Annotations № 5 / 2014

LEGAL CONGRESS IN YEKATERINBURG

Perevalov V. D. (Yekaterinburg, Urals State Law University, e-mail: rektorat@usla.ru) The interaction of legal systems: theoretical aspects

Various aspects of the interaction of national legal systems are examined, the author attempts to explain scientifically factors that contribute to the implementation of the interstate and interpersonal communication through legal measures; the need for doctrinal knowledge potential usage is emphasized.

Key words: legal systems, state formations, globalization, integration, legal knowledge

Marochkin S. Yu. (Tyumen, Tyumen State University, e-mail: mar@utmn.ru) The interaction of legal systems as a general development trend (the international community’s attitude to the rule of law: expectations and reality)

By the example of the rule of law a global tendency to strengthening the interaction of legal systems is shown. The author marks that, on the one hand, states aim to proclaim the rule of law at the national and international levels, and on the other hand, they have used to rely on force instead of right for centuries. The activities of states often differs from their intention to observe the rule of law enshrined in the international documents that they enact.

Key words: interaction of legal systems, rule of law, national and international levels, judicial dialogue, relationship between politics and law, role of international law

Kruss V. I. (Tver, Tver State University, e-mail: law.theory@tversu.ru) Dialectics of constitutionalization and the interaction of legal systems in the context of globalization

The problems of dialectical link of constitutionalization of Russian legal system with the impact that it undergoes in the course of globalization are raised. According to the author, it is necessary to solve these problems basing on the idea that the Constitutional Court of the Russian Federation is the only subject of constitutionalization and the supremacy of the Constitution of the Russian Federation is a guarantee of state sovereignty.

Key words: constitutionalization, globalization, WTO, Constitutional Court of the Russian Federation, Constitution of the Russian Federation

Malinovskiy V. A. (Astana, Kazakhstan, Constitutional Council of the Republic of Kazakhstan, e-mail: ruzh@usla.ru) The Republic of Kazakhstan: the experience of consolidation of constitutionalism in transition period

The article describes the stages of constitutional law development in the Republic of Kazakhstan. The factors that stipulate changes in the Constitution of Kazakhstan are analyzed. Methodological and historical grounds for forming and strengthening the Kazakhstan constitutionalism are marked.

Key words: Kazakhstan, Constitution, concept of legal policy of the Republic of Kazakhstan, features of Kazakhstan constitutionalism

Salikov M. S. (Yekaterinburg, Urals State Law University, e-mail: kp@usla.ru) On the regulation of changing the structure of the Russian Federation

An adoption and formation of a new constituent entity of the Russian Federation are described. On certain examples problems of the legal regulation of these procedures are analyzed.

Key words: change of the structure of the Russian Federation, adoption of a new constituent entity in the Russian Federation, formation of a new constituent entity in the Russian Federation, Republic of Crimea, federal city of Sevastopol

Vasilyeva Yu. V. (Perm, Perm State National Research University, e-mail: vasilev95@list.ru), Braun E. A. (Perm, Legislative Assembly of Perm Krai, e-mail:braunea@parlament.perm.ru) Development of atypical legal labour relations in Russia

One of the outcomes of the interaction of the Russian labour law and foreign legal systems is the emergence of unconventional forms of employment in Russia. By virtue of their flexibility these forms are becoming more common by narrowing the sphere of labour relations defined conventionally. Certain types of atypical labour relations are investigated, their features and problems of their legislative regulation are revealed. Atypical labour relations differ in three main features: personal, organizational, material. The authors come to the conclusion on the need for enhancing the flexibility of labour legal relations at the expense of using new forms of employees’ involvement in particular, subject to improvement of the legislation of this sphere.

Key words: atypical labour relations, unconventional employment, agency labour, teleworking

Kuchina Yu. A. (Yekaterinburg, Urals State Law University, e-mail: tp@usla.ru) Problems of implementing the conventions of the International Labour Organization norms for leaves into the Russian legislation

The analysis of the International Labour Organization conventions on paid educational leaves and paid annual leaves ratified by the Russian Federation is carried out. There is a conclusion that the Russian labour legislation isn’t fully consistent with these conventions. As a result, the guarantees provided by the con- ventions are reducing. The author suggests improving the labour legislation in order to make it germane to international labour standards.

