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No 3 (2016)

COVER ARTICLE

9-21 814
Abstract
The article is devoted to the memory of the eminent Professor, Doctor of Law, Ekaterina Kozlova, her life, career in the legal science, as well as her accomplishments in scientific life, her works and substantive contribution in the legal science. For many years, Ekaterina Kozlova was the Head of the Department of State Law in the Kutafin Moscow State Law University (MSAL). She was one of the University greatest assets; she did a lot for the University having brought up several generations of students Ekaterina kozlova led a difficult life; she soon lost her relatives, but still managed to hold out for future generations. Her life was full of joy and sadness, memorable events. Thus, the faculty members remember her as an outstanding professor, a person with a big name With the benefit of her legal habit of thought and brilliant ability to explain different issues connected with the legal science, Ekaterina Kozlova, in cooperation with Oleg Kutafin, became the founder of constitutional law of the Russian Federation. The first Course of Lectures on "State Law of the Russian Federation" edited by O. E. Kutafin was publicized in 1993-1994. Thus, it is safe to say that it was the first textbook that laid the foundations of new approaches to the formation of constitutional law in the Russian state. Solving the problem of giving a definition of constitutional law, Ekaterina Kozlova took into account the idea of the society, its functional and structural unity, rather than administrative organization of a state. This means that Professor Kozlova comes to the conclusion that, being the leading branch of law, constitutional law establishes and regulates 'social relations through which structural and functional unity of the whole system of the state is provided". This approach was further developed in academic textbooks on constitutional law of Russia. It is also important to note that after the adoption of the 1977 Constitution, when considering the question of the theory of constitutional law, Professor Kozlova came to the conclusion that state law is intended to secure the legal model of the society, its foundations and principles, ensuring the unity of society, i. e. the main function of the state is to care about the society, the people as the sovereign holder of power. Jurisprudence was the main business of Professor Kozlova. She was often concerned about the issues of state formation, social status, in one word, the problems of the state. Ekaterina Kozlova became a classical scholar during her lifetime. Her divine gift of creativity was reflected in her works. Every work written by Ekaterina Kozlova is a scientific masterpiece that precisely and unambiguously explains legal issues, issues of the theory, and issues of the foundations of state legal administration. All her works should merit and warrant the attention of readers. Being a constitutionalist, Professor Kozlova was permanently in scientific search dealing with rather complicated issues. For example, what is the legal force of different rules of law? What are those rules? Can the laws reproduce the norms of the Constitution word for word? Professor Ekaterina Kozlova was an authority in the science of constitutional law. She acted as an expert on different state issues (constitutional issues) in the Constitutional Court of the RF Most of her works have been honored with the highest awards, for example, the textbook on constitutional law, coauthored with Professor Oleg Kutafin, was awarded the Prize of the President of the Russian Federation in the Field of Education in 2001. Ekaterina Kozlova memory, as a wonderful person, prominent scholar in the field of jurisprudence known to the whole country, and a wise mentor, will always remain in the hearts of her colleagues and students.

