|
Legal thought: history and contemporarity
|
5–22
|
The article attempts to give a history and philosophy of law analysis of the controversial evolution in forming theoretical concepts about law and at the same time examine legal practice per se. The author strives to reveal the essence of law. He reminds that with the variety of legal conceptions, the problem of creating integral legal theory without any inner contradictions remains unsolved. Legal studies are experiencing a crisis caused to some extent by the myriads of conceptions and hypotheses. Specific features of legal doctrine have been distinguished especially those of the post revolutionary Soviet and Post-Soviet periods in the Russian history. The author criticizes normative etatist interpretation of law in the USSR, substitution of jurisprudence with ideological dogmas, simplified interpretation of the essence of law in line with positivism and instrumentalism. Positivism was the only theory borrowed from the pre-revolutionary experience. The attempts to get rid f the frame were not evident for an extensive period. The author stresses that the collapse of the USSR was followed by a legal vacuum. As to the positive traits, he specifies that since the end of the 20th century it has become possible to state that the domination of the positivist approach in law the basics of which had been laid before the revolution has been overshadowed by the interest to the natural law conceptions in legal circles. Now, the views developed in the Soviet period but not complying with the official doctrine have started the development. Besides, new, authentic legal patterns are being developed. In the 21st century the freedom from etatist dogmata is remaining illusory. The phenomenon of law still needs an in-depth and complex analysis. A non critical acceptance of the Western legal culture does not cope with the task of overcoming contradictions of the modern legal theory. |
|
23–32
|
Zhalinskiy Alfred - Honoured Scientist of the RF, Head of the department of Criminal Law,National Research University Higher School of Economics, Professor, Doctor of Juridical Sciences. Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. |
|
33–51
|
The article focuses on the problem of a political obligation, which stands for the (controversial) duty of a person, located within the borders of a given state, to obey the legalcommands of that state’s authorities (commands that primarily take the form of written law). The article provides a survey and a critical analysis of the main theories of politicalobligation existing in the contemporary foreign legal doctrine. |
|
52–60
|
The publication highlights the key points associated with the analysis of 13 pilot judgments made by the European Court on Human Rights between 2004 and 2010. The sources analyzed are the rules, judgments, press releases of the Court, the Convention for the Protection of Human Rights and Fundamental Freedoms, resolutions of the Committee of Ministers as well as the works of Russian and foreign lawyers. The author attempts to design the concept of a pilot judgment which is absent in legal literature and most EU formal documents. It has been noted that the procedure of pilot judgments was codified in the Rules of the European Court only in 2011 and the Committee of Ministers is entitled to apply to court. Besides, the European Court may initiate the procedure of a pilot judgment by its own initiative. The article attempts to describe and research the causes and special legal grounds to making such a judgment. Among such causes, the author mentions the violation of rule to examine a case within a reasonable period, non-implementation of the judgments by executive power, non-payment of compensation, expropriation of property, limitation of rights for tenants, limitation of rights for the imprisoned and disciplinary procedures applied in penal institutions. The article pays attention to the fact that the absolute majority of the pilot judgments of the European Court on Human Rights has been made against Eastern Europe. However, three pilot judgments have been made against Western states including the UK, Germany and Italy. The author describes a framework of pilot judgments. The author hopes that the work will contribute to the complex concept of pilot judgments made by the European Court on Human Rights. |
Russian law: conditions, perspectives, commentaries
|
61–70
|
Omarov Said - Senior Consultant of the State Duma Committee on Constitutional laws and Statebuilding. E-mail: oma-said@yandex.ru Address Okhotniy Ryad st., 1, 103265, Moscow
The article focuses on the problems of exercising by the Constitutional Court of the Russian Federation its constitutional power to send the Address to the Federal Assembly of the Russian Federation. The sources analyzed are the norms of the RF Constitution, two versions of the Court rules, doctrinal works of Russian lawyers, materials of constitutional assembly, federal legislation, archives of the parliament. The article sets out the significance and potential of this power of the Constitutional Court as the institution of the constitutional supervision in the RF. The article features historical collisions relating to assigning the court with the power. The questions are analyzed dealing with the regularity of the submissions of the binding document to the Federal Assembly. The author focuses on the drawbacks of the legal regulation of the Constitutional Court activity, .in particular the dispositive way of codifying this power of the RF Constitution and its consequences. He notices that the negative influence of the political environment on the decisions of the members of the Constitutional Court which has been fixed in interpretation of the power as a right but not obligation. Though the court rules state the opposite, many judges state that every decision of the Court is a mini address to the Federal Assembly. The article shows that for the two past decades the Court has sent the address only once - in 1993. Besides, its form and content resembled a regular report. In turn, the deputies of the legislative body having received the address on the key subject of the situation with constitutional law allocated limited time on debates. The article applies a method of comparative analysis which has allowed the author to conclude that the Presidential address to the Federal Assembly has never had any similar issues as it is considered more important. Other soft spots of the legal regulation of the Constitutional Court addresses have been revealed. |
