Annotations № 5 / 2011

JURIDICAL CONGRESS IN YEKATERINBURG

V Session of Euro-Asian Juridical Congress

Review of expert opinions and resolutions of expert groups

Materials of the 5th session of Euro-Asian Juridical Congress including reviews of experts groups and their resolutions on the problems of improvement of the commercial legislation of Russia, member-states of EurAsEC, SCO and European Union in conditions of modernization and globalization; criminological examination in the system of measures counteracting transnational organized crime; modernization of labour legislation and welfare legislation of EurAsEC countries in conditions of legal integration; mediation in notarial activity: the basic models and features of their realization.

PUBLIC AND PRIVATE PRINCIPLES IN LAW

Nersesyan V. S. (Moscow) The genesis of the law and the forming of the juridical person

The genesis of the law as a formal equality and the forming of the juridical person as the creator and the material carrier of the formal equality is connected with the conscious self-identification and self-organization of people – with the socio-genesis. The socio-genesis, law-genesis and the juridical person forming together make a united process that is based on the people formal equality.

Key words: self-identification, formal equality, juridical person, law-genesis, socio-genesis

Gribanov D. V. (Yekaterinburg) Sense of justice of the society and sense of individual rights in the sphere of innovation development

The author refers to the investigation of the specifics of justice and the sense of individual rights in the society that embraces innovation and the formation of the state innovation policy. On the basis of general theoretical concept of provisions on legal consciousness characteristic of the author represents the society of justice in the sphere of innovation development. The functions of justice in relation to the process of innovation development are examined.

Key words: innovation, innovative development, the sense of justice, the sense of right, legal regulation, the state innovation policy

Kurochkin S. A. (Yekaterinburg) Civil and public law principles in civil procedure system

The article is a brief review of some research results of civil and public law principles in civil procedure system. Significant role of public principles in civil procedure system construction and meaning of civil law norms in the establishment of state intervention limits are shown. Represented analysis allows defining some statements on legal nature of civil and public law principles in civil procedure and civil procedure law.

Key words: civil law, public law, civil procedure, system

Tyurina N. Y. (Kazan) Public legal relations in international trade

From ancient times public relations make up an important part in a complex of international trade relations. In the article their components and methods of legal regulation are compared with public relations in other areas of international law and national law system.

Key words: public legal relations, international trade, legal system

THEORY OF STATE AND LAW

Detkov A. P. (Yekaterinburg) Legal conflict

Legal conflict is a kind of social conflict characterized by social interaction (collision, confrontation) between the subjects of legal relations.

Key words: legal conflict, typology of conflict, conflict dynamics, motivation of conflict, conflict dynamics, stages of development of the legal conflict

Kozenko Yu. O. (Lvov, Ukraine) Positive law as normative construction of person`s behavior

The article is devoted to the analysis of problem of action of law onto the person`s behavior, in the context of normative (positive) law through the prism of textological and physical, psychological and spiritual aspects.

Key words: action of law, legal norm, person`s behavior, natural law, positive law

PUBLIC ISSUES AND POLITICAL SCIENCE

Romanchuk I. S. (Tyumen) The importance of determinants in mechanism of action of functioning of state authority patterns

The research covers investigation of various determinants correlation and functioning of authority patterns. Furthermore, problems of comprehension and determination of state-law patterns are considered as well as the differentiation of this concept from adjoining categories.

Key words: patterns of genesis and functioning, state authority, causal determination, mechanism of action

RUSSIAN FEDERATION AND ITS SUBJECTS

Leonenko N. T. (Novosibirsk) The right of the legislative initiative in regional legislative process: essence, problems, proposals

This article considers the essence of the right of legislative initiative, the forms of its realization in regional legislative process. The reasonability and validity of providing of one or another subjects with such right and their status are analyzed. The proposals directed on improving of this institute of a constitutional law are formulated.

