Annotations № 1 / 2013
ROUND TABLE DISCUSSION «THE RUSSIAN STATE IN THEORETICAL AND HISTORICAL DIMENSION»
Shaburov A. S. (Yekaterinburg) The Russian state and the Russian statehood: the problems of correlation and historical development
The author shows the relationship between the concepts of State and the State in the context of the historical development of Russia. He focuses on the laws of the state rising and functioning in theoretical and historical perspective.
Key words: theory of state and law, history of state and law, statehood, state, laws of development of the state
Smykalin A. S. (Yekaterinburg) Problems of the Russian statehood in legal and historical science: concepts, approaches, periodization
The problem of the definition of «statehood» in the legal and historical sciences, the relationship between them are considered. The key concepts of this notion and their importance for understanding the historical aspect of the state are analyzed.
Key words: history of state and law, statehood, state, concepts of studying the history of statehood, periodization of state development
Kodan S. V. (Yekaterinburg) Imperial parameters of state and law in Russia (second half of XVII – beginning of XX century).
The author refers to a complex and insufficiently studied phenomenon in the state-legal development of the Russian society – the empire. Basic parameters and the concept of the empire are given. The factors and features of the imperial state in Russia in the second half of XVII – beginning of XX century are analyzed.
Key words: history of state and law, statehood, state, empire, the Russian empire, empire, imperial state-legal structure
Semitko A. P. (Yekaterinburg) The idea of federalism in Russia: past and present
The author refers to the idea of federalism in theoretical and historical perspective, shows its peculiarities in the Soviet period and the present time. Special attention is given to consideration of problems of federalism in the political struggle for the choice of state structure in Russia during the mid 1980-1990.
Key words: theory of state and LAW, history of state and law, statehood, government, federalism
Efremova N.N. (Moscow) Justice as a factor in initiation and development of the national state
The author shows the role of the evolution of justice for the birth and development of the state in Russia. Reflection of justice in the history of the Russian state is considered. Focuses on the key trends of regulation of organization of justice in the legislation.
Key words: history of state and law, statehood, government, justice, court, judicial system
PUBLIC ISSUES AND POLITICAL SCIENCE
Dyadyun K. V. (Vladivostok) Implementation of the principle of humanism in the legislative and law enforcement activity
The article analyzes the principles of humanism and problems of its realization. Substantive peculiarities of the principle of humanism, scientists’ opinions on this issue are examined. Violations of the requirements of this principle in the formulation of the provisions of the Criminal Code of the RF are considered. The author offers own resolution of identified problems.
Key words: principle of humanism, recidivism, circumstances mitigating and aggravating the punishment, correctional facilities, imposition of punishment
THEORY OF LAW AND STATE
Slobodnyuk S. L. (Magnitogorsk) Legal reality, sense of justice, and the hollowness of conceptual meanings
The theoretical aspects of the formation of the categories of «legal reality» and «sense of justice» in Russian jurisprudence are considered. The author argues that the original non-legal nature of these categories is able to demonstrate its destructive potential through multiplication of meanings, which in turn deprives the legal reality and the sense of justice of categorical status similar to «being» and «consciousness».
Key words: category, hollowness, concept, legal reality, sense of justice, sense
Antonov M. V. (Saint-Petersburg) The concept of democracy in the context of the pure theory of law (on the 40th year anniversary of the death of Hans Kelsen (1881-1973))
The author examines the doctrine of Hans Kelsen about democracy. Attention is focused on the relationship of the concept of democracy and the concept of the dynamic structure of the rule of law, because this relationship is allows a better understanding the originality of the political and legal views of Kelsen. The essence of democracy, according to Kelsen, is to ensure the people's participation in all phases of law enforcement, not only at the stage of making laws through the elected legislature.
Key words: Hans Kelsen, democracy, pure theory of law, political regime, the dynamic structure of law and order, legislation, enforcement
Semyakin M. N. (Yekaterinburg) Philosophical reflection of civil (private law): the continuation of old traditions and new civilistic concept?
The article opens a series of materials on the philosophical aspects of private law. The author states the absence in the current literature proper attention to philosophical foundations of civil (civilized) law and justifies the need for philosophical reflection in private law. The organizational structure and the subject of study of scientific discipline «philosophy of private law» as well as its relation to the practical aspects of civil law are examined.
Key words: philosophy of law, private law, private law philosophy, structure, subject, discipline
HUMAN RIGHTS
Panchenko V. Yu., Shushpanov K. S. (Krasnoyarsk) Prohibition of euthanasia: the immanent limit or restriction of the right to life?
