Annotations № 6 / 2014
INTERNATIONAL LAW
Ispolinov A. S. (Moscow, Moscow State University, e-mail: ispolin@lexinvest.ru) Jus cogens norms in judgments of international and national courts
The author examines the development of the jus cogens doctrine in judgments of international and national courts. A list of norms treated as peremptory is widening, as well as a vertical application of jus cogens norms by courts is brought into use in order to nullify domestic legal acts.
Key words: jus cogens, imperative norms, courts, horizontal and vertical application
Vasyaev A. A. (Moscow, Moscow City Bar Association, e-mail: mail@advokat-vasyaev.ru), Kurdyukov G. I. (Kazan, Kazan (Volga) Federal University, e-mail: kurdykov@rambler.ru), Knyazkin S. A. (Moscow, Center for International Human Rights of Mikhail Trepashkin, e-mail: knazkins@gmail.com) Motivated judgments in the light of standards of the European Court of Human Rights
On the basis of judgments of the European Court of Human Rights a motivation criterion is considered and the need to entrench it in the Russian legislation is proved. The authors argue that motivated petition judgments can make the rule of law in criminal proceedings stronger and the protection of rights and legitimate interests of the parties more efficient.
Key words: trial, judgment, violation of law, human rights, standards of the European Court of Human Rights
Salikov M. S. (Yekaterinburg, Urals State Law University, e-mail: kp@usla.ru) International treaties of the Russian Federation as the objects of constitutional judicial control
Judicial review of constitutionality of Russian international treaties by the Constitutional Court of the RF is considered. The author analyzes judgments of the Constitutional Court delivered according to results of such review of treaties, in particular the agreement on the accession of the Russian Federation to the World Trade Organization and the agreement on the accession of the Republic of Crimea to the Russian Federation and on forming new constituent entities within the RF.
Key words: constitutional judicial review, international treaty of the Russian Federation, World Trade Organization, Republic of Crimea
COMPARATIVE JURISPRUDENCE
Bill’ M. V. (Surgut, LLC «Interior Center „Gulliver“», e-mail: marisbill@yandex.ru) International practices in public-private partnerships legal regulation and organization
The origins and present state of public-private partnerships in Europe and the United States are disclosed. The main forms of public-private partnerships in foreign countries are characterized, the fields of their most efficient application are named. The foreign mechanisms for controlling public-private partnerships by the state and municipal authorities are described. The author exploits comprehensive and comparative analysis. The issue is relevant due to the rapid development of public-private partnerships in the Russian Federation.
Key words: Constitution, principles, law, government, partnership
Isabekov K. S. (Bishkek, Kyrgyzstan, Kyrgyz National University, e-mail: isabekov_k@mail.ru) Topical issues of the legal regulation of migration in Kyrgyzstan
Issues of migration, its legal regulation in the CIS countries are considered. Ways of solving migration problems are examined.
Key words: illegal migration, migrant workers, migration legislation
Nechkin A. V. (Ekaterinburg, Urals State Law University, e-mail: super.nechkin@gmail.com) Changes in the nature of responsibility of the supreme body of executive power and its members in the CIS countries: current trends
A correlation between concepts of political responsibility and constitutional and legal responsibility is considered. Changes in the nature of responsibility of governments in the countries of the Commonwealth of Independent States are analyzed. Amendments to the Russian legislation are proposed.
Key words: Commonwealth of Independent States, executive power, government, political responsibility, constitutional and legal responsibility
CONSTITUTIONAL LAW AND PROCEDURE
Kuznetsova E. V. (Yekaterinburg, Urals State Law University, e-mail: thesaurus999@mail.ru) Preventing the occurrence of legal gaps by institutions of constitutional justice in the Russian Federation
The author analyzes the means of the Constitutional Court of the RF and constitutional courts of the constituent entities of the RF for preventing legal gaps. She brings out the key ones and investigates their legislative basis. The author concludes that it’s necessary to entrench the right of constitutional justice legislators to decide the order of entering into force of their decisions and to set up rules applicable till the amendment of the disputed law.