A STUDY OF RUSSIAN STATEHOOD

22-34 847
Abstract
The article is devoted to the problem of development of constitutional law. The author proves that Russia played a considerable role in preparation and adoption of the Constitution of the Ionian Islands in 1799 and 1803, as well as in creating other draft Constitutions for the Ionian Islands. The evaluation of Russia's contribution is made on the basis of a detailed examination of scientific literature and archival materials in Russia and on the island of Corfu (Greece), which made it possible to fill in the gap in the Russian constitutional history and to raise the question of its new interpretation, as well as to re-evaluate the peculiarities of the way Russia passed to its constitutional form of government. The Russian Empire in the late XVIII-early XIX centuries succeeded in creating constitutional documents that reflected evolutionary, rather than revolutionary transition to the constitutional form of government, though not in its territory. Thus, during the period of early constitutionalism the variability of such constitutions, the possibility to implement different models and interests while preserving traditional government in general were substantiated in practice, and, subsequently, they were confirmed by the practice of many countries. Constitutionalism was enhanced by the unique experience of drafting constitutions on the basis of coordination of opinions of many participants of different ranks from several countries. Russian experience justified that even in the case of drafting constitutions in the territories with foreign military presence, there is a possibility to implement the constitutional process, provided the population is actively involved into the process and alien patterns are not imposed on the population. As a result of adopting constitutions, the Islands acquired the constitutional experience of creating a semi-independent state. It was the first precedent of constitutional transition from the colonial status to the status of own statehood. Constitutional law interpretation of the constitutional experience of foreign countries and Russia and "granting" constitutions 'on the outskirts" of the Empire reveal new facets of the formation of modern constitutionalism, whereas the examination of the relevant events and facts makes the picture of the constitutional history of the humanity more ultimate
35-44 1195
Abstract
The majority of modern democratic states recognize political parties as a necessary element of implementation of the rule of the people (democracy). Therefore, they should be provided with the opportunity to be represented in elected bodies of the government. The theory and practice of representative democracy are inexhaustible sources for researchers, as well as the historical process of continuous search for new forms of the most harmonious coexistence of the state and law, the citizen (their associations) and the government. Political parties are independent from the state. Political parties activity work within the territory of the whole country. Any political party is founded to assert power in a legitimate way by means of elections. Both in Russia and in other countries political parties are key participants of electoral legal relations. The main tendency of the contemporary Russian electoral legislature is the expansion of the foundations of participation of political parties in the elections held not only at the federal level, but also at regional and municipal levels. The real proof of the increasing role of political parties in the electoral process is the growing number of elections held on the basis of the distribution of seats between party lists in proportion to the number of votes cast. The federal legislation reform carried out in 2012 became the basis of this process. The experience of application of foreign laws offering a variety of forms of legal regulation of regional branches and structures of political parties has evolved. In addition to the general guidelines in the sphere of elections and generally accepted unified election standards, each state finds its own distinctive way to ensure democratic, legitimate elections. The article addresses controversial issues of the electoral process, legal regulation of political parties and their branches, etc
45-52 423
Abstract
The development of the modern Russian state shows that at this stage it cannot function properly without rigorous involvement of the public in this process. Public authority is moving towards the transfer of its functions to the private sector to the extent possible and within the framework of existing constitutional law regulations. Many tasks today are performed by various institutions of civil society, leaving it up to the state to carry out the function of the "night watchman". However, we must not rest on our laurels and wait for new initiatives launched by the current government. The legislation allows the public to be actively involved in solving public issues, including exercising influence on public authorities. In building on this trend, we bear on court of the reader the idea of integrating social and state certification process into law enforcement practice. The gist of such activity is that state and public institutions that have already been established (public chambers and public councils under government bodies, public and supervisory committees) are eligible to carry out public certification of state servants within the framework of current legislation. Such a state servant would be given public evaluation that would be taken into account by the head of the relevant department when developing personnel. By all means, employees may not be dismissed on the ground of certification results, as there are special procedures established by the legislation for this purpose. However, resolving the issues of promotion or demotion, rewording or sanctioning of state servants by a head of a structural subdivision would be easier and more understandable for all parties concerned. State and public certification must be carried out by the experts in this area who are the most respectable staff members of state and public formations (the leaders and activists of the trade union movement, representatives of veterans' organizations, etc.). At the same time, a state authority or a state and public formation should set clear requirements for experts in charge of such certification. Following this procedure, there is a possibility to develop the schemes of public encouragement of the most conscientious employees including their recommendation for the public awards.
53-68 563
Abstract
