Annotations № 4 / 2015
COMPARATIVE JURISPRUDENCE
Salikov M. S. (Yekaterinburg, Urals State Law University, e-mail: kp@usla.ru) On the impact of a racial and ethnic factor on federal relations in the USA
The varying racial and ethnic composition of the US population and the impact of a racial and ethnic factor on federal relations in this country are analyzed. Different proposals on changing the composition of the American federation such as creation of new states, secession, etc., are considered.
Key words: racial and ethnic composition of the US population, federal relations, changing the composition of the American federation
Sementsov V. A. (Krasnodar, Kuban State University, e-mail: crimpro@yandex.ru) Pre-trial investigation under the new criminal procedure code of the Republic of Kazakhstan
The author explores a procedure of pre-trial investigation under the new Kazakhstan Code of Criminal Procedure adopted in January 1, 2015. In fact, the procedure lost two stages: verifying the reports of crimes and bringing a charge by the investigator. It is proved that there had been no significant reduction of the pre-trial investigation procedure.
Key words: pre-trial investigation, emergency investigations, undercover investigations, recognition as a suspect
INTERNATIONAL LAW
Lazutin L. A. (Yekaterinburg, Urals State Law University, e-mail: mp@usla.ru) Сivil war in Ukraine: some issues of non-international armed conflicts
The author wonders how the activities of the Ukraine’s armed forces and armed units of the self-declared Donetsk and Lugansk Republics could be qualified under international humanitarian law. He concludes that there is a non-international armed conflict in Ukraine, and the parties to the conflict don’t comply with international humanitarian law.
Key word: international humanitarian law, non-international, Ukraine, Geneva Conventions of 1949
Bezborodov Yu. S. (Yekaterinburg, Urals State Law University, e-mail: ruzh@usla.ru) Methods of international legal convergence
This article analyzes the processes of universalization of international legal regulation and international legal convergence of national legal systems. There is an overview of the methods of convergence (harmonization, unification and integration) that still need a comprehensive study within international law. The author suggests his own understanding of the terms «harmonization», «unification», «integration», and «convergence».
Key words: harmonization, unification, integration, convergence, universalization
CRIMINAL LAW AND PROCEDURE
Bibik O. N. (Omsk, Omsk F. M. Dostoevsky State University, e-mail: olegbibik@mail.ru) Criminal law and cultural-historical psychology: common ground
The issues of application of the Vygotsky’s cultural-historical concept in criminal law are considered. The author interprets basic concepts of criminal law, such as crime and punishment, by using the means of cultural-historical psychology. According to him, regarding a human act as crime depends on a cultural dominant, and any crime actually has a symbolic significance.
Key words: cultural-historical psychology, L. S. Vygotsky, cultural conditionality of crime and punishment, stimulus, symbol, reaction
Vinokurov V. N. (Krasnoyarsk, Siberian Law Institute of FDCS of Russia, e-mail: VinokurSiblaw@mail.ru) On the increased number of protecting (public-legal) relations and their role in criminal law
The practical importance of dividing public relations (as objects of criminal law) into protecting and protected ones is revealed. Protected relations occur between legal entities and individuals, and include personal non-property and property relations. Protecting public relations occur between legal entities and individuals, on the one hand, and the State represented by its authorities, on the other. They consist of relations concerning management activities of the State, as well as relations concerning safeguarding public security, public health and morals of the population. The author asserts that there is a reasonable trend toward increasing the number of public (protecting) relations, strengthening their role and, as a result, their prevalence over private (protected) relations in criminal law. He argues that following this trend would improve the criminal law protection.
Key words: protected relations, protecting relations, subject, property relations, public relations
Semenov V. V. (Vladimir, Vladimir Law Institute of the FSIN of Russia, e-mail: valentine_semenov91@mail.ru) Interfering with a criminal investigation: types, peculiarities and subjects
The author reveals an essence of interfering with a criminal investigation at various stages of criminal proceedings, and proposed the classification of subjects of such interfering. So, they include a person who has committed a crime, a victim, witnesses, officials who can influence the course of the investigation, a lawyer, and other persons.
