No 12 (2018)
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IIMPROVEMENT OF LEGISLATION / NOVUS LEX
9-17 935
Abstract
The article discusses two types of the new atypical forms of employment: strategic or ad hoc employee sharing which already exist in practice but fall outside of the scope of legal regulation in Russia. The author considers that strategic employee sharing, where a group of employers creates a joint structure for hiring the employees and coordinates the employer’s function between the companies and individuals, may be beneficial both for employers and employees. Employers who do not require a full-time employee and who are not aware in advance about the exact amount of the work time they require, may share assignment of work to one employee. In such cases they may minimize the risks of payment of wages for idle work and use the part-time labour more effectively. The employees, in their turn, reduce the risks or precarity of their employment compared to the situations, when they need to deal with each part-time employer individually. Besides that, using this scheme they avoid the risk of conflict of simultaneous work tasks from several part-time employers. The legalization of strategic employee sharing requires the establishment of certain legal rules, such as the regulation of minimum workload and maximum overall working time, the allocation of liability and the obligations concerning the wages’ payment by specific member of the group of employers etc. The ad hoc employee sharing may be mutually beneficial for employers and employees because of the similar reasons. Making this form of employment legal requires the establishment of maximum proportion of working time by the employee working for the secondary employer compared to the main one. Otherwise the ad hoc employee sharing may be used as a tool of abuse of rights analogous to the abuses performed within the temporary agency work legal framework. Besides that, the same safeguards as the ones provided to the employees working on the assignment of personnel contracts, are necessary for this type of employment relations. If these forms of work will be introduced into the Russian law, it will be possible to open the doctrinal discussion concerning the emergence of the new actor of labour law – a collective employer.
COMPARATIVE STUDIES / COMPARATIVE STUDIES
109-118 419
Abstract
In 2013, China modified its Company Law, and this modification created a new capital system, which is not exactly the same as legal capital system in the Germany or the authorized capital system in the Anglo-American countries. Jurists in China debate on the classification of the new capital in the traditional category among the three capital systems, which are legal, authorized and compromise capital systems. Some argue that the Chinese new capital is still legal capital, and some claim it is to be a compromise capital. However, that endeavor is useless and they take a wrong logic approach. They always change the traditional definition of each capital system in order to make the new capital of China fit for the one they argued. The new capital in China Company Law is a new one, and it does not belong to any type of existed capital system all over the world. Because the category of the capital system is inductive consequence, which is just a description of the typical modern developed countries legislation and is not a deductive one based on a closed logical loop. There is no logical reason why we must classify the new Chinese capital into one of them. A more important academic dilemma is that such controversy has no theoretical and practical meaning. The category of the capital system is on the end branch of the corporate theory, and no theory or institution is bases on it. It is only a theoretical analyzing conclusion, without any reasoning or inference following. Furthermore, this controversy has no contribution to the legal practice. The running, registering of a company, even resolving a company dispute has never and will never consider the category of a capital system offered by the Company Law. Recognition of the legislation innovation is pragmatic and struggling on the theoretical problem is helpless.
HISTORY OF LAW / HISTORIA LEX
145-156 452
Abstract
By means of historical legal, historical sociological, statistical analysis, the experience of implementation of the Russian legislation on dismissal of the worker in the period of the 1990s is investigated. The specificity of the period is due to the preservation of the Soviet Institute of termination of the employment contract with a radical change in the socio-economic and political context of social life. In the context of the unpredictable further development of the country, the legislator preferred a cautious model of reform of the law on dismissal. At the same time, the actual practice of applying the rules on dismissal has significantly changed. The most problematic area was the release of an employee in connection with the liquidation of the organization and staff reduction. In court practice on cases of termination of the employment contract at the employer's initiative the dominant approach of the Soviet law enforcement remained; the employee was restored to work even with minor formal deviations from the procedure of termination of the contract. The importance of measures of social impact as a condition taken into account when dismissing the employee for systematic failure to perform work duties decreased. There was a self-removal of the State from the field of implementation of educational function of the labor law, in particular in the field of dismissal for appearance at work in state of intoxication. The spread of the employment contract in 1990s had a well-known negative impact on the practice of termination of the employment contract at the employer's initiative. The employment contract was understood as an agreement between an employee and an employer, which in its essence was a civil contract. From the point of view of issues of the employee release, the employment contract faced an interesting practice of inclusion of contractual bases of dismissal that were not provided by the law. Some of the gaps were filled by the practice of the Supreme Court of the Russian Federation, in particular concerning the date of dismissal of the employee in connection with the liquidation of the organization. In general, the period is characterized by a transitional nature. The determining factor in the development of the institute was the economic dominance of the employer. Frequent violations of the rights of an employee in the field of dismissal were not suppressed by the State or Union bodies and were the main content of public life. At the same time, provisions of the Labor Code of the Russian Federation of 1992 on termination of the employment contract at the employer's initiative underwent practical approbation. Their application made it possible to analyze social and economic needs, to develop the concept of further development. The paper develops the author's thesis "Dismissal at the employer's initiative".