The article provides the definition of the concept «institutionalization»; it also considers the forms of self-organization of the State Duma of the Federal Assembly of the Russian Federation, regional legislative (representative) bodies of state power and representative bodies of municipalities provided for by the current constitutional law legislation. In addition, the article pays particular attention to such constituting procedures as verification and validation of the powers of elected deputies that were widely used by the Soviet representative bodies and, according to Professor Kozlova's opinion, is not currently in use The author analyzes and compares the content of the legal acts of the Soviet and post-Soviet period in terms of regulation of the procedures named above, determines when and under what circumstances in modern Russia there was a refusal to verify and validate deputy powers of Russian representative bodies, and makes the attempt to answer the following questions: Was the verification of deputy powers carried out in the post-Soviet time by election commissions appropriate and effective? Shouldn't we return to representative agencies the procedure that was an integral part of their constitution for over 70 years? On the basis of the analysis of current federal legislation the author concludes that the verification of the powers of the deputy that are currently carried out by the election commissions is not efficient enough. To solve the problems identified in the article the author suggests that, first, the procedures of verification and confirmation of deputy powers should be referred to the jurisdiction of relevant representative bodies; second, the mechanism of interaction of election commissions and representative organs in terms of checking deputy powers should be set forth in the law; third, existing regulatory acts should be supplemented with the norm that deprives an elected deputy of the right to vote until he produces documentary evidence that he terminated all powers incompatible with the status of a deputy.
69-81 592
Abstract
The article is devoted to the analysis of the works by Professor Ekaterina Kozlova, who is a classic of state law. Her works are devoted to the rule of the people (democracy) and the laws of its development. The author traces the implementation and the regularities of development of one of the most important institutions in state law that were identified by Prof. Kozlova, namely, the rule of the people in contemporary constitutional law science and practice. The article considers the issues of the theoretical content and dynamics of the development of basic concept "popular will", the processes of its formation and the methods of its objectification, its subjects that are the bearers and exponents of the will in works by Prof E. Kozlova, in the science of contemporary constitutional law and in the rulings of the Constitutional Court of the Russian Federation. The constitutional imperative of the Russian statehood democracy and revolutionary changes in the system of the rule of the people determine the task the scientific society needs to decide, namely, justification of a new approach to the definition of the Russian statehood. It is obvious that the vector of the development of the state and law and the mechanisms of their interconnection to greater extent depend on how democracy is understood, on its essential content, the role it plays in the modern state and social life. Nowadays, the formation of the political popular will, forms of its expression and mechanisms of its implementation must be the purposes that determine the activity of the public power. Implementation of new terms into legal reality of the country carried out by the Constitutional Court of the Russian Federation and giving contemporary content to the commonly-recognized definitions need to be systemized and interpreted. The historical and comparative law methods are used to investigate the contemporary process of democratization in different spheres of administration to wide extent. In the opinion of the author, the consolidation of new organization forms of representation of the will and interests of the multinational people of the Russian Federation confirm regularities and tendencies revealed by Ekaterina Kozlova The author comes to the conclusion on the significance of constitutional principles of democracy and the rule of the people as basic principles of the Constitution of Russia for the science and practice. Ekaterina Kozlova made a significant contribution into the theory of democracy; ideas that she expressed more than 30 years ago are still actual.
82-90 2283
Abstract
The article considers the problems of formation and development of legislative and executive organs in the constituent entities of the Russian Federation. The structure of the system of bodies of state power in the constituent entities of the Russian Federation and interrelations between legislative and executive bodies should be substantially similar to the structure of the federal system, but it may take into account the peculiarities of certain constituent entities of the Russian Federation. Any deviation from the general scheme is permitted to the extent to which such a deviation is consistent with the principles of federalism and independence of legislative and executive authorities in the constituent entities of the Federation within the framework set forth in the legislation. The author shows how fundamentally the Constitution of the RF has changed the political-territorial structure of the country, having greatly expanded the powers of the Russian Federation constituent entities, including their powers to establish and provide the activities of their own public authorities. However, quite often this process did not have any legislative support at the federal level. The situation with this regard is different in different Russian Federation constituent entities. The article considers two approaches to the formation of these authorities: first, the legislative bodies of the government that were created on the basis of representation of the interests of certain regions in the legislative body; second, in forming the legislative bodies, it was not uncommon to tend to set up the government body that not only represents the interests of the territory as a whole and that takes care of the balance between different territories (towns and districts) of these regions, but that allows the heads of administrations to monitor elected authorities. The author examines different types of electoral systems in the Russian Federation. The article traces the idea that within a single state that implements the common policy, three branches of government are functioning simultaneously, and each branch performs its function relying on the framework determined by the legislature.
91-111 616
Abstract
On the basis of documentary sources (transcripts of the Congress of People's Deputies of the Supreme Council (the SC) and the Constitutional Commission of Russia) and other materials, the author, a member of the Constitutional Commission and the Chairman of the Legislation Committee of the SC, examines the peculiarities of the process of drafting and signing the Federal Treaty, considers certain aspects of the political and legal debate on the Federal Treaty in May 1990 - April 1992. The author expounds the opinions concerning the correlation between the Constitution and the Federal Treaty of such political figures as Boris Yeltsin, Ruslan Khasbulatov, Ramazan Abdullatipov, Oleg Rumyantsev, et al., as well as a number of deputies involved in the constitutional process. The author concludes that, legally, those debates concerned the subject matter and the form of the FT, affected entities and the method of incorporation into the Constitution. Politically, it was a question of what type of Federation would be founded in the country ranging from the constitutional to treaty federation, including intermediary constitutional treaty federation. During the period in question the pendulum was swinging to the constitutional treaty federation.
