Annotations № 3 / 2015
METHODOLOGY OF LAW
Kestemont L. (Leuven, Belgium, Institute for Social Law KU Leuven, e-mail: lina.kestemont@law.kuleuven.be) A typology of research objectives in legal scholarship
In the past legal scholarship has been struggling to authorize its position as a scientific discipline. One crucial aspect of this debate involves methodology. An explicit research methodology is essential to sciences, allowing scholars to perform and describe their research in an unambiguous, objective and repeatable manner. Legal scholars evidently use certain research techniques but these generally lack a detailed description and justification. Therefore, legal scholarship is lacking an explicit methodological framework. Legal scholars have become increasingly aware of the importance of an explicit methodology, and today there is a strong call for in-depth research into methods for legal research. This article aims to answer this call and take a first step towards the creation of an explicit methodological framework for legal scholarship by providing an overview of the different types of research objectives in legal research. This overview is part of a more extensive typology on «Research Objectives and Research Methods for Traditional Legal Scholarship» created within the framework of the author’s PhD project.
Key words: legal research, research objectives, methods
PUBLIC USSUES AND POLITICAL SCIENCE
Chupina G. A., Sherpayev V. I. (Yekaterinburg, Urals State Law University, e-mail: sherpaev@list.ru) Nation: the identity matrix
The issue of national identity is considered in the regional and civilizational dimensions. Concepts of collective personality as a national self-image, national identity, national self-determination, national ideology, and a crisis of national identity are analyzed. The authors conclude that the increasing globalization influences the national self-determination process and entails the identity crisis in terms of civilization. As a result, there are excessive manifestations of nationalism, as well as the need for a humanistic alternative.
Key words: identity, identification, individual and group (collective) identity, collective (national) self-image, national character, national mentality, national sovereignty, nationalism, crisis of identity, cultural and civilizational crisis
Puchkov O. A. (Yekaterinburg, Urals State Law University, e-mail: poa@ru66.ru) A legal basis of the state environmental policy of the Russian Federation
There is the analysis of a legal basis of the RF state environmental policy within the current social and economic changes. The author examines characteristic features of the state ecological policy, and asserts that the Russian law ensures an optimized interaction between society and nature in order to protect the environment. Steps designed to improve the ecological legislation are proposed.
Key words: state ecological policy, ecological legislation, environmental protection, natural areas
Musatov Ph. V. (Magnitogorsk, Urals State Law University, e-mail: philip_mus@mail.ru) On the evolution of legal constructions of the state
In the domestic jurisprudence, there is a need for resuming a legal discourse concerning the state that has almost completely replaced by social and historical or political reasoning. Meanwhile, there were different attitudes to the state in European history, and consequently different legal constructions of the state were applied. In the Middle Ages, the state was commonly regarded as the object of the seigneur’s property in terms of a patrimonial theory. In Modernity, since its centralization, the state was considered a monarch’s and later (after the French Revolution) a nation’s personification. In both cases, the state continued to be interpreted as the object, however, the subject of law had changed. Just in the middle of 19th century, due to C. F. Gerber in Germany a construction of the state as the subject of public law was formed. According to it, a monarch and a nation were announced as institutions of the state. Nevertheless, the legal status of its citizens wasn’t determined. Therefore, the scholars (in particular N. M. Korkunov) proposed a new construction of the state as a legal relationship in order to address a seeming defect of the previous legal construction. As it follows from it, citizens were declared the subjects of the state power. The author points out that there were no necessity to create a new legal construction as long as a legal status of citizens can be clarified if the state is recognized not only the subject of law, but a corporation.
Key words: legal constructions of the state, object of law, territory, state institution, subject of law, corporation, citizen, legal relationship
ECONOMICS AND LAW
Audit M. (Paris, France, University of Paris Ouest – Nanterre La Défense, e-mail: mathias.audit@wanadoo.fr), Forteau М. (Paris, France, University of Paris Ouest – Nanterre La Défense, e-mail: mforteau@u-paris10.fr) Investment arbitration without BIT: toward a foreign investment customary based arbitration?
Arbitration without privity is traditionally viewed as based on bilateral investment treaties (BITs), or less often on multilateral treaties or national laws. But the mechanism is becoming so common that there is room for assessing whether arbitration offers by host states toward foreign investors have become an international customary rule. The aim of this paper is to assess the eventuality of such a radical view of the arbitration offer.
Key words: arbitration, investment arbitration, arbitration agreement, investment, investor
Ispolinov A. S. (Moscow, Moscow State University, e-mail: ispolin@lexinvest.ru) Where is the present investment arbitration heading toward?
The author considers the current matters of investment arbitration, explains its origins and risks that might accompany it. He submits that the model of international commercial arbitration has been initially borrowed for investments dispute settlement. However, this model proved to be extremely unsuitable for the disputes where investors appeal against general regulatory measures taken by states. There are several proposals for the reform of investment arbitration.