INTERNATIONAL LAW / JUS GENTIUM
37-47 1149
Abstract
The paper contains analysis of a specific concept of "generally recognized principles and norms of international law" in comparison with the phenomenon designated by the term 'jus cogens' and common to the Western legal doctrine and case law. A special issue in the theoretical analysis thereof relates to a comparative law approach to the results of the past and present stages in examination of the same terms performed by the UN International Law Commission. The examination in question was affected within the framework of codification of the law of international treaties in the 60s of the twentieth century and the current specific work in respect of jus cogens. These two terms currently coexist in the international law doctrine and practice neighboring with others, i.e. the terms that are also included into the range of 'principles:' "basic principles," "general principles of law," "principles of general international law," etc., which requires appropriate allocation of meanings among them.
48-56 789
Abstract
The article is devoted to the development of bilateral and multilateral relations between Russia and the European Union (EU). Such relations are based on the principle of cooperation among States, which, in accordance with international law, establishes the duty of cooperation regardless of differences between States on an equal basis and in a variety of fields. Since the scope of modern international law has expanded significantly, many areas of cooperation have been developing rapidly. These include such areas as science, innovation, education. In the context of internationalization of science, the development of mutually beneficial international cooperation for the formation of a model of international scientific cooperation and international integration aimed at protecting public interests and improving the efficiency of Russian science requires the analysis of the best forms of cooperation, information exchange, resolving legal issues of participation in various scientific projects. Fields of science, innovation and education are among the unifying areas in which the development of international cooperation continues despite the adverse international situation. The article deals with conventional, non-conventional and institutional forms of between Russia and the EU.
57-66 827
Abstract
The paper, on the basis of analysis of provisions of the Constitution of the Russian Federation and the Russian legislation, international instruments and domestic and foreign published scientific papers on the subject in question, shows that, despite the objective character of globalization that covers all States, numerous issues exist that cause scientific debate and provoke arguments between States. There are many reasons for the adverse response to globalization. For example, globalization not only brings obvious benefits to national States and the world community as a whole, but also creates real challenges with regard to the supremacy of the Constitution and threats to national security. In addition, globalization itself contains internal contradictions, since it is characterized by a certain duality expressed in the existence of internal interrelated counter processes: internationalization of the domestic regulation and constitutionalization of international relations. The author has analized the interaction between the provisions of the Russian Constitution and the generally recognized norms and principles of international law, as well as mechanisms of ensuring the supremacy of the Russian Constitution in a globalizing world. Particular attention is paid to the decision of the Constitutional Court of the Russian Federation of 14 July 2015 No. 21-P. It is argued that a systematic approach to the processes of globalization should be based on the interaction of fundamental rules of international law and the provisions of the Constitution of the Russian Federation. To sum up, the author draws a conclusion that the basic principles of international law and the supremacy of the Constitution of the Russian Federation prevent the direct interference of both legal systems in the affairs of each other. This seems to guarantee the preservation of state sovereignty of Russia and the search for a compromise in resolving conflict issues affecting the interests of several or many States in the processes of globalization.
PRIVATE LAW / JUS PRIVATUM
18-24 821
Abstract
The paper analyzes the judicial arbitration practice of application of the rules of liability of persons controlling the debtor. The study shows that in recent years there has been a positive trend of bringing to subsidiary liability of persons controlling the debtor.
25-36 507
Abstract
The paper deals with the issues of civil qualification of illegal actions aimed at creating works of science for third parties, doctrinal approaches and practical consequences of some types of such qualification, the possibility of applying provisions of Article 169 of the RF Civil Code to such actions within the framework of combating plagiarism in science. Attention is drawn to the problem of identifying a private interest infringed by the actions described above. To this end, creation of works of science for third parties is analyzed using the civil design of an invalid transaction. The problem of determining the object of intellectual rights within the framework of the concept underlying Part IV of the RF Civil Code is considered as a theoretical problem that complicates actual fight against plagiarism. As an interim conclusion of the study, it is proposed to admit that the legal tools existing in the current legislation of the Russian Federation in terms of combating plagiarism in the field of science are not effective and need to be improved.
