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Vol 73, No 1 (2020)
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PUBLIC LAW / JUS PUBLICUM

9-27 820
Abstract

The paper investigates the features of government control over public property based on hierarchical subordination of the participants of the property regulation.

The paper deals with the property prerogatives of federal ministries, federal services and federal agencies based on the powers of the owner of items of federal immovable and movable property transferred to the competence of federal unitary and state enterprises under the authority of economic management and operational management. The author justifies the public dominance of the powers to use and dispose of property assigned to the control of federal unitary and state enterprises.

Regulation based on the right of operational management is the main property power of the Federal Ministry as opposed to the right of economic management that always operates as its additional public property power, usually mediated by the function of normative regulation. The power of property regulation assigned to the competence of federal ministries does not affect exclusively the management of public immovable and movable property under the authority of the federal and regional executive bodies, but also the competence of administrative bodies of local government to administer municipal property. Unlike the property powers of federal ministries usually mediated by their exclusive regulatory functions, federal services in the areas of law enforcement are endowed with significant mandatory powers providing for the extrajudicial seizure of immovable property from the rightful owner (Federal Security Service, Rosgvardia, Federal Customs Service) who is an offender or a person suspected of committing an offense. In cases under consideration, exercising authority entails termination of the right of ownership in full or the establishment of extrajudicial legal restrictions in relation to the use and disposal of items of non-public immovable property.

Municipal property regulation is conditioned solely in the context of whether it meats the needs of local government and, unlike state property regulation, does not pursue the purpose of ensuring national interests in the areas of economy, industry, administrative-political activity. The author has investigated the features of municipal unitary and state enterprises regulation on the basis of property powers transferred to them by an executive administrative municipal body. The paper has paid considerable attention to the delegation of state property powers to local governments, as well as ensuring financial self-sufficiency of municipalities.

Municipal property regulation, based on the powers of economic management and operational management, is predetermined solely by hierarchical subordination of public entities property relations and is determined by the requirements of administrative legislation.

Property regulation in federal cities endowed with the powers of the constituent entity of the Federation is based on the dominance of the state regulation and limitation of the powers of municipal bodies in terms of ownership, use and disposal of urban immovable property, movable property, financial assets.

28-42 677
Abstract

Quite a large number of papers in contemporary legal literature are devoted to documents of strategic planning. The recent adoption of numerous concepts, strategies, programmes, and plans, including those in the environmental field, requires not only scientifically sound development, harmonization and approval of planned indicators and benchmarks envisaged in those documents but also their accomplishment. In this regard, the paper highlights the necessity of research and improvement of strategizing as a management function that not only fixes final goals in strategic documents but also provides for the mechanism for their achievement, including monitoring of the planned indicators. Strategising acquires particular importance in the ecological area characterized by instability, deterioration of the quality of the environment under the influence of economic and other activities, its negative impact on the health of the population.

The paper considers the issues of strategizing as an independent process of an organizing ecologic and legal activity and the mechanism of ensuring environmental rights of citizens enshrined in the Constitution. The author has shown the influence of strategizing on efficiency of the state and municipal regulation in the area of environmental protection, sustainable use of natural resources and environmental safety.

The paper justifies the necessity of separating ecological strategizing as an independent type of strategizing and institutionalizing of such relations in environmental law. The paper identifies the problems of strategizing in the field of environmental development, including the procedure of preparation, coordination and adoption of documents of strategic planning, development of criteria and planning indicators, monitoring of their achievement, the activities of relevant authorities and their interaction. The paper has determined the problems and mandatory conditions for the creation of an effective mechanism of ecological strategizing including its information support.

As the result of the study, the author suggests new approaches to the strategizing in the field of environmental development and its improvement.