112-120 1231
Abstract
The article analyzes one of the controversial issues of constitutional law, namely, the subject of this branch of law, the study of which was the focus of Professor Ekaterina Kozlova scientific research. Prof Kozlova had the same views on the nature and content of constitutional law as O. E. Kutafin who devoted the monograph to this issue. The article describes peculiarities of the subject of constitutional law that distinguishes it from other branches of law. The author justifies the dual nature of the subject of constitutional law. Analyzing different opinions of scholars, expressed primarily in the narrow or broad approaches to the definition of the subject of constitutional law, the author notes that the adherents of the scientific school of O. E. Kutafin and E. I. Kozlova concerning the subject of constitutional law distinguish foundations of the constitutional system of the Russian Federation, the foundations of the legal status of the individual, the federal structure, the system of state authorities and the system of local self-government. The author criticizes the views under which constitutional law is considered to be the general part of the whole Russian law, which was also disproved by Prof E. I. Kozlova, considerations concerning the "cumulative nature of all branches of Russian law", and some other views on the subject of constitutional law. The subject of constitutional law originates from the Constitution, it cannot be inferred without bearing on the analysis of the Constitution of the Russian Federation and constitutional law legislation In constitutional law scholars often define state law the rules of which regulate relations where state authorities and local self-government authorities participate. This approach does not change essential conventional perceptions of the system of constitutional law and its subject. The article also addresses the issue of delimitation of constitutional law from other branches of law, individual institutions of which are closely connected with institutions of constitutional law. The author draws attention to the alterations of the subject of constitutional law at different stages of development of the state, justifies the view that the current content of the subject of constitutional law has substantially updated and expanded, explains the reasons for this phenomenon. The problems considered in the article confirm Prof. E. I. Kozlova conclusion that the issue on the subject and system of the branch needs interdisciplinary discussion
121-130 631
Abstract
In domestic legal literature there are many publications devoted to determination of the legal status of supreme government authorities in the USSR and Russia. And if in respect to the Supreme Soviet (and later the Congress of People's Deputies) of USSR scientific literature has shown a particular opinion of it as the supreme organ of state power, in relation to the legal status of the President of the Russian Federation, there are many opinions. Such a situation is caused by many causes of objective, as well as subjective order. As an objective cause it is possible to name quite a short period of existence of the mentioned institution in Russia, as well as the fact that the Constitutions of RSFSR and the Russian Federation defined its legal status differently even in such a short period of time. A certain political engagement of many authors can be treated as a subjective reason. General statements of the Constitution of the Russian Federation, inherent in almost all constitutions, and relatively short action time have become the grounds for such political engagement. This has led to insufficient enforcement practice and unsubstantial array of provisions enshrining the legal status of the Russian supreme government authorities by the Constitutional Court of the Russian Federation. Therefore, scientific literature may expose suggestions to treat the President as an executive branch of power, recognize his status as a separate presidential branch and show that presidential power does not dominate over other branches of power. At the same time obvious facts are ignored: Provisions of the Constitution of the Russian Federation itself and their numerous interpretations by the Constitutional Court of the Russian Federation. Taking into account the above-mentioned and also major scientific works by Professor of the Department of Constitutional and Municipal Law at the Kutafin Moscow State Law University (MSAL) E. I. Kozlova and developing her scientific ideas and conclusions on the mentioned issue, the author suggest his own concept of the legal status of the President of the Russian Federation, as well as the Supreme Soviet of the USSR.
131-134 437
Abstract
The article considers some prospects for creation of the Common Economic Space between Belarus, Kazakhstan, and Russia. The formation of this body is a crucial step on the post-Soviet territory and a manifestation of a world integration tendency. The author proposes to consistently develop normative - law base of Eurasia integration, notes the need of rapprochement of legislations, their unification in the spheres which are defined by agreements drafting the contractual-legal base of the Common Economic Space. The following unification processes prove that the future means implementation of the principle of integration at different speed and at different levels and the search for new legal forms and constructions for prospective integration bodies enabling to save the main constitutional and legal basis, i.e. state sovereignty. The world order of the XX century in an international and legal sense has been based on the fundamental concept of sovereignty of a nation state which is the main subject of the International Law. However, this world order with its mechanisms and institutions, on the whole of democratic international communication, is gradually becoming a thing of the past. The principle of state sovereignty itself in the face of such processes as integration, emergence of new integration groups, caused by the life itself, is subjected to changes. Still, the author believes, this does not mean a crisis of sovereignty. Regarding the Eurasian Union, the issue concerns a problem of shared sovereignty, when "the inherent powers" are allocated between supranational Centre and the States belonging to this union. The author believes that the Eurasian Union represents a model of a powerful supranational organization, capable of being one of the poles of the modern world and at the same time to act as an effective "communicator" between Europe and the dynamic Asia-Pacific region. Needless to say that we do not mean any reconstruction of the Soviet Union, any " restoration " or "reincarnation"of the USSR neither now, nor in the future. This is just a phantom of the past, nonentities and speculations.
135-146 880
Abstract