The article is devoted to the delimitation of the immanent limits and restrictions of the right to life on the example of the prohibition of euthanasia. The authors substantiate the conclusion that the prohibition of euthanasia advocates restriction of the right to life and there are no formal-legal obstacles to the legalization of euthanasia.
Key words: right to life, euthanasia, rights and freedoms, inherent limits of rights and freedoms
INTERNATIONAL LAW
Muratshina K. G. (Yekaterinburg) International legal aspects of cooperation between Russia, Kazakhstan and China on the use of waters of the Irtysh
The problems of the international flow of the river Irtysh are considered. The author analyzes the measures taken by Russia and Kazakhstan on preservation of the river. On the basis of studied agreements of Russia, Kazakhstan, and China on use of the Irtysh waters it is concluded that China reserves the right to dispose their part of the river bed alone although international instruments aim at coordinating all activities for management and use of transboundary waters .
Key words: Russia, Kazakhstan, China, transboundary waters, international waters, the Irtysh, the UN Convention on the law of non-navigational uses of international watercourses 1997
COMPARATIVE JURISPRUDENCE
Peter Chan, David Chan, Terence Lai (Hong Kong) Empowering the Courts in Case Management: the Civil Justice Reform in Hong Kong
The article provides an overview of the changes to the civil procedural law in Hong Kong as a result of civil procedure reform. In view of doctrine and modern practice reform some aspects related to the provision of judges authority to case management.
Key words: reform, civil litigation, case management
Cherkasov A. I. (Moscow) Local government in foreign countries: reforms and development trends
The article is devoted to local government reforms in foreign countries especially in Western Europe and North America. The latest trends in modern local government such as the convergence of its main models, fragmentation, increasing importance of the executive bodies are analyzed. A crisis in representative democracy at the local level is registered.
Key words: local government reform, consolidation of administrative units, crisis of representative democracy, conflict of values, fragmentation, new public management, neighborhood councils, Europeanization of local government
CRIMINAL LAW AND PROCEDURE
Bakhteev D. V. (Yekaterinburg) Situational nature of crime investigation process: problem situations and approaches to their resolution
Crime investigation based on the situational approach is considered, the notion of investigative situations is given, their classification, stages of development are given. The information system of the problem situation is analyzed from the point of view of its dynamics. It is proposed to overcome the information uncertainty by means of heuristic techniques.
Key words: investigation situation, problem situation, information uncertainty, version, heuristics
Mullakhmetova N. E. (Smolensk) Taking into account of agreement and opinion of the victim in taking of some procedural decisions
The situations when legislator requires to consider the opinion of the victim or to get his consent for making important procedural decisions are considered. In this aspect, the author analyzes such issues as the use of a special procedure for the trial, changing the category of crime under Art. 15 of the Criminal Code of the RF. Draft law introducing institute of shorthand criminal proceedings is studied.
Key words: rights of victims in criminal proceedings, consent of the victim, special judicial proceedings
CIVIL LAW AND PROCEDURE
Karpenko N. V. (Yekaterinburg) Peculiarities of housing legal relationships arising on the use of living space in the dormitory
The features of the object, the subject composition, content of housing legal relationships arising from the use of living accommodation in the dormitory are considered. The specificity of the legal regime of the latter is examined, issues of privatization and their solutions are identified.
Key words: dormitory, peculiarity of regulation, housing legal relationship
Sitdikova R. I. (Kazan) Limitation of exclusive rights in the mechanism of copyright protection
The features of limitation of the exclusive rights as a civil-legal means of protection of public interest to access the achievements of science, culture and to facilitate the exchange of information in relation to copyright-legal relations. The increasing importance of the institute of copyright restrictions at present is shown.
Key words: copyright, limitation of rights, public interest, Internet
Nazimov I. A. (Yekaterinburg) Correlation of vindication and claims from unjustified enrichment
The correlation of vindication and claim of unjust enrichment is considered, their similarities and differences are identified. The possibility of the subsidiary application of norms on unjust enrichment to the institution of vindication. The principle validity of competition between these methods of protection is substantiated, its limits are studied. The inadmissibility of condiction claims statement bypassing vindication is concluded because such actions are an abuse of right under Art. 10 of the Civil Code of the RF.