Key words: investment arbitration, investment agreements, national courts, reforms of arbitration
Zakharov E. A. (Yekaterinburg, CJSC «Deloitte and Touche CIS», e-mail: eugene.zakharov.cz@gmail.com) Legitimation of the concept of the permanent establishment of a foreign organization for VAT purposes: Experience of the Russian Federation and the European Union
Basing on the tax legislation of the Russian Federation and the European Union, the author considers a legal status of the permanent establishment of foreign organizations in VAT legal relations. He substantiates the need for stipulating the concept of the permanent establishment of a foreign organization for VAT purposes in domestic tax laws, whereas, legislator must define all main elements of any task in order to collect it. As an example, the EU’s experience in handling the given issue is revealed.
Key words: VAT, subjects of taxation, permanent establishment of a foreign organization, European tax law, economic integration
INTERNATIONAL LAW
Kayumova A. R. (Kazan, Kazan (Volga region) Federal University, alfiya_kaumova@inbox.ru) The perspectives of codifying universal jurisdiction of the states
The principle of universality is the most controversial among the basic principles of exercising criminal jurisdiction by the states. As known, it provides a possibility of criminal prosecuting the persons suspected of committing crimes under international law regardless of where they occurred, nationality of an offender and a victim. At the international level, there are no clear criteria for the application of this principle, no unification of national laws relating to the given matter, no uniform practice of its application, and all of these raises serious concerns of international community. The paper describes the formation of the principle of universality, the issues associated with its current international application and codification.
Key words: jurisdiction, principles of jurisdiction, universal jurisdiction; codification, responsibility, United Nations, UN International Law Commission, Sixth Committee of UNGA
Mammadov U. Yu. (Kazan, Kazan (Volga region) Federal University, umammado@ksu.ru) Protection of the natural environment during armed conflicts in terms of international humanitarian law
The article attempts to examine the certain issues of the natural environment protection during armed conflicts in the context of existing norms and principles of contemporary international humanitarian law, and to put forward some proposals. The author points out that international legal regulation related to the natural environment protection during armed conflicts is quite inadequate, and asserts that there is a need for further improvement of the relevant norms of international humanitarian law and reinforcement of monitoring their compliance.
Key words: international law, armed conflicts, international humanitarian law, natural environment protection, law of armed conflict
Bushmelyova D. B. (Yekaterinburg, Urals State Law University, e-mail: mp@usla.ru) International educational integration
The article deals with the concept of integration in international law. The author tries to find out whether the term of integration could be applied to educational integration processes. Besides, the author gives the definition of educational integration and lists its features.
Key words: integration, educational integration, Bologna process
CONSTITUTIONAL LAW AND PROCEDURE
Nesmeyanovа S. E. (Yekaterinburg, Urals State Law University, e-mail: nesmeyanova@yandex.ru) International treaties as an object of constitutional judicial control
The article reveals the issues of constitutional judicial control development in Russia, in particular matters of expanding the constitutional justice body’s authorities for monitoring of the constitutionality of international treaties that have not yet entered into force. The author analyzes the legal position of the RF Constitutional Court that outlined procedure features of verifying the constitutionality of international treaties that have not yet entered into force. Suggestions for expanding the sphere of compulsory preliminary constitutional control are made.
Key words: international state obligations, constitutional judicial control bodies, constitutional courts’ competence, monitoring of the constitutionality of international treaties
Golovkova A. Yu. (Yekaterinburg, Urals State Law University, e-mail: s.2610@yandex.ru) On regulating the institute of substantiation and proofs in law of constitutional judiciary procedure
The article attempts to denote the place of substantiation and proofs as a complex legal institution in the structure of law of constitutional judiciary procedure. The author analyzes substantial and formal features inherent to this legal institution, and emphasizes the complexity of its legal regulation. Also, the article determines its theoretical and practical relevance to law of constitutional judiciary procedure. There are several proposals for amending the Federal constitutional law on the Constitutional Court of the Russian Federation.
Key words: legal institution, substantiation, proofs, law of constitutional judiciary procedure, legal regulation
Panteleyev V. Yu. (Yekaterinburg, Charter Court of Sverdlovsk region, e-mail: ustav-court@mail.ur.ru) A constitutional and legal basis for ensuring consumer market security in the Russian Federation
The author researches a legal basis for ensuring security as a complex phenomenon and concludes that there are no proper fixing of a basis for ensuring consumer market security, and no delimitation of powers between the Russian Federation and its constituent entities in the relevant sphere. Besides that, he proves a need for complex regulation of the given social relations.
Key words: Constitution, security, consumer market, consumers’ rights, legitimate interests
CRIMINAL LAW AND PROCEDURE
Korsakov K. V. (Yekaterinburg, Urals State Law University, e-mail: korsakovekb@yandex.ru) The principle of equivalent retribution in the current Russian criminal legislation
The article discusses a fundamental penological principle of equivalent retribution for crime, which was embodied in the legislation, penal practice and doctrine. Basing on the analysis of doctrinal views and criminal laws, the author proposes a new edition of Part 2 of Article 43 of the RF Criminal Code. He alleges that the principle of equivalent retribution is a link between eternal ideas of justice and criminal punishment. Retribution is an immanent essence of criminal punishment manifested in its specific content which is encumbrances, restrictions and deprivation of reward. However, in nowadays legal world, according to author’s opinion, it shouldn’t be treated as an end in itself, after all, it does not deny or even hinder the initiation and prosecution of the utilitarian objectives.