43-58 2820
Abstract

The article discusses constitutional symbolism in the theory and practice of Russian constitutionalism, the problem of constitutional modernization in the context of the Russian state and legal tradition, the nature and legal forms of the constituent power, the constitutional status and the generative possibilities of the constituent power as constituents. The paper examines scientific approaches to understanding constitutional modernization in contemporary Russian jurisprudence, the meaning of constitutional symbolism and constitution as legal, political and moral communication in modern society. Particular attention is paid to the analysis of the relationship between the constitutional process and the constitutional power from the standpoint of cognitive constitutionalism and historical rationality. The author has determined the problem zones of legal registration and implemetation of powers of the constituent power in the context of the Russian constitutional development. The study has been carried out on the basis of formal-legal, concrete historical and comparative legal methods of analysis, the method of constitutional design and legal hermeneutics. The author suggests the following conclusions: 1) It is necessary to rethink the range of subjects of the right to amend and revise the Constitution in the Russian constitutional law that reflects the constitutional tradition (in comparative and historical contexts) outlined in 18th-19th centuries rather than modern capabilities of the information society and e-government (e-ruling); 2) The importance and efficiency of democratic involvement increases and requires revision of the thesis that the head of state (in the history of Russia — the monarch, emperor, president) is the only authoritative and constitutionally significant “guardian” of the Constitution rigidity and the main political and legal route of its transformation and change; 3) Legal formalization and use of legal procedures of the constitutional will and expression of the will of citizens of the country in the process of elaboration, discussion, adoption and introduction of amendments to the Constitution of the Russian Federation (current), and in the future amount to the development and adoption of the draft new Constitution of the country; 4) In the context of Russia’s intent to join the 4th Industrial Revolution and the development of institutions of information society (including in the field of electoral procedures and the formation of information and digital constitutionalism), it is necessary to create a constitutional sector of the Internet supported by the State at the federal and regional levels for the use of information technologies and institutions of digital constitutionalism in the process of determining citizens’ opinion on opportunities, prospects, content of amendments to the Constitution of the Russian Federation, their nation-wide discussion in the Internat.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

59-69 751
Abstract

The paper investigates methodological, organizational and practical aspects of the legal effect on corruption during the period of formation and development of the national statehood. The novelty of the subject under consideration lies in the issue associated with: 1) the disclosure of the causes and conditions of corruption as a socially negative phenomenon at certain stages of the state and legal development; 2) identification of key directions of the legal policy in the field of anti-corruption predetermined by socio-economic and political transformations. In the course of achieving the goal of the study, the author has applied special legal methods of cognition contributing to the retrospective analysis of the legal regulation of legal liability for corruption-related offenses. As the result of the study, the paper shows the legal nature of corruption, its essential specificities and features as a socially negative phenomenon. The authors have identified peculiarities of anti-corruption measures undertaken during the period of the Russian statehood under review. Also, they have determined the tendencies in the legal regulation of corruption-related crimes and defined the features of the mechanism of the legal regulation of legal responsibility for corruption. The authors have expressed their opinion about the absence of categorical and legal assessment of the concept of corruption in the domestic legislation of the period under review that would predetermine recognition of measures having effect under criminal law as a strategic resource of counteracting corruption-related offenses. The paper draws conclusions about the factors inspiring the legislative regulation of corruption-related crimes and about the specifics of the implementation of punishment and other measures under criminal law.

70-87 814
Abstract
The paper substantiates the necessity and possibility of developing the concept of forming up criminal proceedings that provide access to justice in the conditions of digital technologies development. When developing the concept, the following methods were used: general scientific, interdisciplinary, that is, common to criminal procedure science and information science (for example, mathematical method, and modeling) and specific methods for each of these sciences. The interdisciplinary nature of the study required the use of synergetic, phenomenological, sociological, activity, and normative-value approaches. The main directions of the concept are substantiated as follows: in part of digitalization of criminal proceedings — design and implementation of a state automated system "Access to justice", which has no analogues in the Russian Federation; the creation of a common digital platform for electronic interaction for leaders at all levels of law enforcement and other state bodies, judges, prosecutors, investigators, interrogating officers among themselves and with citizens while ensuring the all members are digitally equal; in terms of paradigm shift of the initial phase of criminal proceedings — a new approach to pre-trial proceedings as a public service to ensure citizens access to justice; provision to participants, having no authority, with the right to address in court with petitions for the deposition of evidence, the adoption of measures to secure a civil claim, etc.; the transformation of the preliminary judicial control into an organizationally independent judicial body that ensures access to justice through considering appeals at the initial stage of criminal proceedings, including remotely. It is shown how the results obtained can be used in further scientific research, legislative and law enforcement activities.

