Annotations № 4 / 2011
PROBLEMS OF JURIDICAL PROCESS
Salikov M. S. (Yekaterinburg) Novels of constitutional judicial process
Novels of legislative regulation of constitutional judicial process are analyzed. New proceedings of disposition of a case without hearings in Constitutional Court of the RF, correction of continuity of judicial session principle, refusal from disposition of a case in chambers, transformation of positive repudiative definitions in decisions etc. are described.
Key words: constitutional judicial process, disposition of a case without hearings, rules of procedure of Constitutional Court of the RF, decisions of Constitutional Court of the RF
Varga С. (Hungary, Budapest) Law, legal process and the judicial mind
“Judicial mind” in operation, considered differently in Civil Law and in Common Law, is taken as a „black-box” with the „magic” role played by legal technicalities, in which manipulation with facts and rules transubstantiates problem solving into justification.
Key words: normativism, legal logic, law as rule / as culture, ontology of law, legal technique
Fedorova M. Yu. (Saint-Petersburg) Problem of the property right to social payments in decisions of the European Court of Human Rights and the Constitutional Court of Russian Federation
The property right to social payments in the treatment of the European Court of Human Rights and the Constitutional Court of the RF is analyzed. The conclusion about unity of conceptual approaches of the specified judicial bodies to the given problem and also about the necessity of law-enforcement procedures improvement in social security system and increasing of judicial protection of citizen’s social rights mechanism efficiency is made.
Key words: social payments, the property right, the European Court of Human Rights, the Constitutional Court of the Russian Federation
Commission on legislative assumptions under President of the Russian Federation (1993 – 1994 yy.)
Professor M. A. Mituykov (Moscow) and docent A. V. Bezrukov (Krasnoyarsk) conversation about creation and work of Commission on legislative assumptions under President of the Russian Federation.
Key words: Constitution, President, Commission on legislative assumptions
THEORY OF LAW AND STATE
Vershinina S. I. (Tol’yatti) About interrelation of protective norms and norms of coercion
The article explores the legal nature, scope and structure of the protective rules and standards and their relationship. On the basis of analysis of coercion norms the coercing state institute system is desribed.
Key words: protective norm, norm enforcement structure, regulatory norm enforcement rule
COMPARATIVE JURISPRUDENCE
Li Guoqiang (Beijing, China) Brief analysis of the eighth amendment to Criminal Code of PRC canceling of death sentence as punitive measure for 13 types of crimes
Reasons and purport of canceling of death sentence as punitive measure for 13 types of economic crimes of nonviolent character are analyzed. Attitude towards modern condition of punitive measures system in PRC taking in account international tendency of canceling and strict limitation of death sentence use is described. The author considers that death sentence canceling for such types of crimes is an important measure of supremacy of law development, represents embodiment of respect for right to life, reveals humanism and criminal law of socialism with Chinese specificity and proves big practical importance of death sentence reform development in China.
Key words: eighth amendment to Criminal Code of PRC, economic crime, nonviolent crime, death sentence as punitive measure, death sentence canceling
Kirichenko K. A. (Novosibirsk) The models of legal regulation of relations forming in application of assisted reproductive methods: an analysis of world practice
The article is devoted to the consideration of four models of legal regulation of relations forming in application of assisted reproductive technologies. The Australian, American, European and Post-Soviet models are singled out. The specificity of each model is revealed and explained.
Key words: assisted reproductive technologies, reproductive rights, family law, legal families
Fedotov D. V. (Yekaterinburg) The legal regulation of relationships on the subject of intangible property: foreign experience
The article is devoted to various methods of normative regulation of legal relationships on the subject of intangible property on example of Netherland’s, Germany’s and Latvia’s civil law. The author’s classification of these methods is suggested. The reasonability of using the property’s rules in relation to intangible property is substantiated.
Key words: intangible property, right of property, comparative jurisprudence
INTERNATIONAL LAW
Tymchenko L. D. (Ukraine, Irpen’), Kononenko V. P. (Ukraine, Xar’kov) Genesis and development of the principle of respect for human rights in international and domestic law
The article deals with the history of the principle of respect for human rights in international and domestic law. It is demonstrated that on the contrary of a wide spread opinion about leadership of western civilization in formation of modern concept of human rights, this concept got earlier and enough effective development in Russia. ECHR is the main element of the control mechanism of the 1950 European Convention on Human Rights. Some aspects of the activities of ECHR are critically analyzed in the article.