|
71–76
|
This article attempts to study the fundamental problems in implementing (realization) the principle of transparency (openness) budgets of the Russian Federation. The sources analyzed in the article are the RF budgetary code, federal laws, normative acts of the Finance Ministry as well as text books and Internet resources. The author seeks to trace the implementation of the legal mechanism of this principle in terms of results-oriented fiscal policy as well as to compare it with foreign ways and approaches of ensuring the principle of transparency (openness) of budgets. The article shows the connection between the transparency of budgets and democratic principles, a clear distribution of functions among state bodies, reliability, efficiency and comparability of the data on profits and expenses of the state, a stable interest of the public in Russia and abroad to the involvement in the budgetary process. The article stresses that the transparency relates not only to budgets and the reports on their implementation but the drafts of budgetary laws and state procurement. The transparency principle has exceptions in Russia, which is shown in the example of the federal budget classified items. The foreign experience of the transparent administration of public finances has been studied on the example of Porto Alegre municipality (Brazil). The positive results of the administration were seen in the eradication ofinappropriate use of funds, increase in the confidence of ordinary citizens to public administration. Besides, collection of tax became more consistent. The publication shows the serious role played by the codes of professional behavior to develop the budget transparency principle. However, the author expresses concern that the transparency principle was not observed when these codes were being developed having resulted from the absence of their public discussion. |
|
77–90
|
The article discusses the problems associated with providing public access to court decisions. The research has been carried out on the materials of the Russian Federation. The sources are the RF Constitution, codes of various legal areas such as criminal code, codes of criminal procedure, of civil procedure, of arbitration procedure, federal legislative acts on mass media and personal data, commentaries to the legislation, normative acts of the Supreme, Constitutional and Supreme Arbitration Courts of the RF and analytical publications of some Russian legal academics. The author develops his approach to the problem on the basis of the principle of judicial procedure transparency. The publication describes and assesses restricted and wider interpretations of the principle. The author supports the second type of the interpretations. The article analyzes the having existed until 2010 and existing at the moment ways to access the court acts. It has been found that the access to the judicial acts issued after 2010 has become easier. Among the soft spots of the current access, the following points have been mentioned, in particular: a larger number of limitations and prohibitions as to the access because of wider interpretations of the concept of secret by courts and legislators, state security, privacy and family life. The concept cases involving state security is too abstract, which provides judges with a very wide interpretation. The access is forbidden to the cases involving rights and legal interests of adults. The fees for using commercial data bases are high, which is another bar to the information. The judicial materials are published at the discretion of judges and secretariat. In the opinion of the author, additional changes are required to the legislation. |
|
91–105
|
The publication attempts to make up new approaches to the concept of salary as an economic and legal category and offers practical solutions. The sources analyzed are the norms of Soviet and post Soviet labour law, the decisions of arbitration courts, RF Labour Code with the commentaries for the period 1920 – 2000s, books of Russian specialists in law and economic relations. Applying as the subject matter to norms of Russian and international labour law, the author studies the concept and of salary. The salary is assessed in the article in terms of three scientific disciplines, i.e. law, management and political economy. The author describes modern functions of the salary and its social aspects, analyzes the balance between common income received by the employee and his salary. The article provides data pointing to the percentage of GNP allocated on the salary. The article characterizes structural elements of salaries. Besides, the article reveals legal nature and special character of compensatory and stimulating payments, determines their role in the total income received by the employee. The author criticizes the principle of two approaches to the term salary and combining it with the category of labour compensation. The author makes critical comments on the lack in the Russian legislation and Convention 95 of the International Labour Organization a clear division between wages and various guaranteed payments. To correct this circumstance, the article recommends improving the conceptual framework of legal norms and removing the provisions of article 129 of the RF Labour code as they relate to the institution of guarantees and compensatory payments but not the salary in its understanding as a term. |