Key words: guarantees, head of executive authority, legislative initiative, legislative proposal, legislative process, bill, sovereignty of the people, duty, legislative body, subject of right of legislative initiative

CRIMINAL LAW AND PROCEDURE

Bekmagambetov A. B. (Kostanay, Kazakhstan) Perfection of legal base in sphere of counteraction of a transnational organized crime and human trade

The article is devoted to studying of potential of legislative toolkit in questions of counteraction of transnational organized crime and human trade. The special accent is made on value of carrying out of criminological examination of the published acts and projects of prepared laws. On the basis of studying of the bill of strengthening of struggle against a transnational organized crime the attention on progressive ideas and also the positions needing updating is paid.

Key words: transnational organized crime, human traffic, criminological examination

Zhdanukhin D. Yu. (Moscow) Criminological expertise of influence of extrajudicial ways of protection from economic crimes

Article is devoted to potential of criminological expertise of influence of extrajudicial ways of protection of the broken rights and first of all it concerns commercial dept collecting which affects economic crimes. The basic variants of influence: replacement of criminal and corrupt ways of settling debts, prevention of debt crimes (fraud), concealing of use of criminal ways of dept collecting as commercial dept collecting.

Key words: criminological expertise, self-defense of the broken rights, debts, corporate commercial dept collecting

Shiryaev A. Yu. (Kushva) Comparative and historical essay on corpus delicti

This article is devoted to research of the genesis and evolution of concept of corpus delicti in the Russian criminal law doctrine and some others in historical aspect. Author analyses the problems of comprehension corpus delicti and suggest the new ways for research in criminal law science correlated to its resolutions.

Key words: corpus delicti, elements of crime, instrument for criminal attribution, guilt, mental element of crime

CIVIL LAW AND PROCEDURE

Abolonin V. O. (Yekaterinburg) Searching for the «Russian model» of the court mediation

The author analyzes the main models of the court mediation that has been worked out in the foreign practice in the last few years. Particularly, he presents the court mediation in the Netherlands and in Germany where different models of court mediation became popular. Discussing the future of the court mediation in Russia the author suggests that the Russian model should be based on the Dutch experience.

Key words: mediation, court mediation, alternative dispute resolution, court conciliation procedure

Lunkov D. A. (Yaroslavl) The place and the name of institute of the instrumentality principal offender demand specification

The author considers problems of the name of institute of instrumentality perpetration of crime and its place in the General part of the Criminal Code of the RF. The conventional names – «the instrumentality executor of a crime» and «the instrumentality harm-doer» cannot be named successful as the category «executor» is probable the only one within the limits of criminal complicity and does not reflect essence of wrong-doing by means of innocent agents, showing the special form of performance of the objective part of a crime, and concept «the instrumentality harm-doer» has universal nature and is used in different branches of law. The author offers to move institute of the instrumentality executor of a crime to institute of persons subjected to criminal responsibility and to rename it into institute of instrumentality perpetration of crime.

Keywords: historical aspects, the instrumentality harm-doer, the instrumentality executor of a crime

Shakhbazyan A. A. (Stavropol’) The notion and the meaning of legal risks in civil law and methods of their minimization

In spite of the frequent use of term «risk» specialists in civil law spared not enough attention to this category. The author has analyzes civil law risks, describes narrow and wide sense of the category, methods of their minimization, their signs and kinds.

Key words: legal risk, civil law risk, distribution of risk, civil law risk conceptions, contractual adjusting, legal audit, notarial certification

ECONOMICS AND LAW

Kruchinin A. V. (Izhevsk) Methodological preconditions of labour legislation of the Euro-Asian economic community countries’ integration

The article is devoted to the problems of stages of formation of the uniform labour law of the Euro-Asian economic community. It is offered to formulate conflict norms, to create the uniform terminology and to create system of social partnership within the limits of the Euro-Asian economic community.

Key words: Euro-Asian economic community, labor law, conflict norms, terminology, system of social partnership

Mikhajlov N. I. (Moscow) Legal means of activation of corporate subjects’ activity in innovation sphere

Categorial, systematical-historical and legal analysis of innovation and innovational activity is presented. Business activity in innovation sphere is estimated. The author gives recommendations on contracts on creating of innovative products execution.

