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No 1 (2019)
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THEORY OF LAW / THEORIA LEX

9-19 545
Abstract

The solution of the problems associated with the rule of law state formation and improvement of the mechanism of the legal regulation depends mainly on lawyers as a social and professional group. Hence, the need for a thorough study of lawyers’ professional activities and the problems they face in their daily work appears. Also, it is necessary to have a clear understanding of whether the lawyers are satisfied with their work. Thus, the results of the author’s sociological study of the lawyers’ professional culture can be used to evaluate their satisfaction with the work they carry out.

According to the data presented in the article, the lawyers’ assessment of the degree of their satisfaction with their work in general is quite contradicting. More than half of the respondents consider themselves not quite satisfied with their jobs. The lawyers’ job satisfaction is significantly affected by their professional specialization, work experience, age, and gender. This is confirmed by the data presented in the article. The author emphasizes the need for further in-depth and comprehensive study of the problem under consideration using the resources of sociology.

20-28 540
Abstract

The article highlights the basic lines due to which Soviet jurisprudence is becoming less Marxist and more neo-Kantian. This is the logic and methodology of the science, ontology and axiology. The very structure of theoretical knowledge — ontology, epistemology (logic + methodology), axiology — is accidental for both authentic Marxism and for later developed “Leninism.” The logic appeared the first in this sequence, inevitably followed by neokantian metaphysics that, however, remains behind the scenes of teaching and does not find its implementation in scientific research.

During the Thaw, the Moscow Methodological Circle rehabilitated neo-Kantians idea of methodology as a special section of the theory of cognition. A slightly different fate befell the ontology of law that for seven decades had been evolving from the denial of law (bourgeois law under socialism) and socialist law thinking (law as a social order, exchange attitude and a set of orders of government) to a “broad” or “liberal” approach to law (the distinction between law and the law act). Regardless of logic, methodology and ontology, neo-Kantianism manifests itself in ethics, which is terminologically fixed even in the term “axiology.”

PRIVATE LAW / JUS PRIVATUM

29-39 896
Abstract

The article is devoted to one of the most topical issues for the Russian legal order, namely: the regulation of surrogacy. This topic, unfortunately, is not sufficiently covered in the scientific and legal literature due to its novelty and a complex nature of bioethical problems.

This article provides an overview of normative legal acts regulating surrogacy, Russian and international law enforcement practice in this area, as well as legal approaches existing in other legal orders. Particular attention is paid to the latest trends and approaches associated with the adoption of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017, “On the application of legislation by courts in cases related to the establishment of the origin of children.” At the same time, attention is paid to both public and private law aspects of the phenomenon in question.

 

PUBLIC LAW / JUS PUBLICUM

40-50 912
Abstract

The paper reviews the types of state registration carried out to meet private and public needs, as well as the content of the relevant administrative procedures. The author substantiates the conclusion concerning the public purpose of the state registration referred to the jurisdiction of the federal executive authorities and other public bodies. Special attention is paid to the state registration of independent contractor agreements and public deals. The paper considers the content of the state registration under administrative law as it is established in relation to the objects of intellectual property, possession, use and disposal of individual real estate objects, as well as movable things. Also, the registration relations caused by law enforcement needs are analyzed. The paper substantiates the classification of types of state registration depending on the goalsetting, the essence of registration procedures, the status of a registering body.

The content of administrative procedures arising in ordinary or extraordinary registration relations is considered in detail.

Special attention is paid to tort relations in the sphere of public registration activities, indirect violations of administrative procedures by executive authorities and their authorized officials — “state registrars of rights.” Administrative procedures referred to the authority of public registration entail the emergence, modification, suspension or termination of a registration relationship and civilistic or public authority preconditioned by the registration authority.

Identification of features of the offense committed by the registration authority entails compensation of property damage and moral damage and damage to reputation.

Not only a specific thing with its expressed property and commodity properties, but also an intangible substance, primarily an object of intellectual property, can be an object of state registration. The public purpose of state registration is preconditioned by protection of non-public rights and interests of a business entity or a participant of a non-profit activity.

The content of administrative procedures of state registration in the sphere of law enforcement is considered in detail.

51-61 2928
Abstract

The article considers the role of non-profit organizations in the system of public administration and focuses on the peculiarities of their administrative and legal status. The author highlights an increasing role of nonprofit organizations in the system of public administration, as it is connected with the evolution of the mechanism of public administration, its decentralization and attempts to use the mechanisms of self-organization. Due to the possibility of delegation of a number of public powers by the state to non-profit organizations, it is concluded that the composition of the participants with powers in the system of public administration has changed. By involving non-profit organizations in the system of public administration, the State pursues the goal of reducing the “visible” role of the State in various spheres of economy and a political sphere. Due to the transfer of certain public powers of the State to non-profit organizations, such organizations will combine different aspects of the legal nature of the organizations, in particular the intertwined civil law status and the administrative law status, since the same normative legal acts are used without taking into account the peculiarities of legal relations in which the relevant types of non-profit organizations participate. The difference between the legal status, the legal status of a non-profit organization as a participant of administrative legal relations and a non-profit organization as a participant of civil law relations is that in civil law a non-profit organization is considered as an organizational and legal form of a legal entity — a participant of transactions and relations regulated by civil law; under administrative law and in administrative-procedural relations it is treated as a form of implementation of public rights of citizens in the sphere of public administration, certain public powers of the State in the sphere of public administration. Attention is drawn to the duality of the legal status of non-profit organizations, that is associated, among other things, with different moments of their legal personality. The moment of emergence of capacity under administrative law and legal capacity differs from the similar moment of emergence capacity under civil law and legal capacity.