Key words: interfering, crimes investigation, concealment of a crime, Criminal Procedure Code, pre-trial investigation
Davletov A. A. (Yekaterinburg, Urals State Law University, e-mail: up@usla.ru) The problem of defining a status of criminally prosecuted person in the stage of institution of a criminal case
The article discusses the issue of prosecution of criminal suspects in the stage of institution of a criminal case. The author justifies that these persons must be given a status of «suspected». This status is close but not identical to the status of a suspect. The procedure of finding a person suspected and his rights are revealed.
Key words: criminal proceedings, suspicion, suspect, suspected
CIVIL LAW AND PROCEDURE
Vasilevskaya L. Yu. (Moscow, Kutafin Moscow State Law University, e-mail: liudmila.vasilevskaya@gmx.de) The security assignment of claims: special aspects of the legal construction
The security assignment of a monetary claim and in particular special aspects of its legal construction are discussed. Identifying a place of the security assignment of claims in the system of means used for securing obligations, the author proves that the security assignment of claims could be applied strictly within a factoring contract. Using specific differences of factoring contracts, the author shows unique features of secured obligations and finds out the main aspects of the security assignment of claims.
Key words: security assignment of a monetary claim, factoring contract, means of securing an obligation, broker, client, contract about the security assignment of claims, security factoring
Nikitin A. V. (Yekaterinburg, Urals State Law University, e-mail: anikitin@olips.ru) On the legal regime of paper documents
The author tries to find out whether it is correct to consider paper documents as an object of civil rights. For this reason the author divides all paper documents into five groups according to their functional purpose. Using the classification, he concludes that recording information isn’t the sole objective of a paper document: at times it confirms some facts, properties, qualities, as well as contains emotional judgments and evaluations. Therefore, it is emphasized that, in any case, the essence of paper documents is ideal (non-material). Keeping this in mind, the author asserts that paper documents constitute a special class of things, and their ideal essence determines that many of them lack the alienability.
Key words: paper document, objects of civil rights, things, information, alienability
Volochay Yu. A. (Yekaterinburg, Urals State Law University, e-mail: vyua001@usla.ru) Protection of the owner’s right of access to property
It is proposed that there is the right of access to property in the structure of property law. Moreover, the law provides the right of access to other person’s property. The situations when the owner is able to protect the right of access to his own property are allocated as per necessity to burden other person’s property, and the methods of its protection are described. Having analyzed the Russian civil legislation and case law, the author proposes a draft of the owner’s individual lawsuit for getting access to his property.
Key words: proprietary rights; right of access; servitude; actio negatoria; vindication
Karkhalev D. N. (Ufa, Bashkir State University, e-mail: dnk001rb@yandex.ru ) Responsibility for the violation of protective obligations
The article outlines the matters of protecting civil rights and responsibility for their violation under the Russian civil legislation. According to case law, the author reveals the peculiarities of protective legal relations occurred when the damage is inflicted or the pecuniary obligation is violated. Also, he focuses on the sub-protective obligation, namely the legal relation in which responsibility for the violation of protective obligations could be realized.
Key words: civil rights protection, responsibility in civil law
Kukharev A. E. (Kharkiv, Ukraine, National University of Internal Affairs, e-mail: kukharyev@gmail.com) On the use of legal fictions in the field of inheritance
The author examines the use of fictions in inheritance relations, and gives examples of fictions stipulated by the current legislation. The ratio of legal fictions and legal presumptions in inheritance law is revealed. The article proves that declaring someone dead is a legal presumption, which is refutable.