CRIMINAL LAW SCIENCES / JUS CRIMINALE
90-100 404
Abstract
This paper is devoted to the current problems of theory and practice of cognitive activity of an investigating officer in the field of pre-trial criminal proceedings. The ideas expressed by the authors, the developed provisions and recommendations, characteristics and classifications concerning the subject, methods, means and technologies of the investigator's cognitive mission are based on empirically established regularities of two groups (categories). The first is the regularities of criminal and related types of legally significant behavior (activity), as well as the process of its reflection in the material environment. The second group is the laws underlying the organization and implementation of anti-criminal investigative activities in the stages of initiation of criminal proceedings and preliminary investigation. Considerable attention is given to the issues concerning the relation of investigative knowledge and recognition, the essence and mechanisms of these forms (directions), practical application of the method of the so-called backward causal sequence that is used to determine the causes and other circumstances of socially dangerous incidents. The problem of formation, interaction and recognition of mental images of the acts containing indicia of crimes are also thoroughly considered. Along with this, the paper reflects the definitions of the concepts of investigative knowledge and investigative recognition, criminally relevant objects, mechanisms of investigative knowledge and recognition formulated by the authors.
101-108 586
Abstract
Based on the expert assessments and data of criminal statistics, the author make a conclusion about low efficiency of criminal legal means of combating illegal criminal prosecution. The paper identifies factors of legislative and law enforcement nature, reducing their effectiveness. It is proved that the fundamental reasons for the low efficiency of criminal legal counteraction to illegal criminal prosecution lie in the law enforcement plane.
PUBLIC LAW / JUS PUBLICUM
67-82 1058
Abstract
The paper systematizes the directions of the state policy in the field of environmental management on the following grounds: 1) the elements of environmental protection or elements of environmental safety; 2) actions reflecting the content of "rationality;" 3) renewability of natural resources; 4) the object of the nature; 5) the components of the natural environment. The grounds determined for classification helped to identify overlaps in the ideas and attitudes to environmental management set out in numerous Russian political and legal instruments of environmental character and to determine internal contradictions. At the policy level, environmental management is recognized as the basis for long-term economic sustainability. However, its content is poorly developed. There is no terminological unity regarding the most effective use of the natural environment. Unequal in essence, the terms "rational nature management," "sustainable natural resource management," sustainable natural resource management" and "environmentally safe nature management" are used interchangeably. An unreasonable confusion of issues of environmental management, environmental protection and environmental safety is taking place. Environmental management is not endowed with specific legal characteristics. It is incorrectly described as environmentally sound or sustainable management of the environment. Due to the incompleteness and inconsistency of the state policy in the field of environmental management, there is practically no law enforcement practice reflecting the implementation of the relevant policy directions. Judicial interpretation concerns only some participants of the rational use of natural resources or the rational use of certain natural resources.
83-89 579
Abstract
The paper analyzes the new realities in interrelations between the state power and local self-government related to the process of governmentalization of local self-government. This problem was raised by the author in his report at the IXth Annual All-Russian Scientific and Practical Conference "Actual Problems of Administrative and Procedural Law" (Sorokin's Readings) that was held on 23 March 2018 at the St. Petersburg University of the Ministry of Internal Affairs of Russia. In this paper the author's conclusions about the two trends in the process of nationalization are further developed: official delegation of powers from public authorities to local government and reauthorization of powers between local governments and public authorities of a constituent entity of the Russian Federation. The first trend based on the provisions of Part 2 of Article 132 of the Constitution of the Russian Federation is well studied by lawyers and is actively applied in practice, the second trend has not yet been subjected to proper consideration in the legal literature. At the same time, the legislation already contains several legal models of reauthorization of powers between local authorities and public authorities of the constituent entity of the Russian Federation. The author distinguishes three such models, conventionally referring to them as an emergency model, federal model and regional model. The paper dwells on the content of the legal models in question, shows their impact on the process of the actual transformation of local government into one of the levels of executive power.