Key words: Constitutional Justice, Constitutional Court, legal gaps, constitutional legality
Karasev R. E. (Tyumen, Tyumen State University, e-mail: postservice_91@mail.ru) The present stage of the Russian judicial system reforming: its impact on the effective protection of the rights and freedoms of man and citizen
The subject of the study is the recent changes in the Russian judicial system, in particular the merger of the higher courts, and their impact on the effective protection of the rights and freedoms of man, citizen and associations of citizens in the Russian Federation. The author tries to identify factors that influenced judicial system reforming, mentions disadvantages of normative legal acts passed under the terms of the reform. These issues are considered from the viewpoint of exercising the constitutional rights of man and citizen to judicial protection and access to justice. The author uses methods of comparative jurisprudence, scientific analysis, synthesis. It is concluded that the judicial system reform in the Russian Federation meets the current state and level of our social and state development. It is argued that resolving certain legal problems can significantly improve the quality of Russian justice and guarantee the effective judicial protection of the rights and freedoms of man and citizen in the Russian Federation. At the same time it’s important to improve law enforcement practices and regulation activities of the courts and state personnel policy related to the judicial system for protecting the constitutional rights and freedoms.
Key words: Constitution of the RF, judicial reform, justice, merger of courts, Supreme Court, Supreme Arbitration Court, rights and freedoms, judicial protection, effective protection
CRIMINAL LAW AND PROCEDURE
Vyazemskaya A. A. (Moscow, Moscow State Law University, e-mail: vyazemskaya@live.ru) Inducement to use narcotic drugs, psychotropic substances and their analogues in the Russian and Dutch legislation
The Dutch criminal legislation on the regulation of drugs and psychotropic substances trafficking offenses is examined. The author tries to find out whether the Dutch criminal legislation includes a provision similar to the norm of Art. 230 of the CC of the RF. She mentions legal consequences of inducement to use narcotic drugs and psychotropic substances within the territory of the Kingdom of Netherlands, and also highlights the similarities and differences of Russian and Dutch ways of response to the problem.
Key words: coffee shop, drugs, Netherlands, Opium Act, psychotropic substances, inducement to use, Art. 230 of the CC of the RF
Bashkov A. V. (Yekaterinburg, Urals State Law University, e-mail: bashkovav2011@yandex.ru) Property theft from clothes, bags or other hand luggage the victim has: the issues of qualification
Basing on doctrinal views, examples of judicial practice the author criticizes the emerging position on the qualification of property theft from clothes, bags or other hand luggage asleep or dead victims have. It is emphasized that in this case crime situation must be regarded as a qualifying sign, because it’s recognized by the guilty person and, therefore, imputative. Thus, the author draws attention to the shortcomings of the existing norm that cause its misapplication, and offers his own variant of the norm.
Key words: theft from clothes, hand luggage, victim, crime situation, qualification, delimitation from robbery
CIVIL LAW AND PROCEDURE
Filimonova I. V. (Pyatigorsk, North Caucasus Federal University, e-mail: ifilim@yandex.ru) The concept and the legal nature of the holding: basic approaches
The holding as a kind of business association is investigated. The author seeks to define this concept, to establish the subject structure of the holding company and the nature of its legal personality. The purpose of the article is to identify the legal nature of the holding. The author uses general and particular methods: dialectical, logical, linguistic, systematic and structural, functional, historical, legal, legalistic, hermeneutic. She concludes that it’s necessary to consolidate the legal definition of «holding» («business association»), to establish clearly the subject structure of the holding, to clarify a doctrinal concept «the subject of civil rights». The study is relevant for improving the Russian civil legislation and clarifying the conceptual apparatus of civil law.
Key words: holding, holding company, legal personality of holding company, business association, group of persons
Nikitin A. V. (Yekaterinburg, JSC «Olips», e-mail: anikitin@olips.ru) On the qualification of catering service contracts
The legal nature of the catering service contracts is examined. Basing on the analysis of the elements of catering services the author concludes that according to general rule these contracts should be classified as sales contracts.