Key words: convention, International Labour Organization, paid annual leave, paid educational leave

THEORY OF STATE AND LAW

Zhdanov P. S. (Nizhniy Novgorod, Nizhniy Novgorod State University, e-mail: tigpnngu@yandex.ru) The Renaissance outlook and the new European political and legal tradition

The author touches upon the issue of determining the point in which the current Western political and legal tradition has its origins. The author stands for an idea about considering this tradition in the context of the Renaissance outlook. The main features of this outlook in their relation to general categories of the new European political and legal thinking are characterized. The Renaissance approach to understanding the state as «a work of art» is analyzed. This approach reflects a new view of state and law as products of purposeful human activities. The natural law concepts of the Renaissance are explored in the context of natural-philosophical views. Rationalistic tendencies in the Renaissance political and legal thinking are studied by the example of Machiavelli’s views and utopian projects on a social life totally subordinated by reason demands. The European political and legal tradition is running down today because its outlook premises formed in the Renaissance times are pushing from the basic values of postmodern society.

Key words: Renaissance, outlook, New Times, natural law, humanism, rationalism, individualism, utopia, political and legal tradition

INTERNATIONAL LAW

Kasyanov R. A. (Moscow, Moscow State Institute of International Relations (University) MIR of Russia, e-mail: rkasy@mail.ru) The European Union is ready to cross the Rubicon or A new stage of the legal regulation of the fight against market abuse

The projects of two legal acts of the European Union 2011 that are on their final talking stage in the authorized European institutions today are investigated. It is noted that if they are adopted, the EU legal foundations of the fight against market abuse will be significantly reformed. The projects reflect a new EU’s approach to the legal regulation of market abuse that intends a major expansion of the European legislation jurisdiction in regard to the subject and set of parties, determination of strict measures of administrative and criminal responsibility for insider trading and market manipulation, expansion of national regulators’ powers, and paying more attention to the interests of small and medium-sized enterprises entering the securities market.

Key words: European Union, European financial markets, market abuse and insider trading, market manipulation, trading platform, criminal responsibility

Kozheurov Ya. S. (Moscow, Moscow State Law University (MSLA), e-mail: jskozheurov@msal.ru) From Hiroshima to Fukushima: international legal aspects of the states practice of compensation for nuclear damage

The subject of the article is the states practice of causing nuclear damage and compensation for it. The author seeks to study such cases, the impact they have on developing both common and contract international law in the sphere of using nuclear energy, as well as to identify some current issues and prospects of the international legal regulation of this area. The analysis gives every reason to believe that the relevant practice, including the compensation ex gratia, indicates forming of a state obligation in common international law: the state under which jurisdiction or control the activities caused transboundary nuclear damage is obliged to ensure its prompt and adequate compensation. In doing so it may choose certain mechanisms, models, forms and methods of such compensation. It can individually or through international cooperation take on the absolute responsibility for damages, or incur an exclusive and strict civil liability of operators of the relevant activities, or combine these mechanisms, particularly through establishing general funds joint with other states.

Key words: nuclear damage, transboundary damage, nuclear incident, international responsibility, international responsibility for damage caused by lawful activity

Khuzikhanova A. R. (Kazan, Kazan Federal University, e-mail: khuzikhanova@yandex.ru) On a notion of the international organization of economic integration

The ambition of states for integration leads to establishing more international organizations, to widening their scope. One of the new types of such associations is international organizations of economic integration. The article describes problems and patterns of establishing economic integration associations. The distinctive features of these organizations that give reason to pick out their separate category are outlined. The author reveals a definition of «the international organizations of economic integration».

Key words: international integration, international organizations of economic integration, customs union, common market, distinctive features

COMPARATIVE JURISPRUDENCE

Klinovskiy V. A. (Ulan-Ude, Buryat State University, e-mail: klyn87@mail.ru) Con- stitutional status of the language in the People’s Republic of China

The methods and principles of legislative regulation of language relations in China are examined on a basis of the analysis of the Constitution and other legislative acts of the PRC. Its characteristics and main problems associated with the application of the relevant regulatory legal acts are identified.