Key words: vindication, vindication of property from illegal possession, condiction, the claim of unjust enrichment, correlation, competition, abuse of rights
Nuriev A. Kh. (Kazan) The problem of compensation for legal entities for non-pecuniary damage caused by acts of public authorities and their officials
The nature of non-pecuniary damage caused to legal entities in the course of their business activities by actions of public authorities and their officials is examined. Special attention is given to the confusion in the categorical apparatus used in the legislation and judicial practice regarding non-pecuniary damage.
Key words: non-pecuniary damage, compensation, legal entity, business, government, public authorities, official, the European Court of Human Rights, the Constitutional Court of the Russian Federation
Fedorova E. V. (Yekaterinburg) The place of rules on responsibility for damage caused by acts of the judiciary in the administration of justice in the Russian law system
Civil nature of responsibility for damage caused by acts of the judiciary handed down when administrating justice is grounded. Norms on property responsibility of state for damage caused by the judicial acts contained in the civil legislation and in normative legal acts of other branch nature are matched. Norms regulating this form of responsibility are treated as a civil law subinstitut.
Key words: responsibility for damage, judicial act, civil nature, public legal character, subinstitut
Reshetnyak V. I. (Rostov-on-Don) The use of video conferencing in the court practice on civil cases
The use of videoconferencing in the arbitration proceedings is examined. The author analyzes advantages and disadvantages of procedural legislation, makes suggestions for its improvements. The conclusion about the possibility of the implementation of information technology in civil litigation is drawn.
Key words: arbitration proceedings, e-justice, videoconferencing, information technology
LABOUR AND SOCIAL LAW
Razumovskaya E. M., Calikova V. V. (Kazan) Formation, principles and possible prospects of development of the system of social services for people with disabilities in the Republic of Tatarstan
The main stages in the formation and development of social services system and the prospects for its development in Tatarstan after the entry into force of the Federal Law «About the basis of social services to citizens in the Russian Federation» are briefly described.
Key words: social services, reformation, rehabilitation, concept, system, standards, barrier-free environment, inclusive education
Antip’eva N.V. (Saint-Petersburg) Concept and types of social security of servicemen
The notion of social security type of servicemen is formulated, criteria of differentiation social security types are identified. The reasons and conditions for granting servicemen pensions, allowances, compensation, benefits and services are summarized. Special attention is given to the analysis of the concept of benefits and services.
Key words: social security, pension, allowance, compensation, benefit
ECONOMICS AND LAW
Vasil'chuk D. I. (Yekaterinburg) Are compensation payments eligibile for taxation?
The article is devoted to compensation and its consolidation in the tax law of the Russian Federation. The ways to incorporate compensation payments to workers who have concluded an employment contract and those engaged in private practice are examined. The author gives examples of legislative conflicts in the tax law.
Key words: income, cost accounting, revenue accounting, compensation, compensation payments
PROCURACY SUPERVISION
Ergashev E. R., Firsova A. A. (Yekaterinburg) To a question on the main requirements for the organization and conduct of the prosecutor's inspection
The concept of the prosecutor's inspection is considered, three stages of inspection: pre-audit, inspection, and post-inspection action are described. It is clarified that the prosecutor's actions at each stage of inspection must meet certain requirements. The content of the general requirements and the requirements for the prosecutor in the individual stages inspection is disclosed.
Key words: prosecutor's inspection, stage of prosecutor's inspection, prosecutor's inspection requirements
PAGES OF HISTORY
Zholobova G. A. (Orenburg) Legal restrictions on hunting weapons’ trade in the Russian Empire at the beginning of XX century.
Analysis of legislation, unpublished circulars and instructions of the Police, Ministry of Interior, archival documents, which the author introduced into scientific circulation for the first time, allowed to reveal peculiarities of legal regulation in the sphere of hunting weapons’ private trade in the Russian Empire at the stage of development of bourgeois relations and the spread of revolutionary sentiments.
Key words: hunting weapons, regulations, trade restrictions, revolution, Code of Laws of the Russian Empire, certificate, merchant, province, compulsory regulations, governor, police, surveillance, registration
Marchenko A. N. (Tambov) Members of the NSDAP party jurisdiction in the system of political-legal relations of the Third Reich
The article is devoted to the party jurisdiction in the legislation of the Third Reich. Particular attention is paid to the privileges held by the members of the NSDAP.
Key words: legal status of the organization, legal status of the individual, party jurisdiction, unification of society, member of the NSDAP, citizen of the Reich
MUSEUM OF SJI-USLA HISTORY
PerevalovV. D. (Yekaterinburg) Introductory article
Documents and comments to them (prepared by N. N. Zipunnikova – Yekaterinburg)