62-69 1432
Abstract

The article deals with the constitutional and legal basis for determining the system of parliamentary law: The subject matter, methods, and sources. It is stated that legal norms characterized by common features, internal unity and different from the norms of other branches of law form an independent branch (a sub-branch of constitutional) law. For now, the institutions of parliamentary law are studied within the framework of the theory of state and law, constitutional (state) law, and, to some extent, administrative law, and parliamentary procedural law is distinguished. In this regard, the article notes that the development of democracy and parliamentarism, the increasing importance of Parliament in the implementation of the principle of separation of powers always compels the legal doctrine to separate parliamentary law. The author substantiates the conclusion that constitutional law, as the leading branch of public law, regulates social relations that are usually called basic (constitutional) — or fundamental — in each area of life, while parliamentary law has theoretical and legal prerequisites for being separated into an independent branch (sub-branch of constitutional) law without violating the organic unity of constitutional law. Thus, the author believes that at the present level of democracy development it is possible to state the presence of prerequisites for the formation of a new branch (sub — branch) of law — parliamentary law.

70-82 1024
Abstract

25 years of influence of the Constitution of the Russian Federation on public relations in our State has radically changed the idea of the Constitution and Constitutional Law. Admission of the Constitution of the Russian Federation by the society marked the formal recognition of social values spelled out in the Constitution and the nature of the legal principles implementing these values that are generally recognized by international law. The system of constitutional principles of natural origin became the basis for the constitutional regulation of social relations. The natural origin of legal principles means that they emerged in legal reality as a result of rational activity of a man, not only in terms of legitimizing the natural rights inherent in the man from birth, but also within the framework of their corrective impact on state regimes in light of promotion of civil rights and human freedoms. The natural origin of the constitutional principles gives an objective character to the constitutional regulation, and their predetermination and supremacy in relation to the influence of the legislative activity of the State power allows to create a constructive dichotomy of the constitutional and legislative regimes. In the theoretical and legal sense, constitutional principles as regulators of social relations constitute the “law of the Constitution”. Its fundamental part consists of the basic constitutional principles that determine the foundations of the constitutional system. The paper defines the mechanism of influence of constitutional principles on public relations that is different from the normative regulation: constitutional principles, in contrast to the norms acting in full compliance with their content, act in accordance with a a certain detectable extent of its content. Legal development of constitutional regulation arises from the interpretation of constitutional principles by the Constitutional Court of the Russian Federation. Resolving cases with regard to the constitutionality of normative legal acts, the body of constitutional justice creates legal stances — new constitutional regulators of social relations that not only correct the constitutional development of the State, but also are the law-making characteristics of the decisions. Using the construction of constitutional regulation, the author proposes an actual understanding of the problem of constitutional identity.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

83-96 1146
Abstract

Without knowledge of history, without a deep retrospective analysis of any legal institution it is impossible to imagine the ways for its further improvement. This is quite true of the institute of murder by mother of her newborn child. This paper attempts to investigate the evolution of criminal responsibility for the murder of a newborn child by the mother, to establish the attitude of the legislator to this type of crime at different stages of development of the Russian criminal legislation — from the time of Ancient Russia to the present. To this end, the main historical legislative acts on the regulation of criminal law against this act are analyzed.

The problem of the considered type of murder is extremely relevant. In the Russian doctrine of criminal law there are two positions concerning Art. 106 of the Criminal Code of the Russian Federation providing the softened criminal responsibility for this crime. According to one of them, the article is relevant but it needs to be improved; according to the second point of view, it is subject to exclusion and the guilt of such a murder should be criminalized on general grounds for a classified murder. The author of the article speaks in favor of the latter point of view.

97-107 1691
Abstract

Despite the importance for criminal law, the basis of criminal liability remains quite controversial in the criminal law science. At the same time, it has been studied in numerous sources. However, instead of analyzing criminal law, many authors consider it their duty to first share their own ideas about the basis of criminal responsibility, regardless of the actual content of the law.

This article is structured differently. It attempts to understand what the norm-maker himself meant when formulating the provisions of art. 8 of the Criminal Code of the Russian Federation. The author finds it necessary to identify and analyze the features introduced by him as the basis of criminal responsibility. At the same time, the views on the basis of criminal responsibility existing in the theory of criminal law are critically examined, the failure of both this basis and the wording of art. 8 of the Criminal Code of the Russian Federation is recognized. The author expresses agreement with the logic of the introduction of a two-pronged basis of criminal responsibility provided by legislators. Based on the study the author proposes and justifies a new solution that better meets the urgent needs of the practice of criminal law implementation.