Key words: PRC, constitution, constitutional law, language, language policy, state language, official language, legal status

Zhdanov I. N. (Voronezh, Voronezh State University, e-mail: mail@ijdanov.ru) The interrelation between international, European and national law of Finland

Basing on the Finnish doctrine of international law the author addresses the issue of the interrelation between international, European and national law of the Republic of Finland. The last amendment to the Constitution of Finland and its influence on the mentioned matter are analyzed. The examples of the influence of international and European law on national law of Finland, the implementation of secondary EU law in Finland are given and the conclusion that Finland uses the concept of the interrelation of these legal systems is made.

Key words: interrelation of international, European and national law of Finland, implementation of secondary EU law in Finland, amendment to the Constitution of Finland

CONSTITUTIONAL LAW AND PROCEDURE

Chepus A. V. (Moscow, Russian Academy of National Economy and Public Administration under the President of the Russian Federation, e-mail: alexal_2004@mail.ru) The constitutional and legal regulation of parliamentary inquiries of the Government of the RF activities

First of all the author aims for studying the current state of the institute of parliamentary inquiries in the course of supervision over the activities of the Government of the RF. The main point, legal elements, specificity of parliamentary inquiries and parliamentary control are revealed. The procedure of parliamentary inquiries divided into stages and steps is analyzed. The author reveals his sight of issues of the Government of the RF responsibility to the parliament, suggests the ways of their solving by means of certain mechanisms. The need for an effective mechanism of parliamentary supervision over the work of the executive power in the country is emphasized.

Key words: parliamentary inquiries, parliamentary supervision, Government of the RF, resignation, refusal to trust

Agleeva L. T. (Yekaterinburg, Urals State Law University, e-mail: agleeva.lt@gmail.com) The electors’ right to correct counting of votes in the elections: a notion and a possibility of judicial remedy

A notion and a constitutional and legal nature of the electors’ right to correct counting of votes in the elections with the reliance on the legal position of the Constitutional Court of the RF are analyzed. It is grounded that this right is a part of a positive suffrage. The decisions of the Supreme Court of the RF on this matter are examined. The problem of equality of rights of electors who demand the revision of the voting, and electors who don’t raise such claims is considered. The author pays attention to the need for an adequate limitation of these voting rights.

Key words: elections, positive suffrage, limitation of voting rights, voting results, judicial appeal

Kalinina E. G. (Yekaterinburg Urals State Law University, e-mail: catherinekalinina@gmail.com) The specialized ombudsmen in the RF: a new member in the system of a national human rights protection mechanism

The attention is paid to the present-day trend to emerging the specialized ombudsmen in the Russian Federation (the students’ rights ombudsman, the business owners’ rights ombudsman, etc.) as a new member of a national human rights protection mechanism. The author outlines the set of issues that must have been solved before this institution is declared effective and reasonable for Russian legal reality.

Key words: specialized ombudsmen, human rights, trends, problems

CRIMINAL LAW AND PROCEDURE

Khilyuta V. V. (Grodno, Belarus, Grodno State University, e-mail: tajna@tut.by) Problems of doctrinal interpretation of a physical attribute of the property in criminal law

The urgent problems of doctrinal assessment of a physical attribute of the property as an object of stealing are considered. The author asserts that it’s necessary to consider the property merely a thing and to work out a concept of a criminal law protection of intangible objects.

Key words: stealing, object of stealing, property, thing, crimes against property

Shiryaev A. Yu. (Kushva, Office of Public Prosecutor of Kushva, e-mail: alexej.shiryaeff2013@yandex.ru) A meaning of social danger and guilt of crimes under P. 1 of Art. 116 of the Criminal Code of the RF, committed in the course of interfamily conflicts

The author has collected and analyzed the criminal offenses, initiated by a body of inquiry under P. 4 Art. 20 of the Code of Criminal Procedure of the RF, in connection with crimes, provided by P. 1 Art. 116 of the Criminal Code of the RF, committed in the course of interfamily conflicts. He focuses on its material side that discovers the real socially dangerous features of deeds beyond their formal compliance with legal definitions. The author differs the crimes according to the degree of their social danger. Basing on the papers of the most outstanding Russian scientists the author offers his own scheme of the social legal analysis of this type of deeds that meets social tasks and a constitutional legal meaning of criminal law. The results of the study can be used by practitioners for a meaningful criminal legal assessment of examined deeds and for a choice of the relevant form of a public legal influence.