|
106–111
|
Panov Alexey - postgraduate student, Russian Academy of Justice, E-mail: alex@panov.in Address: Novocheryomushkinskaya St., 69, bldg.A, 117418, Moscow, Russia This article deals with specific current problems of efficiency and equity of the administrative liability. Among the issues to be discussed, there are the problems of lawful representative of a legal person, limitations on bringing to administrative liability. These issues are still pending for legislation procedure and worth being appropriately studied. In particular, the author notices that the categories of equity and efficiency are inseparable in administrative liability and equity is repeatedly regarded in the article as a criterion of efficiency of the administrative liability. The author shows that as restored social equity is one of the common aims of legal liability, thus the application of a fair punishment serves as a criterion for an efficient administrative liability. Solving the problems shown in the article may serve as an efficient way of achieving efficiency and equity. Besides an extensive area of bringing to responsibility, the author specifies some institutions to secure equity and efficiency. One of them is a controversial institution of the limitation of bringing to administrative responsibility. The paper shows that on the one hand limitation is a ground to escape administrative responsibility i.e. its individualization depending on the circumstances of committing administrative offence, on the other hand, differentiating the limitations depending on the object of security incident promotes to differentiating punishment under this criterion. The author concludes that this differentiation does not promote to a significant efficiency of administrative and jurisdictional bodies as at the distance of time collecting evidence and bringing the delinquent to responsibility will be cumbersome. The author proposes to amend article 25.4 of Administrative Offences Code of the Russian Federation aimed at specifying the authorized representatives of the legal person. |
|
112–119
|
The article represents a detailed characteristics of the recent changes in the legal regulation of relation arising due to the transportation of goods by vehicles in the RF. The sources of the analysis are the RF Civil Code, federal legislative acts, commentaries thereto, research works of Russian specialists in civil law. The central place in the article is taken by the analysis of the advantages and disadvantages of the Charter of motor transport and urban above-ground electric transport. The advantage is that the document provides for establishing legal relations between the transport and customers immediately after filing the submission or order to transport goods but not from the moment of transferring the cargo and accepting it by the customer as it used to be set in the past. Some norms of the previous legislation were abolished in particular those under which the burden of proof liedon the consignee or consignor. However, the author criticizes the discrepancies revealed by him in the norms of the new charter and the RF Civil code. He stresses that the charter applies incorrectly the principles of chartering contracts to transporting goods by car transport. The article argues that it was erroneous to combine the contract on presenting cargo with the charter contract though these are two separate agreements and one of them precedes the other. Besides, part of the norms of the Charter contradicts the norms of other transportation charters and codes. In particular, the guilt has been formulated so that any circumstances can justify its absence. The charter does not fix the balance between the damages brought to the client when transporting goods and the fine (damages) subject to charging from the carrier. The norms of the charter regulating the responsibility of the carrier for non-protecting cargo are wordy and duplicate several categories. |
|
120–132
|
Nagornaya Irina - Postgraduate student, Department of Criminal Law, Law Faculty,National Research University Higher School of Economics. E-mail: i_nagorn@mail.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The article concerns theoretical and practical problems of the crimes against health and life committed in the course of rendering medical services. The author makes a conclusion that the characteristics of crimes committed in this area require preliminary examination of medical services and activity which are distinguished and studied in this article. The article studies the problems of the application of recommendations of the general part of RF Criminal code as to crimes against life and health committed in medicine including article 42 Implementation of order or instruction, concerning deeds committed due to negligence. The analysis is made on causal relations between a deed and its criminal consequences, difference between a deed and failure to act. Some crimes are studied inter alia infliction of death by negligence due to improper performance of professional duties, failure to assist sick person, illegal performance of abortion. Having examined court rulings, the author reveals some bottlenecks of legal regulation and challenges of legal practice related to them. The focus is made on separating objective corpus delicti subject to art. 109 of the RF Criminal Code Infliction of Death by Negligence and art. 118 inflicting serious harm to health due to negligence and failure to assist sick person . The analysis also covers the obligation of a medical employee to render assistance to a sick person. The analysis includes illegal abortion subject to legal norms and termination of pregnancy by a person without higher medical education with the necessary specialization. |