GENOME / GENOME

108-118 1479
Abstract

In modern society, methods of identification of persons on the basis of their physical, biological or behavioral characteristics are actively developing. European countries are in the process of developing a holistic doctrine on biometric control and are clarifying their position on situations where biometric data are used by individuals.

From the position of information law, the paper presents a new author’s approach to the problem of processing biometric data and genetic information. The division of biometrics into “trace” and “non-trace” is losing its meaning. A new classification of biometrics into digital and analog is proposed.

Biometric access control should not become a routine phenomenon in the framework of the organization of the company and without any reason to replace other existing types of control. The interested person can be entrusted with the storage of their own biometric data to reduce the risks of leakage and the consequences of exposure to them. Biometric data must be stored on the company’s servers in encrypted form, which makes it impossible to use them without the consent of the person concerned.

Biometric data should be protected by a special legal regime. The analysis of the European and Russian legislation made it possible to draw the following conclusions: biometric data is a special type of personal data, a special legal regime and regulation should be established; digital biometrics needs special legal regulation, since it is the most vulnerable type; genetic information does not fully correspond to the concept of personal data, as it can relate to an unlimited number of persons. This determines the need to develop a special law “on genetic information”.

PHILOSOPHY OF LAW / PHILOSOPHIA LEX

119-143 789
Abstract

The paper is devoted to complex and multifaceted relations arising in the field of public administration, the symbolic embodiment of which is the “ruling machine”. There is a long tradition based on the analogy between the machine mechanism and human social structures. Since the era of the absolutist states and the industrial revolution, these analogies have been transferred to a special social and organizational structure, which is “bureaucracy”. A special place is occupied by the technique of management, technology of domination and organizational and technical standards, which gives the bureaucracy an image of a technical structure rather than a human team. At the same time, the strict regulation of this structure, based on a system of norms, regulations and codifications, makes the bureaucratic structure permeable to the mechanisms of legal regulation. Historically, the “ruling machine” has demonstrated its adaptability to a variety of political, economic and legal contexts, demonstrating its technical “neutrality”.

HISTORY OF LAW / HISTORIA LEX

144-158 610
Abstract

The paper deals with the process of changing the pre-revolutionary system of legal relations and institutions to a new legal order, the main purpose of which was to consolidate the new state of power established in Russia after October 1917. The main research task is to identify the fundamental, basic laws of the development of law in the period of revolutions based on the Russian experience.

It is emphasized that at the initial stage of the revolution the old legal forms were mixed with the new ones, the old law continued to exist in legal practice. Even in the face of radical changes, it is impossible to carry out transformations simultaneously and everywhere. For some time, there is a force of inertia, when the old statelegal forms continue to operate.

A number of basic conceptual provisions are substantiated. First, the legislation at the first stage of the revolution reflects the primary political aspirations of the authorities to consolidate and legitimize political success, therefore, it is characterized by the transience of adoption, does not have a system and consistency, and is intended mainly for the emergency bodies that implement it. Second, legal norms are class-based, characterized by class-based rigor and revolutionary expediency, synonymous with revolutionary legitimacy. Third, revolutionary expediency leads fatally to the excessive role and importance of emergency organs, leading to their arbitrary actions and massive abuse of the right to repression. Fourthly, the Soviet model of justice in determining its tasks, principles of judicial system and functioning, implementation of punitive policy corresponded to the model of the Soviet state. Its defining function in this model was the function of the implementation of political doctrine by legal means and the protective function of the system.

All phenomena in the legal sphere of Russia are considered in the period from October 1917 to the end of 1920.

159-173 3185
Abstract

The paper presents an analysis of legal technologies of counteraction to terrorism in Russia in 19061907. The complex of special organizational and legal measures taken by the Russian authorities at the beginning of the XX century in order to counter the terrorist threat is studied. Special attention is given to both law-making and law-enforcement activities of the Ministry of Internal Affairs, which continued to carry out systematic work to suppress the activities of terrorist groups. An attempt is made to establish key legal obstacles and restrictions to build an effective mechanism to combat terrorist crimes. It is noted that by the beginning of 1906 the method of organizing terrorist activities of revolutionary organizations had undergone significant changes: terror in Russia had become decentralized, and the procedure for making a decision on the implementation of another terrorist act had changed. The political component of the Party’s activities faded into the background, as the mass nature of terrorist practices by revolutionaries was not actually analyzed in any way, and the terror itself became more opportunistic and consistent with the realities of the revolutionary time. During this period, Russia began to register the facts of terrorist acts against members of pro-government organizations and structures of patriotic orientation: cases of terrorist acts against representatives of “legalized” political societies (primarily Black-Hundred organizations) became more frequent, which could provoke the emergence of mass inter-party protests. At the same time, the analysis of the revolutionary situation in Russia at that time shows that the majority of the known revolutionary parties made attempts to organize a mass armed uprising. Attention is focused on the emergence in the terrorist environment of a new tactic of political struggle through terrorist attacks — the organization of guerrilla warfare. Particular attention is given to the study of the problem of effective management of the Secret Agency of the Police Department.



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