports fans. The article shows the results of the case study of 9 foreign countries: Argentina, Bulgaria, Brazil, Chile, France, Italy, Poland, Slovakia, Spain - in some main areas. The article investigates the provisions of foreign legislation concerning the collection of data on spectators by the organizers of sports competitions, maintenance of information registers, storage of information about the visitors of sports events.
FOREIGN LAW
116-129 1619
Abstract
The article discusses the foreign experience of cryptocurrency regulation since the beginning of their widespread use on the example of the United Kingdom, the United States, Canada, Australia, Ukraine, Japan, China and Latin America countries. Most of the countries, such as Venezuela, the United States, Canada, Australia, some EU countries, as well as such financial and technological giants as China and Japan are positive-expectant concerning the status of cryptocurrencies. The neutral position of a number of countries (the European Union led by Germany, Latin American countries) is due to the lack of developed legislation regulating cryptocurrency relations. In Ecuador, Thailand, Vietnam, Iceland and Bangladesh cryptocurrencies are prohibited. Venezuela became the first country in the world to create its national cryptocurrency-Petro. Its value is sunstantiated by reserves of natural resources of the country, and the price equals to a barrel of oil. By Petro, the Venezuelan government expects to overcome the economic crisis caused by the USA sanctions and to attract billions of dollars in investments. Venezuela's national cryptocurrency is built on a blockchain platform. It can be used for payments in the country and exchanged for other cryptocurrencies. In Russia, international experience in the field of regulation of cryptocurrency relationships and determining its status resulted in early adoption of the law on the cryptocurrency and the possible emergence of a national cryptocurrency - cryptolabs.
130-145 534
Abstract
In case of compulsory mediation, the court has to assess the actions of the parties before and (or) during the mediation session. The U.S. experience demonstrates the difficulty in setting any common criteria. The USA judicial system has not yet managed to resolve the issue. The requirement of good faith participation in mediation is enshrined in the U.S. legislation and local court rules. The requirement is intended to encourage the parties to exclude abuses during the procedure provided they participate unwillingly. However, since there is no legal definition of good faith, it has not been determined at the level of case law. The doctrine contains different points of view. Jurisprudence sets forth the following prerequisites of good faith participation: the presence of written explanations on the merits of the dispute submitted by the parties to the mediator in advance, the appearance at the mediation session and the participation of a representative who has sufficient authority to discuss and conclude an agreement. The judges assess the participation in several mediation sessions and continuance of the session independently. There are cases when the American judges qualified unilateral refusal of the party to participate in mediation as a basis for imposing sanctions. According to most legal scholars, the requirement of good faith participation inhibits the mediation procedure, as the relationship between the parties to the mediation is distorted. The adversarial principle is strengthened, which contradicts the nature of mediation. There is an implicit coercion of the parties to conclude an agreement. It gives an opportunity for additional judicial proceedings concerning responsibility for improper behavior during mediation. Thus, the conflict with the principle of confidentiality of the procedure is inevitable.
COMBATING CRIME
146-156 974
Abstract
The article deals with the topical problems of women's crime and law. The features of female criminals associated with the historically determined place of female crime in the system of social relations, social roles and functions, biological and psychological specifics are reflected. Dynamics and tendencies of development of female crime, in particular at the end of the last century are revealed. The authors list the types of crimes committed by women, which include violent acts (murder and murder of a newborn child in particular, causing harm to health of varying severity, infection with venereal disease); theft in the form of theft of someone else's property, simple robberies, fraud, embezzlement; acts in the field of illegal trafficking in narcotic drugs, psychotropic substances and their analogues; robbery and extortion as part of complicity. A new crime that women commit has been identified, that is a contract murder. A comparative analysis of female and male crimes is conducted. Experts' standpoints in the field under consideration, as well as the author's own position are given. Theoretical standings and own researches are confirmed by examples from investigative and court practice. The author analyses the regulatory legal acts dealing with the fight against specified social problem. The influence of alcohol and drug addiction on legal relations with the state is highlighted. It is established that women in a state of alcoholic and narcotic intoxication are much more likely to commit crimes than in a sober state. Proposals to improve the activities of law enforcement agencies and the public in combating women's crime by improving the norms of penal legislation are substantiated.