THEORY OF LAW / THEORIA LEX

88-117 585
Abstract

The law exists in the form of institutions and in the form of representations of institutions, since the representation of something (phenomenon) has a conceptual dimension in the representation of something (concept). Representations of law and representations of law are two aspects of the expression and manifestation of the general legal reality. This, in fact, leads to a fundamental dilemma in determining the subject of legal science. This is the science of law or the science of legal science. Given that the concept of law is a theory of law developed into a system of definitions, the practical language of law finds itself in the theoretical language of jurisprudence, and vice versa. The languages in which the law operates, and the languages in which the phenomenon of law is interpreted, constitute the general object and subject of jurisprudence.

Jurisprudence is a conceptual part of legal reality, both an object and a subject of legal science. The evolution of jurisprudence in the cultural-historical logic of changes in its subject and methods is the basis for changes in its disciplinary structure and connections in the general system of social and political sciences. Each cultural and historical epoch of the existence of law corresponds to its own grammar of law and its own epistemology of law, that is, its own analytical language and disciplinary format of legal knowledge. The law exists in the definitions of its concept. The concept of law has both an ontological and epistemological status. One thinks of law because it exists, and one understands the law because it is defined. Each tradition of understanding the law can be conceptually seen in the phenomenon of law that other traditions of legal understanding do not see or do not notice. The history of the development of the concept of law (conceptualization of law) contains the history of the development of legal institutions (institutionalization of law). Both components of legal reality — objective and subjective grounds and conditions for the emergence and development of the phenomenon of law live in the framework definitions of their social culture, its language and discourse. That is, they live in historical forms of awareness and understanding of one’s own law — from the law indicated in rituals, myths, signs and symbols, to the law indicated in canonical texts, doctrines and concepts; from the law of disciplinary society to the law of network communities; from the law of political domination and bureaucratic management to the law of civil communications and network agreements.

118-131 5522
Abstract

The relationship of the legal order with the categories "object of legal regulation" and "subject of legal regulation" has not been studied comprehensively enough. The legal literature has developed an approach to defining the structure of law and order as a set of public relations regulated by law. This approach seems limited, since it inevitably leads to the identification of the structure of the rule of law and the subject of legal regulation. Other aspects of the interaction of law and order with the categories "object of legal regulation" and "subject of legal regulation" are yet to be studied.

The multi-aspect nature of the "law and order" category necessitates an integrated approach to its structure, for the analysis of the categories "object of legal regulation" and "subject of legal regulation" are of great methodological importance. The peculiarities of the manifestation of order in the legal sphere allow us to distinguish three relatively independent sides of a single concept: law and order as a "norm", "process" and "result" of legal life.

The study of static and dynamic structures of law and order is impossible without analyzing the categories "object of legal regulation" and "subject of legal regulation". These categories are considered as the most important components of the structural organization of law and order. In this capacity, they allow you to see the internal logic and regularities of the manifestation of order in the system of legal phenomena such as sources of law, the system of law, the system of legislation, legal relations and legal activity.

The application of the categories "object of legal regulation" and "subject of legal regulation" allows you to create a comprehensive and complete picture of the structure of law and order. However, it seems that legal science should pay more attention to these categories. The established traditional and dogmatic views need a new system update. The development of a private theory of the object of legal regulation and the subject of legal regulation will make it possible to achieve significant results in understanding other fundamental categories, in particular the legal order.