Key words: inheritance, testator, sleeping inheritance, heir, fiction, presumption
ADMINISTRATIVE LAW AND PROCEDURE
Osintsev D. V. (Yekaterinburg, Urals State Law University, e-mail: dimios@mail.ru), Elfimova E. V. (Yekaterinburg, Ural Law Institute of MIA of Russia, e-mail: Elfimovaav@mail.ru) On control, supervision and administrative jurisdiction once again
The current legislation on state control (supervision) is far from perfect despite continuing attempts to improve it. The authors point out that different procedural forms and characteristics of regulating separate areas of control and supervisory activities, and autonomous legal positions of the prosecution authorities and courts that ought to assess the legality of control (supervisory) measures cause various grave restrictions and the violation of rights of individuals and legal entities while they are being checked. The authors’ analysis leads to the conclusion that it’s necessary to design a single unified procedural form for legislative provisions concerning the possible jurisdictional impact on subjects liable to check, and the further exercise of state enforcement measures over them.
Key words: administrative liability, administrative jurisdiction, state control (supervision), judicial control over the administrative authorities
LABOUR AND SOCIAL LAW
Aristov E. V. (Perm, West-Ural Institute of Economics and Law, e-mail: znakomyi72@mail.ru) Models of social state
The article explores a scientific dispute on the principle of state sociality as one of the fundamental principles of the constitutional order of contemporary democratic legal states. The analysis of various approaches to classifying social states is given.
Key words: social state, principle of state sociality, constitutional law, fundamental principles of the constitutional order, constitutional and legal principle
Zakharov A. A. (St. Petersburg, St. Petersburg State University, e-mail: az1507@yandex.ru) Some issues of developing a conceptual framework of the federal legislation on social protection
The article deals with the correlation between the concepts of social guarantees, measures of social support, measures of social protection in the federal legislation and scientific literature. The author proposes a criterion for distinguishing these categories that is the basis of their provision. Social guarantees are provided to public servants (or persons performing other public duties), as well as persons engaged in definite professional activities. At the same time, measures of social protection are given to citizens who have rendered special services to the State, injured persons, or to those who endure various hardships or rights and freedoms restrictions, etc. These measures are provided to above-mentioned citizens, regardless of whether they fulfill their duties under an employment contract or under a service contract. Measures of social protection include measures of social support (natural provisions), cash payments, labour guarantees. It is noted that the author’s approach to distinguishing the analyzed categories requires changes to the Russian Federation legal acts. The most appropriate solution for this matter is to adopt a codified legal act on social protection. In fact, there are so-called «social codes» in a few regions of Russia that could be taken as an example by the federal legislator.
Key words: social guarantees, measures of social protection, measures of social support, codification
LEGAL ASPECTS OF ECOLOGY
Shadrina A. A. (Yekaterinburg, Lomonosov Moscow State University, e-mail: lawyer_prof@mail.ru) The legal measures of environment protection in implementing technical regulation
The author investigates the Russian legislation on standardization and safety of production, as well as the legal measures taken in a field of environment protection. So, she sets a several research objectives: to improve the legislation on standardization and safety of production, to bring it into conformity with international law, to classify the legal measures of environmental protection. The author uses the legal, comparative legal and ontological research methods. As a result, she identifies the legislative gaps in a field of production safety, and the need to take into account interests of the national legislation while harmonizing it with international law. Besides that, a classification of the legal measures of environmental protection in implementing technical regulation is proposed. The author suggests to expand these measures and to strengthen responsibility for violation of environmental laws.
Key words: non-tariff barriers, environmental control, legal measures, product life-cycle, technical regulation, harmonization of legislation
ECONOMICS AND LAW
Dinov Stanyo (Heidelberg, Germany, Institute for German and European Company and Commercial Law at the Ruprecht Karl University of Heidelberg, e-mail: stdinov@gmx.de) The framework of the European finance and banking regulation
Weaknesses in the implementation of financial supervision, the extensive harmonization of banking laws and the financial and eurozone crises have forced the EU Member States to reform financial supervision. In 2011 the EU introduced a new financial supervision system, and in September 2012 proposals for establishing a Single Supervisory Mechanism (SSM) were revealed. The present article seeks to analyse the changes, problems and possibilities for improvement of the new financial supervision system and to give a brief account of potential long-term prospects.