Key words: material side of crime, violent encroachment, beatings, form of a public legal influence

Davletov A. A. (Yekaterinburg, Urals State Law University, e-mail: up@usla.ru), Bratchikov D. A. (Yekaterinburg, Urals State Law University, e-mail: De-Bratchikov@yandex.ru) The issue of the application of mediation in the criminal trial of Russia

The application of such a conciliation procedure as mediation in criminal trial is considered. The authors reveal under what conditions mediation is possible in the current criminal trial are analyzed. They conclude that nowadays there are essential prerequisites for including the mediation procedure in the criminal trial activities.

Key words: conciliation procedures, negotiations of the parties, mediation, stay of criminal proceeding, criminal trial

Kozubenko Yu. V. (Yekaterinburg, Urals State Law University, e-mail: yuri.kozu benko@usla.ru) Procedural «matryoshkas» in the intersectoral mechanism of the criminal legal regulation

The application of procedural «matryoshkas» is considered on the basis of the analysis of judicial practice of the Constitutional Court, the European Court of Human Rights and the Supreme Court of the RF. It is argued that the legal constructions containing factual circumstances of the case mixed up with purely legal grounds should be at least provided with additional procedures in criminal proceedings. The essence of a procedural «matryoshka» is disclosed: the court decision on violation of the European Convention on Human Rights or the Constitution of the RF can’t be substituted for violation of the Convention or the Constitution of the RF (a matter of fact).

Key words: procedural «matryoshka», decisions of the Constitutional Court of the RF, new circumstances, decisions of the European Court of Human Rights, tax audit act

Stel’makh V. Yu. (Yekaterinburg, Urals Law Institute of MIA of Russia, e-mail: vlstelmah@mail.ru) Some issues of the interpreter’s participation in the preliminary investigation of criminal cases

The legislative norms that regulate the interpreter’s participation in the preliminary investigation of criminal cases and their application are analyzed. The author notes that some issues related to the interpreter’s participation are settled incompletely by the law. He explains who should be considered a person not speaking the language of criminal proceedings, formulates general and specific requirements for an interpreter in the criminal proceeding, the procedural order of his appointment and replacement.

Key words: preliminary investigation, participants in the criminal proceeding, an interpreter

QUESTIONS OF INVESTIGATION AND OPERATIVE-RESEARCH ACTIVITY

Drapkin L. Ya. (Yekaterinburg, Urals State Law University, e-mail: ruzh@usla.ru), Shuklin A. E. (Yekaterinburg, Investigative Department of the Investigative Committee of the Russian Federation in the Sverdlovsk region, e-mail: e-mail: ruzh@usla.ru) On the method of analogy used for overcoming problem situations that arise in the course of the investigation of criminal cases

The issues of using the method of analogy for overcoming problem situations that arise in the course of investigation of crimes are stated. The authors prove that this method is required in examining modus operandi, space and time of crime. In support of this conclusion they give examples of certain criminal cases.

Key words: problem situations, analogy, heuristics, logic, criminal cases, detection of crime, disclosure of crime

CIVIL LAW AND PROCEDURE

Terekhov V. V. (Omsk, Omsk State University, e-mail: victor@law-faculty.net) A notion and a meaning of the «res judicata» category in the Russian and foreign civil procedure

The «res judicata» category is considered on a basis of the comparative analysis of the foreign law doctrine and the practice of the European Court of Human Rights. The author concludes that it’s related to such categories as «the legal validity of a court decision» and «the principle of legal certainty» (but not identical to them). Definitions of res judicata determined by the Russian scientists are criticized, and an independent view of the notion and purpose of this category is offered.

Key words: res judicata, legal certainty, legal validity, cogency, collateral estoppel

PROBLEMS OF JURIDICAL EDUCATION

Tolstykh V. L. (Novosibirsk, Novosibirsk State University, e-mail: vlt73@mail.ru) The university and the state

The basic idea of the university is articulated and its relationship with the state is considered. The possible negative impact on teachers, students and their relations are analyzed. The author examines the problems of the Bologna process, the capitalism impact on the university and university policy of the state. The conclusion that it’s necessary to destruct the university’s connection with the value systems alien to the state in order to recreate its relationship with the national culture is made.

Key words: university, lecture, state, metanarrative, globalism, capitalism, postmodernism, Bologna process

YOUR LIBRARY

Review of the monograph by A. M. Zatsepin «Additional qualification of crimes». – M.: Yurlitinform, 2014 – 184 p.