CYBERSPACE / CYBERSPACE
132-144 1432
Abstract
The author investigates the theoretical aspects of implementation of the territorial principle of intellectual property protection in the digital space. The active development of digital space by participants of cross-border relations in the field of protection and use of intellectual property rights, the popularization of the Internet and the expansion of the areas of legal relations implemented in the Network are accompanied by the emergence of new problems of protection of intellectual property due to their intangible nature and the possibility of one action to violate the rights to intellectual property in different countries. These problems persist in view of the territorial principle of the protection of exclusive rights, as well as the serious importance of the sovereignty of states in the classical territorial understanding, and its new forms, especially information sovereignty. The author examines the provisions of international treaties in the field of protection of various intellectual property objects, considers the features of the development of the territorial principle of intellectual property protection, digital space as a medium for the implementation of this principle. The question of the boundaries of the territorial sovereignty of states in the digital space is proposed to be solved through the development of clear criteria for determining the "territory for the implementation of relations". As universal criteria, it is proposed to use the "territory of the rights" and "territory of the permitted use of rights", which in cases with international registration specify the territory of the rights. In the absence of an international treaty regulating the actions of states in administering various segments of the Internet, the effective protection of intellectual property in cross-border relations, taking into account the protection (administrative and judicial) systems of other states, it seems appropriate to use the principle of noninterference in the implementation of intellectual property rights outside the national scope of rights.
RECOMMENDED BOOKS AND REVIEWS / INDEX LIBRORUM
157-160 529
Abstract
The review presents the authors' view on the scientific work by V.M. Syrykh "Unknown Lenin: The Theory of the Socialist State (Without Prejudice and Servility)". The structure of the book and its theoretical and practical potential are evaluated from the standpoint of the critical approach. The authors show V.M. Syrykh as one of the few major specialists in the field of Marxist theory of law and State who has earned this status due to her numerous and large-scale publications. The book is a multifaceted test that is able to attract the attention of jurists, historians, political analysts, eminent and young scholars. According to the authors, V.M. Syrykh failed to provide an impartial approach to the analysis of the documents and materials relating to the era of construction of the Socialist State. However, the expressed sympathy for the leaders of the October revolution and their ideas reflects her scientific rather than political bias. The author of the monograph shows her sharply negative attitude to the critics of the Marxist-Leninist doctrines, believing that their approach is contrary to the principle of historicism. V.M. Syrykh states that any attempt of ahistorical analysis by D. Volkogonov and E. Rosina leads the researchers away from the realities of the time. To meet the methodological requirements (note that V.M. Syrykh's PhD thesis and doctoral dissertation are devoted to the problems of the methodology of cognition), she extensively supports her book with the primary sources of law, which makes it highly significant for understanding the processes of formation of the Socialist State. However, such a plentiful citation has a downside, threatening to turn the study into a paradigmatic textbook. The authors of the review believe that more (than it is present in the peer-reviewed edition) emphasis on historical criticism of sources would help to avoid the slightest hint of such a suspicion.
SCIENTIFIC MEETINGS AND EVENTS / CONVENTUS ACADEMICI
161-174 439
Abstract
The article presents the results of the IX Perm Congress of Jurists "Legal Regulation of Digitalization of Society: Priority Goals". Every autumn the Law Faculty of the Perm State National Research University holds Interregional Russian forum for academic legal science - Perm Congress of Jurists. Universities-partners of the Congress are: the Kutafin Moscow State Law University (MSAL), the Ural State Law University (USLU), Kazan (Volga region) Federal University (KFU), Saratov State Law Academy (SSUA).
BRICS: PEOPLE'S REPUBLIC OF CHINA BRICS: PEOPLE'S REPUBLIC OF CHINA
119-131 1394
Abstract
Legal principles, being the basis of legal norms, reflect people's understanding and perception of the basic laws, contain legislative value motivation, the basic spirit and direction of law enforcement interests. The paper focuses on the analysis of the criminal law principles in China and Russia. The Criminal Code of the Russian Federation enshrines five principles: legality, equality of citizens before the law; guilt; justice; humanism. Articles 3, 4 and 5 of the Criminal Code of the People's Republic of China (PRC) of 1997 provide for the principle of legality, the principle of equality of citizens before the law, the principle of conformity of punishment with crime and criminal liability, respectively. These three articles are a novel of the PRC Criminal Code of 1997. The basic principles of criminal law are considered one of the main problems in criminal law. In the process of drafting the Criminal Code, legislative and judicial bodies, as well as experts had different opinions as to whether it is necessary to further provide the basic principles in the Criminal Code of the PRC, what basic principles should be added, how and which Chapter of the PRC Criminal Code should describe these basic principles, etc. All these issues and their solutions are considered in this paper. The authors come to the conclusion that in both countries the principles of criminal law are understood as fundamental ideas provided for in the criminal law, which, reflecting the universal values, determine both its content as a whole and the content of its individual institutions. The researchers propose to include the principle of humanism in the General part of the Criminal Code, and to exclude the principle of guilt from a number of principles of the Criminal Code.
ISSN 1729-5920 (Print)
ISSN 2686-7869 (Online)
ISSN 2686-7869 (Online)