Key words: catering services, sales contract, contract for compensatory services, independent type of contract, legal relationship with a complex structure
Chudinovskaya E. A. (Yekaterinburg, Urals State Law University, e-mail: Eka678@gmail.com) The emergence of personal security relationships. Relationships between the creditor and the person who provides security from the moment of transaction until the breach of an obligation by the debtor
The author outlines a range of legal facts necessary for emerging such legal relationships as personal security for obligations of the debtor by third parties. For this purpose she describes relationships between the parties of obligation at the stages of committing a secured transaction, breaking an obligation by the debtor, putting forward requirements to the person who provides security by the creditor. It is proved that the full range of rights and responsibilities of the person who provides security can’t emerge from the mere fact of a secured transaction. The «interrelation between the parties» arising after the secured transaction has been committed, and before the primary responsibilities of the person who provides security occurs is analyzed.
Key words: security for obligations, surety, guarantee, emergence of security relationships
ECONOMICS AND LAW
Osintcev D. V. (Yekaterinburg, Urals State Law University, e-mail: tipu@list.ru) A reserve potential of foreign-trade restrictions and embargo
Current issues related to measures for the administrative regulation of foreign economic relations between the Russian Federation and foreign partners taken to protect national markets are considered. The basic tasks are keeping balance when a good flow is strictly administrated, providing security of delivered products and controlling a constant level of federal budget income while imports are being reduced.
Key words: regulation of foreign-trade relations, administrative restrictions and embargo, licensing in international relations, sanitary and fitosanitary measures
LABOUR AND SOCIAL LAW
Fedorova M. Yu. (St. Petersburg, Constitutional Court of the Russian Federation, e-mail: ksrf@ksrf.ru) On an evaluation of social risks occurring at different stages of existence of social security obligations
A category of social risks and a structure of social security obligation as basic terms of social security law are examined. Analyzing the Constitution and legislation provisions the author comes to a conclusion that social risks are grounds for social security obligation to arise. Social risks are evaluated at the stages of existence of social security obligations as common-regulative and relative legal relations. The means of such evaluation are in particular forecasting of social and economic development of the state, individual accounting of information about secured persons, using of actuar calculations, monitoring of social and economic status of certain categories of citizens. The evaluation of social risks is considered as one of the basic methods of their management and is aimed at exercising the citizens’ right to social security.
Key words: social security, right to social security, social risk, social risks management, social risks evaluation, social security obligation
Salikova N .M. (Yekaterinburg, Urals State Law University, e-mail: tp@usla.ru) An «effective contract»: a new type of labour contracts or a new labour remuneration system?
The article deals with the problems of integration of an «effective contract» for social workers, whose labour is paid from budgetary funds. The «effective contract» should be considered a new labour remuneration system, not a new type of labour contracts. The order of putting new conditions of labour remuneration into action is analyzed.
Key words: «effective contract», «roadmap», new labour remuneration system, additional agreement
Serova A. V. (Pervouralsk, Urals State Law University, e-mail: lykasova90@rambler.ru) Non-typical employment relations
A legal category of non-typical employment relations is examined. Basic types of this kind of relations are analyzed. Provisions of Chapter 491 of LC of the RF related to distant work are critically estimated. Differences in a legal status of the person seeking for a job within the framework of typical and non-typical employment relations are defined.
Key words: non-typical employment relations, person seeking for a job, employee, distant work
Baymatov P. N. (Tyumen, Tyumen State University, e-mail: baymatov.pavel@yandex.ru) On some elements of the constitutional and legal mechanism for exercising the citizens’ right to social security in the RF
The subject of the paper is the concept and the legal nature of the constitutional and legal mechanism for exercising the citizens’ right to social security in the RF. The structure of this legal institution, its aims and functions are analyzed, the necessity of its improvement is shown. The development of certain elements of this mechanism, its influence on improving the quality of citizens’ life and construction of the social state are considered. Logical and systematic methods, analysis and synthesis, formal-legal and comparative-legal methods of cognition are used.
Key words: Constitution, social state, mechanism, social security, juridical help, low-income, volunteer, public-private partnership
PROCURACY SUPERVISION
Filipenko S. V. (Yekaterinburg, General Prosecutor’s Office in the Urals Federal District, e-mail: prnad@usla.ru) Features of acts of the prosecutor’s response
Concepts of acts of the prosecutor’s response and acts of the prosecutor’s supervision are analyzed. The author reveals basic features of acts of the prosecutor’s response as a key prosecutor’s instrument for securing the rule of law.