Key words: human rights, control mechanism, the Moscovite Law Code (Ulozhenie), European Court of Human Rights
Bayl’dinov E. T. (Kazakhstan, Semipalatinsk) Basic conceptions of international law and problem of sustainability of the global development
The international law basic conceptions are considered in the article. The author concludes that the sustainability of the global development could be ensured only by the international legal order which is based on the integrative approach to the understanding of the essence of the international law.
Key words: conceptions, international law, world legal order, classical thought, positivism, realism, liberalism, institutionalism, sociological jurisprudence
Guzeeva O. S., Skuratova A. Yu. (Moscow) Problem of qualification of enforced disappearance in international law and the Russian criminal law
This article is devoted to the problems of qualification of enforced disappearance in international law and Russian criminal law. The article is focused on qualification of enforced disappearance as an international crime; on the elements of criminal act. There is an examination of a court practice – including European Court of Human Rights and a practice of state courts.
Key words: enforced disappearance; qualification; crimes against humanity; abduction; UN Convention; Russian Criminal code
CRIMINAL LAW AND PROCESS
Davletov A. A., Barabash A. S. (Yekaterinburg) The place and the role of publicity in criminal proceedings
The publicity problematics in criminal legal proceedings is investigated. Marking scale of the given category the authors consider publicity as a method of criminally-remedial activity. Publicity takes a leading place in criminal trial structure, essentially influencing its other components.
Key words: publicity, criminal action invariants, static structure of criminal legal proceedings, target, problem criminal lawsuit, material true, a method of criminally-lawsuit activity, the form, principles of criminal legal proceedings
Zelenina O. A. (Saint-Petersburg) On the issue of the legal status of the participant of the criminal proceedings
The article analyzes the types of the legal status of the participants of the criminal proceedings and the reason of their possible differentiation.
Key words: participant of the criminal proceedings, legal status, legal objective, legal means, general legal (constitutional) status, industrial legal status, international legal status
Kozachenko E. B. (Yekaterinburg) The notion «helpless state» in doctrinal and law enforcement interpretations
The article analyzes the contents and functions of the concept of a helpless state in doctrinal and enforcement interpretations.
Key words: helpless state, doctrinal interpretations, enforcement treatment, crime victim
QUESTIONS OF INVESTIGATION AND OPERATIVE RESEARCH ACTIVITY
Pantyukhina G. A., Zayko T. M., Bezrukov Yu. V. (Yekaterinburg) Organisational-tactical features of appointment and carrying out of examinations on crimes committed by organized criminal groups and communities
The questions of organisational-tactical features of appointment and carrying out of examinations on crimes committed by organized criminal groups and communities are considered in the article. The necessity of special knowledge usage in the lawful state is caused by achievement of scientific and technical progress which is followed by ways of commitment and concealment crime complication. The same achievements open new technical possibilities for correct criminal case disclosing by the subjects of criminal jurisdiction during the process of case circumstances establishment.
Key words: expertise, organized criminal groups, crime, expert
Bartsitskaya A. A. (Ukraine, Odessa) The essence of the technological aspect by criminalistics’ tactic
The article researches the prerequisites of the notion «technology» in the system of tactical developments. The spheres of its contemporary understanding have been researched in criminalistics science. The essence of technological element by criminalistics’ tactic is defined.
Key words: technology, technological aspect, criminal activity, criminalistics tactic
CIVIL LAW AND PROCESS
Mankovskiy I. A. (Belarus, Minsk) Acquisitive limitation in the system of property acquisition grounds
In article one of the initial bases of buying of the property acquisition on prescription of possession, and also the necessary legal conditions which presence of set allows subjects of civil law to apply named the bases of buying of the property are investigated. The named civil law institute is analyzed in comparison with civil law institute of diligent acquisition. Such approach to research is caused by mixture in a science of civil law of two named institutes, that at times leads to the conclusions mismatching public relations actually developing in given sphere. The developed situation specifies in necessity of basic differentiation of two institutes of civil law, first of all at doctrine level.
Key words: property, civil law institute, diligent acquisition, property acquisition
Gorovenko V. V. (Tyumen) Unfair behaviour and misuse of right: relation between the concepts
This article discusses relations between the concepts “abuse of right” and “unconscionable conduct”. The author investigates the etymological meaning of the term “abuse of right”, as well as the essence of the phenomenon. Criteria of unfair realisation of subjective right are shown. The conclusion about the need to consolidate the law of species diversity of this form of misconduct is made.
Key words: subjective right, the abuse of law, the criteria for misconduct, the types of abuse of a subjective right
Aleshina O. V. (Yekaterinburg) The form of marriage: essence of legal regulation
The present article represents the analysis of the form of a in the Russian Federation concerning legal essence The author describes preconditions of forming, legal peculiarities of form of marriage, suggests modifications of the present form of marriage.