COMPARATIVE STUDIES / COMPARATIVE STUDIES

132-144 674
Abstract
In the 1970s and 1980s, a crisis of the judicial system (litigation explosion) broke out in the United States. It manifested itself in a multiple increase in the number of appeals to the courts, the duration of cases, and the legal expenses of the parties. Under the pressure of the idea of reducing the burden on the judicial system, the US civil procedure undergone changes. This paper is a part of a larger study of the nature of these transformations. Thus, the author analyzes the causes and factors that contributed to the development of this crisis. It is established that they are largely related to the sphere of civil procedure. In particular, these are features of the distribution of legal costs between the parties to the dispute — the so-called American rule, which does not impose the legal costs of the opponent on the losing party and therefore does not prevent the presentation of obviously unfounded claims (as in the case of the "loser pays" rule). The possibility of a contingency fee contract between the lawyer and the plaintiff, combined with other factors, led to the emergence of a huge industry based on damages, including class actions. The 1938 Federal Rules of Civil Procedure significantly simplified the requirements for a claim, which also contributed to an increase in the number of appeals. Abuse by the parties during the evidence disclosure procedure became a significant problem, since it is during this procedure that the parties incur the maximum costs. Identifying the factors that contributed to the development of the crisis will allow us to better understand the essence of the changes that the US civil procedure has undergone in recent decades.

IIMPROVEMENT OF LEGISLATION / NOVUS LEX

145-159 957
Abstract

Countering cyber threats poses new challenges for information security specialists, and requires developing legal protection mechanisms that will allow them to respond to criminal threats in the digital environment ahead of time. The path chosen by the national legislator to counteract crimes in the information sphere suffers from a delay, a gap and an inability to cover all possible socially dangerous acts and their consequences. The paper analyzes the spheres of life that innovative technologies affect or will have the greatest impact on, thus pursuing a propaedeutic goal — creating the necessary theoretical foundation for further consideration of special criminal law issues. These areas include social networks, e-commerce, digital medicine, sharing economy, industry 4.0.

The authors conclude that the digitalization of many spheres of life is accompanied by a positive effect, but also carries new threats and risks that are not reflected in criminal legislation. In such a situation, it is necessary to review the criminal law policy and develop a unified approach.

160-175 916
Abstract
In the paper, the author examines the legal mechanism of social partnership in the States of the Eurasian Economic Union for compliance with international labor standards. The status of ratification of the ILO conventions in the field of social partnership in the EAEU Member States is defined, and a brief description of international standards in the exercise of the right to freedom of association, the institution of employee representation, and the implementation of forms of social partnership is given. The author concludes that some approaches to the legislative regulation of collective labor relations differ from international standards, and in some cases contradict them. Based on the analysis of labor legislation, gaps and conflicts in the regulation of collective bargaining procedures, mutual consultations and exchange of information, as well as ensuring the right to freedom of association and representation of employees in social partnership are identified. There is no uniformity in the definition and regulation of forms of social partnership in the EAEU States. The legislation of the EAEU States is characterized by heterogeneous conditions for conducting consultations: in some countries, this form of social partnership is implemented through the mechanism of coordination of important decisions and acts of the employer (Belarus, Kyrgyzstan) with employees’ representatives, in others through the mechanism of taking into account the opinion of the representative body of employees (Kazakhstan, Russia). In Armenia, the labor legislation does not provide for a counselling mechanism. The national legislation of a number of States contains rules that violate the right to freedom of association. The Committee of experts on the application of ILO conventions and recommendations has repeatedly noted this in its reports and recommendations. The author formulates recommendations for improving the legal framework of social partnership in the EAEU States in order to implement international obligations. In particular, it is recommended that the legislation of the EAEU States provide for a more systematic and clear mechanism for regular exchange of information between employees and the employer and their representatives as an independent form of social partnership.


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