HISTORY OF STATE AND LAW
157-165 1656
Abstract
The article deals with the formation and development of domestic criminal law policy in the field of human life and health. The study is based on comparative legal and formal legal methods, which made it possible to trace the formation of the mechanism of criminal legal protection of life and health on the basis of the formula of legal regulation of crimes against life and health. Following the retrospective approach, conclusions about the purposes of punishment imposed for crimes against life and health are formulated. The conclusion about the features of the criminal law policy of the state in the period of its formation is made. Taking into account the changes taking place in the socio-economic and political legal spheres, the evolution of criminal legal policy is traced, the analysis of the factors determining the mechanism of criminal legal protection of life and health is provided. The article reflects the process of consistent legal registration of component elements of a crime against life and health in the development of the Russian State. Methodological principles of protection of inviolability of life and health of the person in Russia are defined. The problems of implementation of criminal law policy in the sphere of life and health protection, due to the adequacy of criminal penalties are reflected. The authors provide their opinion on the principles of implementation of criminal punishment associated with the need to take into account a set of factors: public danger of the committed crime and the personality of the criminal, the circumstances influencing a measure of the state coercion, an order and conditions of the maintenance condemned. The effectiveness of the criminal law policy in the sphere of ensuring the human right to life and health requires the improvement of the legislative formula, which implies the consistency of criteria for the assessment and qualification of criminal law norms, the differentiation of punishment based on the degree of damage caused to a person, society and the state by these types of crimes.
166-172 478
Abstract
The article is devoted to the study of the role of prohibiting norms of criminal law in legal regulation in the first years after the establishment of the Soviet authorities in Russia. Based on the analysis of normative legal acts regulating criminal legal relations and the legal doctrine of this period, the authors prove that despite the revolutionary nature of the Soviet criminal law, the element of continuity takes a large place in it. This is expressed both in the formal-dogmatic method of constructing prohibitive norms and in law enforcement practice, where it was allowed to use the laws of overthrown governments in case of their compliance with the revolutionary legal consciousness. The article emphasizes the fact that the combination of legal traditions and innovations is a traditional phenomenon in Russia. The Bolsheviks were not able to construct an entirely new law. At its core, Soviet criminal law is based on the traditional for the Russian civilization prohibitive type of legal regulation. The prohibitive nature of the Soviet criminal law of the period of "war communism" corresponded both to the archetype of the patriarchal-paternalistic state, formed in the Kievan Rus, and the Bolshevik idea of the need to destroy the "bourgeois" law and form a socialist one, the use of which in the transition to communism period could be provided by the coercive force of the state.
DISCUSSION PANEL / PRO ET CONTRA
173-181 338
Abstract
Evaluation of the activities of the employee, the team, the whole complex system, which includes any federal authority, is a difficult problem. In recent years, it has become increasingly clear that the existing systems of indicators do not reflect an objective picture in the system under analysis. The effectiveness of the functioning of the authorities often raises many questions among citizens, and the legality of the activities of individual officials, including managers, is in doubt. All this does not contribute to improving their image and confidence. The authorities periodically become the object of criticism, corruption scandals. One of the reasons is the ineffectiveness of criteria and indicators for assessing the performance of both individuals and departments as a whole. This is predetermined by the practice of formation of criteria and indicators of performance evaluation by the evaluated structures. In such conditions, the departmental interest is laid, a number of indicators are ambiguous and, under certain conditions, they can be considered both positive and negative. Quite objectively the question of improvement of this tool is raised. Departmental isolation of the state bodies determines and normatively establishes the discreteness of statistical data, evaluating the analyzed structure, the lack of continuity of tasks. There is no correlation between the efficiency of employees' performance and the size of their financial incentives. Often, the evaluation criteria create the illusion of positive dynamics, show a biased picture, thereby increasing the risks and dangers, increasing the degree of latency of negative processes, which leads to wrong management decisions. There have been problems controlling the activities of authorities by the decision of the state tasks, their nonintegration into society. The article considers, in theoretical and practical terms, the main approaches to the assessment of activity, specifies the problems causing inefficiency of criteria and indicators, formulates the directions of improvement of legal and organizational support of this activity.
BOOKSHELF
ISSN 1729-5920 (Print)
ISSN 2686-7869 (Online)
ISSN 2686-7869 (Online)