Key words: the form marriage, the civil form of a marriage, the precondition of an establishment of the civil form of a marriage, legal essence of the form of a marriage
Bayandin D. I. (Yekaterinburg) The right of a main company to give an associate company binding instructions
The article dwells upon the right of a main company to give an associate company binding instructions. Author analyzes academician opinions towards the possibility of limitation of independence of the associate company during the fulfillment of instructions given by the main company. Author shows that this independence should not be limited and introduces possible procedure of realization of the binding instructions right.
Key words: main company, associate company, binding instructions, independence, economical dependency, control, liability
LEGAL ASPECTS OF ECOLOGY
Kruglov V. V., Gayevskaya E. Yu. (Yekaterinburg) On effectiveness of criminal responsibility measures in the sphere of environmental protection, use and protection of natural resources in the RF
The general review of legislation and law enforcement practice in the sphere of responsibility first and foremost criminal for environmental legislation violation is given. The authors disclose the reasons of low effectiveness of criminal responsibility measures and formulate suggestions on legislation in the sphere of environmental protection, use and protection of natural resources improvement.
Key words: criminal responsibility, effectiveness, environmental protection, control
Glibko O. Ya. (Petrozavodsk), Lukin A. A. (Apatity) Legal and methodical bases of estimation of the ecological damage in the Russian Federation
The article is devoted to research of the legal institute of an estimation and compensation of a damage to environment. International and the Russian legislation on an ecological damage, an order and procedure, forms and ways of compensation of harm to environment, standard-methodical bases of an estimation of a damage are considered. Ordering and the analysis of design procedures of a damage is made, their basic lacks are revealed. Ways of optimization of the standard-legal and methodical maintenance of an estimation institute and compensation of damage to environment are offered.
Key words: the legislation, ecological damage, technique, estimation, optimization
ECONOMY AND LAW
Peshkova Kh. V. (Voronezh) The notion and the nature of relations developing in connection with budget construction functioning
The article describes budget relations a special group of financial relations, budget construction as a special characteristic of state sovereignty. The author examines and analyzes the nature of regulation of budget relations.
Key words: budget law, budget construction, budget legal relation, budget system, budget
Nechaev K. A. (Yekaterinburg) The credit regulated by the Russian budgetary law: problems of development.
The article is devoted to problems of the credit regulated by the Russian budgetary law. Brief overview of budget legislation on credit regulation including interstate credits is made.
Key words: budget credit, state credit, budget, problems of development, budget code
LEGAL INTERPRETATION
Kozubenko Yu. V. (Yekaterinburg) About possibility of interrogation of victims – citizens of foreign states in the regime of videoconferencing
The possibility of regime of videoconferencing use in interrogation of victims – citizens of foreign states who are not able appear before the Russian investigation body or courts is examined.
Key words: interrogation, videoconferencing допрос, investigation body
SPECIAL CASES
About further measures on prevention of conflicts of interests in the system of state service
Rather contradictory variants of realization of norms of the law about state civil service in the RF directed on prevention or regulating of conflicts of interests are described in the article. Legislation covers only straight restrictions of immediate subordination and subcontrol of state servants but doesn’t regulate situational or functional subordination.
Key words: state service, conflict of interests, subordination
PAGES OF HISTORY
Drapkin L. Ya (Yekaterinburg) Pages from investigator’s diary
This is the tenth part of autobiographical essay of one the prominent criminalist of modern Russia – professor L. Ya. Drapkin.
Key words: criminalist, investigator, criminalistics, versions, prominent
Khatunov S. Yu. (Stavropol') Chapter thirty–two of Magna Carta
The legal history of England cannot be imagined without a scripture source – Magna Carta. Magna Carta is the fundamental act which has changed the process of development in the English law and nationhood as well as in a legal conscience of the nation. Some of its passages haven’t lost the relevancy and fundamentality today. Ideas of freedom in Magna Carta's chapters meant not so much to reduce the claims and prerogatives of a crown, as to give its definitude and greater definition in law enforcement. Chapter thirty-two is one of such chapter. The author examined some of the circumstances by which the reader can imagine the case with chapter 32 before and after Magna Carta was enacted. Consideration of plea roll and passages of legal treatises enables to discern the development of a legal thought of the Middle Ages.
Key words: Magna Carta, year, day and waste, felony, forfeiting, Prerogative of the Crown (Prerogativa Regis), legal history of England