Key words: innovation, innovation activity, corporate subject, business activity

Grigoryev A. S. (Yekaterinburg) Construction of fiscal obligatory legal relation and the problems of international double taxation elimination

The necessity to consider obligating fiscal relations, including the aspect of international taxation is grounded. The problems of the international taxation are analyzed on the basis of construction of tax liability. The examples of «tax liability» category in the field of transboundary taxation are shown. The methods of problems of international double taxation resolving are considered.

Key words: tax, liability, international, credit, tax treaty, construction, subject

PROCURACY SUPERVISION

Shobukhin V. Yu. (Yekaterinburg) Tendencies and regularities of development of the Russian Prosecutor’s Office in the XIX century

The article is devoted to tendencies and regularities of development of the Russian Prosecutor’s Office in the XIX century. Special attention is paid to the evolution of status of the Russian Prosecutor’s Office after judicial reform in 1864. The author analyzes legal norms about prosecutor’s supervision, contained in the Judicial regulations, Statute of criminal procedure, Statute of litigation, State of penalties that are imposed by magistrates.

Key words: Emperor, general-prosecutor, minister of justice, senate, solicitor, law court, province

Bajkin I. M. (Saint-Petersburg) Legal analysis of an executive branch of the power and bodies of Office of Public Prosecutor

The legal analysis of functions and powers of bodies of an executive branch of the power and bodies of Office of Public Prosecutor is carried out. The author gives in a substantiation of his position theoretical and practical reasons that allocation of distinctive features of powers of the given bodies will allow to understand more deeply their essence in power structure.

Key words: Office of Public Prosecutor, division of the authorities, the competence, the competence, an executive power, state body, control, supervision

INTERPRETATION OF LAWS

Shaykhatdinov V. Sh. (Yekaterinburg) Defects of law making in the sphere of social security and their consequences

In the article the defects of right creation and in social security sphere are analyzed. The author's analysis of the basic problems connected by not enough accurate information of norms is given and to consequences to which they result, changes and additions in statutory acts are offered.

Key words: defects of lawmaking; social welfare; pensions; disability benefits; benefits for pregnancy and childbirth; allowances for children; state social assistance.

Puryaeva А. Yu. (Kazan) The problems of the definition of «forest» in the legislation of the Russian Federation

The article is devoted to the problems in forestry legislation of the Russian Federation in terms of the legal definition of «forest». The author emphasizes that the current Forestry Code of the RF does not disclose the notion of «forest». The author investigates the links of biological notion and legal concept of «forest» and suggests her own definition of «forest» for the text of the code, with the ability to integrate between scientific disciplines.

Key words: forest, forestry legislation, biological notion of legal concept

PAGES OF HISTORY

Drapkin L. Ya (Yekaterinburg) Pages from investigator’s diary

This is the eleventh part of autobiographical essay of one the prominent criminalist of modern Russia – professor L. Ya. Drapkin.

Key words: criminalist, investigator, criminalistics, versions, prominent

Rozhnov A. A. (Moscow) On the problem of death penalty according to the Sudebnik of 1497

The article is devoted to the problem of death penalty according to the Sudebnik of 1497. The author gives a detailed characteristic of crimes punished by death penalty and analyses different scientific points of view on the problem.

Key words: The Sudebnik of 1497, history of Russian criminal law, crimes and punishments, death penalty

Biyushkina N. I. (Nizhnij Novgorod) On the question of the notion of counterreform of 80-90th of a XIXth century in Russia

The article is devoted to a problem and ambiguous theme of counterreforms of 80-90th of a XIXth century in Russia. Definition of this concept is made, signs are allocated. Necessity of the conservative stabilization undertaken by Alexander III is proved. Positions of such outstanding political and public figures of that time as K.P. Рobedonostsev, A.H. Bunge, N.P. Giljarov-Platonov who saw essential lacks of the reforms spent in 60 – 70th of XIX century are resulted. They insisted on correction of these transformations taking into account development in the end of 70th of an extreme difficult social and economic and political-legal situation for the purpose of restoration of a mode of legality, law and order, security of the developed form of the Russian state.

Key words: counterreforms, a course of correction of reforms of Alexander II, the Russian conservative patriotically-adjusted political thought