The article is devoted to the scarcely explored issues of correlation between socio-political and socio-cultural phenomenon of Russian statehood and current constitutional industrial regulation of vital activities of the state-organized society. The article analyses the structure of the statehood and its elements, as well as main directions which Constitutional Law may use to influence the process of development of domestic statehood. The author emphasizes the particular need for an in-depth study of this complex of problems. The solution to the mentioned task will allow us to find optimal constitutional legal means and methods which may help adequate strengthening of the Russian statehood, as well as guidelines and goals capable to move constitutional-right science and practice to a qualitatively new level of development. The article presents an interdisciplinary analysis of the structural elements of the statehood, adapted to the modern domestic realities: organization and peculiarities of functioning of the state authorities system; a political regime of the state; the nature and the degree of relationship and inter-penetration of state power and structures of the civil society; the peculiarities of sovereignty and territorial structure of the state; a civilizational identification and self-identification of the state-organized society, a system of public «institutional matrices»; economical, climate and geographical basis of daily living activities, the structure of perception of a people, state and state power as integral social phenomena by the state-organized society; a system of socio-political customs and traditions; an ideological meaningful matrix of the society and the peculiarities of its information space
147-152 1322
Abstract
In the legal system of the USSR and Russia the fundamental system of legal norms has long been referred to as State Law, whereas Anglo-Saxon system tended to call it "Constitutional Law". The article considers the international experience in this matter. Area of law means a branch, and Constitutional Law is a body rather than a branch. That is why we consider it right to refer to Constitutional Law as the main body of law, but not its branch. This main body grounds the offshoots - the branches (Civil Law, Criminal Law, etc.), the main principles of which can be found in Constitutional Law. Strictly speaking, the concept of "State Law"covers all systems of norms regulating organization and activities of the state, i. e. besides Constitutional Law, at a branch level it also includes such norms as parliamentary law and parliamentary process (including legislative), administrative law and administrative process, judicial law and process, municipal law and process, as well as basic legal norms,regulating organization and activities of other state authorities, such as Prosecution Service (separated from court), investigative authorities (separated from prosecutorial authorities), national audit office (courts, tribunals), local government institutions, and institutions which can be governmental and private, for example notary service, advocacy, etc. One of the formal features of real or illusory democratization in Hungary, Poland, Romania, Yugoslavia and the states which emerged following its disintegration is that the respective system of legal norms has been referred to as constitutional law. Nowadays, in Eastern European former socialist countries, as well as in Mongolia, the process of development of a constitutional system and valid constitutional law has been deploying at a different speed. Today, only a few countries use the concept of "state law"; the majority define the fundamental system of their legislation as "constitutional law" regardless of whether they employ constitutional system or not.
153-163 1106
Abstract
The article analyses specifics of definitions in the constitutional law, emphasizes its fundamental significance for other branches of law, and reviews different examples of effective and ineffective wordings of legal concepts. The author believes that legal definitions, without stating particular rights and obligations, nevertheless are possible to regulate public relations. It is stated that constitutional law comprises more definitions than any other branch of law. Practically every constitutional legal act contains definitions which, as a rule, can be found in the "general part"of the law, that is outside the brackets. At the same time, the majority of definitions found in the constitutional legislation concern either all citizens of the state, or every single person. For example, such definitions as "citizenship", "referendum", "elections", etc. The most preferable model of formulation of definitions must be defined by a legislator in each specific case of creation of a normative act in the sphere of regulation of a constitutional right. It is important to chose the one, which is the most convenient and understandable for a law enforcer, as these definitions present great value for legal practice and for the regulatory system The author concludes that the federal nature of the Russian State tends to permit such diversity when formulating such definitions
164-182 627
Abstract
Analyzing peculiarities of relations of various subjects in the field of information and communication technologies, the author comes to a conclusion about the necessity of formation of a new branch of law - law of cyberspace. It is shown that modern instruments of legal regulation on a national, as well as on a supranational level, do not possess sufficient effectiveness for ordering this relationship. In this connection the importance of such means of regulation of the information and telecommunication space is being emphasized as a self-regulation and program code. Particular amendments to the Constitution of the Russian Federation aimed at greater issue of information civil rights are also proposed. The author believes that specificity of a cyberspace forces people to reconsider a traditional approach to any norm of law in the space, time and in the lap of persons, since the Internet environment deprives the concept "space" of unambiguous geographical definiteness, the concept "time" is not locked to any time zone, but the concept "lap of persons" turns to include not natural persons and legal entities, but computers and other devices participating in network interaction and being identified by computers' IP addresses and other technological parts. In some authoritarian countries a person can be connected to the network only when providing a document proving his identity, and establishment of a similar rule only leads to the slowdown in the development of a respective country, its «falling out» of the overall world process; it does not stimulate cyberspace clearance of everything contradicting to what is recognized unlawful, undue and forbidden. The cyberspace continually raises new questions relating to intellectual property protection, but the traditional legislator's responses, having been kept in a habitual logic of permissions and prohibitions, cause total and mass violation of established legal order, on the one hand, and contribute to accumulation of logical self-contradictions, on the other hand.