Key words: prosecutor, act of the prosecutor’s response, acts of prosecutor’s supervision, prosecutor’s demand
Tolstykh A. V. (Yekaterinburg, Urals State Law University, e-mail: tolstih66@mail.ru) On drafting and implementation of the prosecutor’s decision at the stage of institution of a criminal case
Basing on the prosecutor’s supervision theory the author considers the prosecutor’s decision as a mean of prosecutor’s response at the stage of delivering a decision on institution of a criminal case. The author points out that the regulation of prosecutor’s supervision over bodies of inquiry and of the preliminary investigation at the stage of institution of a criminal case is inadequate. It is mentioned that since prosecutor’s legal powers are reducing in recent years prosecutors should more effectively use available legal instruments for securing the rule of law at this stage. There are for example the prosecutor’s decision on reversal of the decision on initiation of a criminal case that was admitted unlawful and ill-founded and the decision on reversal of the decision on refusal in initiation of a criminal case.
Key words: prosecutor’s decision, communication on a crime, stage of institution of a criminal case
SPECIAL CASES
Kozachenko E. B. (Yekaterinburg, Sverdlovsk Regional Court, e-mail: uglaw@yandex.ru) False humanity, or what the special cases indicate
Application of provisions of p. 4 Art. 111 of the CC of the RF is examined. Common mistakes made by the courts when qualifying deeds of the guilty person who committed crimes under p. 4 Art. 111, Art 109 and 105 of the CC of the RF are analyzed.
Key words: sentence, judicial mistake, qualification, requalification, intent, special case
ON THE 150TH ANNIVERSARY OF COURT STATUTES 1864 AND 140TH ANNIVERSARY OF PROFESSIONAL ADVOCACY IN THE URALS
Smirnov V. N. (Yekaterinburg, Urals State Law University, e-mail: up@usla.ru) Party and state administration of advocacy in pre-war time: 1922–1940
Certain manifestations of party and state supervision over advocacy in Russia and a key role of the All-Union Communists Party (Bolsheviks) fraction in the Urals (Sverdlovsk) college of advocates are first analyzed. The author uses secret materials of 30s of XX.
Key words: college of advocates, juridical consultation, All-Union Communists Party (Bolsheviks) fraction, People’s Commissariat of Justice of the RSFSR, collectivization, appointee, Head of Presidium, arrest, repression
PAGED OF HISTORY
Yermolovich V. I. (Minsk, Republic of Belarus, Belarusian State Economic University, e-mail: Hermolovith@gmail.com) The hiring contract in Roman private law and law of Medieval European continent countries: comparative analysis
The hiring contract in Roman private law and law of Medieval European continent countries is examined. A content of the hiring contract, its application and obligatory legal relations arising out of it are analyzed. Reception of Roman private law norms by Medieval European continent countries is considered.
Key words: hiring contract, consensual contract, legal regulation, comparative analysis, Roman private law, law of Medieval European continent countries
Kochetkov V. V. (Khimki, Academy of Civil Defense EMERCOM of Russia, e-mail: vovov69@mail.ru) The legal justification of parliamentarism by the Russian constitutionalists of the early XX century
Nowadays in Russian legal science, there is a widespread belief that parliamentarism contributes to democratization of political process. The author asserts that Russian constitutionalists had a similar belief in early XX century. Legal research of parliamentarism, carried out in terms of psychological theory of law, shows that the Russian constitutionalists’ idea about immediate establishment of a parliamentary monarchy (a parliamentary republic) was utopian, because it matched nor national archetypes of legal consciousness, neither axial values of constitutionalism. The author concludes that Russian scientists should focus on implementation of norms and basic values of constitutionalism into legal consciousness of the people and the power elite, as well as into law enforcement practices of the public bodies.
Key words: parliamentarism, constitutionalism, legal consciousness, constitutional state, body of national representation, democracy
MUSEUM OF HISTORY OF SLI – USLA – USLU
Zipunnikova N. N. (Yekaterinburg, Urals State Law University, e-mail: igp@usla.ru) Administrative constructions and administrative-economic weekdays of Siberian (Irkutsk) Institute of Soviet Law in 1932