Key words: criminal punishment, retribution, taleon, criminal reprisals, social response to crime, origins of criminal punishment
ADMINISTRATIVE LAW AND PROCEDURE
Elfimova E. V. (Yekaterinburg, Urals Law Institute of MIA of Russia, e-mail: elfimovaav@mail.ru ), Nikonova Yu. Sh. (Yekaterinburg, Urals Law Institute of MIA of Russia, e-mail: uliy-nikonova@mail.ru) On the challenges of conducting investigations of traffic accidents
The authors assess the activities of traffic police officers conducting the administrative investigations of traffic accidents. They argue that these officials should be given a broader authority for obtaining and collecting the facts and evidence for the administrative case.
Key words: administrative investigations, protocol of inspection of the administrative offence scene, obtaining and collecting the facts and evidence
Bezrukov Yu. I. (Yekaterinburg, Urals State Law University, e-mail: ppsea@usla.ru) The legal and tactical issues of inspection of a traffic accident scene during the proceedings for administrative offences
The author asserts that it would be useful to incorporate experiences of forensics and other sciences in administrative procedure. For instance, the application of tactical options developed in forensics could make inspection of a traffic accident scene more efficient. The ways of fixing a traffic accident scene obtained during the inspection are investigated.
Key words: traffic accident, inspection of the traffic accident scene, proceedings for administrative offences, ways of fixing the traffic accident scene
QUESTIONS OF INVESTIGAION AND OPERATIVE RESEARCH
Dolinin V. N. (Yekaterinburg, Urals State Law University, e-mail: ppsea@usla.ru) The characteristics of the flagrante delicto tactical operation used for investigation of bribery
The author points out the peculiarities inherent to investigation of bribery in the initial stage. The flagrante delicto tactical operation, well prepared and successfully carried out, is an efficient mean of discovering such offences and exposing bribe-takers.
Key words: tactics, operation, detention, bribery
Permyakov S. V. (Magnitogorsk, Urals State Law University, e-mail: seeerg05@mail.ru) The tactics of participation of lawyers in conducting interrogation and confrontation
This article discovers the main tactical means and options that could be applied by lawyers carrying out the investigative acts such as interrogation and confrontation.
Key words: tactics, strategy, defending tactics, evidence, investigative acts, organization of tactical options
SPECIAL CASES
Korkin A. V. (Yekaterinburg, Urals Law Institute of MIA of Russia, e-mail: adm_pravo@ural-mvd.ru) Is a legal request legal?
The article touches upon the activities of Sverdlovsk Region traffic police on bringing drivers of vehicles to account for administrative cases under Part 1 of Article 19.3 of the RF Administrative Code. These drivers have previously get the request to remove the circumstances that led to bringing them to account for driving a vehicle that was equipped with windows light transmission of which does not meet the requirements of the Customs Union Technical Regulation «On the safety of wheeled vehicles». The author concludes that these practices don’t fully correspond to current laws.
Key words: administrative responsibility, driving, light transmission of windows, disobedience of a lawful order or request of a police officer
EXPERTISE
Bugaev K. V. (Omsk, Omsk State Transport University, e-mail: kbugaev@yandex.ru) Research of R. S. Belkin’s «Forensics Training Course»: analysis of descriptors
One of the large professor R. S. Belkin’s works is investigated with a method of the descriptors analysis. The authors underlines that density of descriptors in the «Forensics Training Course» is less than in other works by R. S. Belkin. He proves that it would be more correct to assess the work content basing on gross weight of descriptors rather than on quantity of printed characters. Also, he points out the paragraphs with sharper transitions of author’s thought and with higher concentration of the author on the main issues. The most specific paragraphs are revealed.
Key words: R. S. Belkin, forensics, scientometrics, bibliometrics, science of science, descriptors, text density
PAGES OF HISTORY
Parsukov В. А. (Chelyabinsk, South Urals State University, e-mail: parsukov77@mail.ru) The organization and conduction of explorative and intelligence works in separate corps of border guards
Having analyzed the legal acts that regulated intelligence activities in separate corps of border guards, the author reveals the organization of intelligence works on combating smuggling in border districts, brigades, divisions (detachments) of border guards of the Russian Empire in the late 19th – early 20th century.
Keywords: separate corps of border guards, regulation, border surveillance, intelligence, agent, informer, confidential assistance
LEGAL HERITAGE
S. S. Alekseev on the CPSU’s impact on legal development of soviet society
PAGES FROM INVESTIGATOR’S DIARY
Drapkin L. Ya. (Yekaterinburg, Urals State Law University, e-mail: ruzh@usla.ru) Page sixteen. «Little episodes of a large case» (continuation)
CHRONICLE
The round table «Burning issues related to legal regulation of financial monitoring in the Russian banking system»
LIBRARY
Review of the book: International Law: Textbook for bachelors / ed. by. K. A. Bekyashev. – Moscow: Prospect, 2014. – 352 p.