Key words: Banking union, ESFS, ESRB, ESM, financial, debt crisis, reform, regulation, SRM, SSM, System Banking Supervision
EXPERTISE
Rodionova O. N. (Yekaterinburg, Urals State Law University, e-mail: uglaw@yandex.ru) Juridical linguistic indefiniteness of juridical linguistic indefiniteness
The author analyzes the legal definition of juridical linguistic indefiniteness in terms of its monosemanticity. As a result, three variants of interpretation of subpoint «b» point 4 of Methodology of anticorruption expert examinations of normative legal acts and drafts of normative legal acts are proposed. All of them allow experts to draw opposite conclusions while conducting corruption examinations of norms. So, the author suggests to replace the equivocal punctuation mark used in the wording of subpoint «b» with a text item, or to delete an extra part of the wording in order to eliminate defects of analyzed norm.
Key words: anticorruption expert examination, corruption factor, juridical linguistic indefiniteness, interpretation
ON THE 150TH ANNIVERSARY OF COURT STATUTES OF 1864 AND 140TH ANNIVERSARY OF PROFESSIONAL ADVOCACY IN THE URALS
Smirnov V. N. (Yekaterinburg, Urals State Law University, e-mail: up@usla.ru) The Great Patriotic War in the Ural lawyers’ life (continuation)
The slogan «Everything for the front, everything for Victory» had become a rule of life for many Soviet citizens, and lawyers were no exception. The author shows how the juridical defense services were adapted to the wartime needs, and mentions that lawyers took part in the Defense Fund. Also, he introduces the lawyers’ memories about their experiences on the frontlines and in the rear.
Key words: Great Patriotic War, Red Army, mobilization, front, evacuation, re-evacuation, refugees, court-martial, government loan, Defense Fund, tank column «Soviet lawyer», I. V. Stalin, Victory, Hero of the Soviet Union
PAGES OF HISTORY
Nikonorova T. N. (Moscow, Russian State University for the Humanities, e-mail: tatinikonorova@gmail.com) Bringing to party responsibility in the system of political and legal relations in the USSR (1919–1952)
The article is devoted to the institution of party responsibility in the USSR in 1919–1952, its organization and functioning. As sources of information, the author uses published documents (regulations, memoirs of nomenclature workers), as well as a range of archive records including very significant records of the Party Control Commission of the Central Committee of the CPSU(b). Key characteristics of the party penalizing policy are discerned. The lack of a clear separation between control subjects of Party and Soviet rule-making authorities had determined the situation, when the institution of party responsibility became a universal tool of fight against various deviances, especially economic abuses. The author describes the procedure of bringing to party responsibility, and notes that many procedures had been borrowed from the Soviet judicial proceedings. The problem of priorities and distinctions between the party and the legal (criminal) responsibility is highlighted.
Key words: party responsibility, party rule, party punishment, Central Control Commission, Party Control Commission
MUSEUM OF HISTORY OF SLI – USLA – USLU
Zipunnikova N. N. (Yekaterinburg, Urals State Law University, e-mail: igp@usla.ru) «The right way of searching for new methods of teaching», and «the staffing structure is virtually stable, there are no rolling stones anymore »: Siberian (Irkutsk) Institute of Soviet Law in 1933
CHRONICLE
XIII International Congress «Blishchenko Readings» (Moscow, April 11, 2015)
The review is devoted to the traditional scientific event – XIII annual international scientific and practical conference «Blishchenko Readings» held at the Peoples’ Friendship University of Russia. This conference was given a status of Congress due to its impressive scope. In a first part of the review, the authors focus on the work of several sections related to the new challenges and traditional values of international law, international problems of African states, development of integration processes in Europe and, furthermore, to highly relevant issues of international space law, air law and the law of the sea.
Key words: conference, international congress, I. P. Blishchenko, international law department of the Peoples’ Friendship University of Russia