PREVENTION OF CRIMES

183-194 470
Abstract
The authors analyze the presence in Russian legislation of legal framework for implementation of requirements of the Convention of the Council of Europe on protection of children from sexual exploitation and from sexual abuse. The analysis is conducted in three spheres of prevention: general, criminological and victimologic. The changes in legislation that occurred after ratification of the Convention do not allow to fully fulfil its requirements. The absence of a systematic approach in implementation of provisions of the Convention led to an emergence of contradictions between domestic legislation and the Convention. The authors suggest a number of particular proposals for amendment of a provision.

THEORETICAL PROBLEMS OF BRANCHES OF LAW

195-205 461
Abstract
The article deals with the issue of possible transformation of national criminal law influenced by integrational process, integrational potential of criminal legislation as a system of domestic norms providing legal regulation of terms of incurrence of criminal responsibility and legal consequences of commitment of custom (integrational) crimes and being a basis for unification of criminal legislation Member-States EAEU.

SCIENTIFIC LIFE

206-218 1123
Abstract
The international forum annually held in China is a significant event for experts in criminal law, criminology, and criminal enforcement law not only for many countries of the Asia-Pacific- region, but Russia, as well as of the European states. It is proved by its attendance of many scientists and experts. The seventh session was formally devoted to the problems of crime and criminal law in the era of globalization; still, de facto discussion covered a wide range of matters, inter alia, based on the criminology (particular type of crime in particular), prevention of criminality, penology and penitentiaries (types and terms), punishments and social expectations, organization of serving, realization of goals of punishment, etc. ). At the same time each speaker emphasized a genetic relation of covered problems to the need of revision of a doctrine and public policy in the areas of protection of human rights. Prof V. A. Utkin (leading Russian speaker), Prof Chuchaev A. I., Prof Korobeev A. I., Prof Kvashis B. E., Prof Avdeeva V. A., Prof Avdeeva O. A., Prof Kibalnika A. G., etc. spoke on behalf of the Russian delegation at the forum.


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