|
133–143
|
The author analyses the questions connected with the development of the modeling method in forensic science. Besides, the study deals with the main types of models used at the different stages of the forensic science development. The forensic model is defined as an artificial system that reproduces the replaced object with a certain degree of similarity. The main directions of the research in forensic science are considered in terms of the modeling method. The author demonstrates the place and importance of ideal models, stressing that any ideal model can be expressed in a material form such as scheme, drawing, formula, design or description. The article argues ideal models allow getting an idea of future actions of the subjects of investigation. An important feature of these models is their characteristics to act as an analogue of unknown circumstances of a crime. The article features the specifics of modeling criminal activity – the advantages and disadvantages. A proposal is introduced to unify these sciences of the criminal law cycle to develop a complex description of crimes in the form of describing and systematizing inherent traits received during forensic, operational and other investigations that are made within the framework of these sciences. At the same time, the following conclusion is made. The modeling process of criminal activities should be based not on the static enumeration of all possible elements of this activity, but on the dynamic approach of their forming. Besides, the specifics of forensic modeling of criminal activities should be defined by studying the traces – material and ideal left by the criminal. The conclusion has been made that forming forensic models of criminal activities should be done on the basis of “systematic-acting” approach. |
|
144–153
|
The article considers the specifics of legal regulation within the framework of preventionactivity, protecting and restoring forests on the example of the Russian Federation and thePeople’s Republic of China as well as the bilateral cooperation in the sphere in question. |
Law in the modern world
|
154–161
|
The article analyzes a topical for the modern labour law problem of flexicurity policy.Based on the papers of foreign and Russian legal academics the author investigates the nature of flexicurity, formulates its features and makes up its definition. The article also studies the current situation with the flexicurity policy in the Republic of Belarus and includes a comparative analysis with the legislation of the Russian Federation. |
|
162–166
|
The article is devoted to identifying the role of state and the meaning of legal theory analysis bases for the problem of state and law of the transition period to assess the currentsocial and political situation in Kyrgyzstan and the prospects of its development. In particular, on the basis of using specified in the Russian legal science signs and features of the transition period state and law the conclusions are made on the necessity in developing an efficient and reasonable legal policy of state. The article stresses that the onlyway to achieve material progress in a peaceful and civilized manner is to regulate properly at state and law levels the reforms to be implemented in the main areas of welfare. |
|
167–181
|
Valeria Lebed’ (Efremova) - Senior Researcher, Institute of State and Law, Russian Academy of Sciences, PhD (Law), Institute ofState and Law, Russian Academy of Sciences. E-mail: vefremova@bk.ru Address: Institute of State and Law, 119019 Moscow,Znamenka, 10, Russian Federation. |
Discussion club
|
182–188
|
This review incorporates the abstracts of the participants who spoke at the scientific workshop on legal persons in public law held by the Law Faculty Department of Entrepreneurial Law of the National Research University Higher School of Economics held April 29, 2011. The scientific workshop participants stressed the relevance and topicality of the theme discussed at the workshop, traced the ways in developing the law as to shaping legal personality in public law. In particular, the participants touched upon the problems of dividing law into private and public including historical reasons and attempted to make up the criterion of publicity of legal entities and revealing the signs of legal entities in public law. At the workshop, the participants attempted to specify the niche of legal entities within the RF legal entity system, explain the necessity to settle their status by the RF civil code or a special law on such entities. The participants of the seminar showed some examples of legal entities meeting the requirements of a legal entity in public law and analyzed the status of the state corporation Deposit Insurance Agency. The conclusions and proposals made at the seminar were based on the foreign experience of designing the systems of legal entities and the experience of their functioning. In particular, French legal system was analyzed as the case practice there managed to establish the principles of legal entities of public law long ago. Certain postulates of Anglo-American corporate law were expressed, in particular the absence of the division of law into private and public and recognizing only one form of legal entity, i.e. the corporation, and an ambiguous term public function. The participants of the seminar expressed a variety of approaches to this institution but agreed on the necessity to discuss it. |
|