Annotations № 5 / 2015

THEORY OF STATE AND LAW

Usmanova E. F. (Saransk, Mordovian Institute for the Humanities, e-mail: mgi-tgp@rambler.ru) The communicative function of legal culture

The category of «legal culture» is viewed through the lens of the communication theory. The author explores the content of the communicative function of legal culture and notes that this function is implemented through the legal communication. As stated, law cannot exist outside the entities that have the communicative capacity and create rules while communicating. It’s concluded that the legal communication as an embodiment of the communicative function of legal culture is a process of digesting the legal information by legal entities and transferring it from law-making authorities to law enforcers.

Key words: legal culture, law, communicative function of legal culture, legal communication

Sharifov M. Sh. (Moscow, Russian Academy of Advocacy and Notaries, e-mail: sharifov_mekhti@yahoo.com) The current institutional forms of engagement between the state and civil society

The article notes that engagement between the state and civil society is not competing but even leads to establishing certain civil society institutions tasked with discharging the public authorities’ duties as well as ensuring private interests. The experience of creating certain mechanisms of engagement between the public authorities and civil society in different countries is revealed. The Russian state gradually delegates a part of the public authorities’ duties to non-state actors. The author describes in detail the statutory organizational and legal forms of engagement between the state and civil society, i. e. a state corporation, an autonomous institution, public-private partnership, social forums and public councils. He also claims that involving the self-regulatory organizations in governance, especially of financial, banking sectors, resolving business-related disputes, is a promising form of engagement between the state and civil society. Particular emphasis is given to a few special types of the self-regulatory organizations, i. e. Cossacks and arbitral tribunals. Some features of national minorities and Euroregions as self-regulatory units are enumerated.

Key words: state, civil society, non-governmental organizations, state corporation, autonomous institution, public-private partnership, social forums, public councils, self-regulatory organizations, Euroregions, public corporations, autonomous ethnic cultural organization

Puzhayev V. V. (Nizhny Novgorod, Lobachevsky Nizhny Novgorod State University, e-mail: notionn@mail.ru) On the structure of legal regimes

The author investigates one of the inadequate issues in a general theory of state and law, namely the structural arrangement of legal regimes. According to studies and legislative provisions, he highlights the place and role of legal restrictions in functioning of legal regimes. Using the system approach as well as methods of the analysis and synthesis, the author defines the complicated nature of legal regimes. It’s concluded that the legal restrictions (due to their intrinsic attributes) should be referred to the level of defining essential characteristics of legal regimes where legal means are accumulated. The stated legal means influence the final definition of a certain legal regime as «soft» or «tough», favourable or unfavourable for the interests of a legal entity. The author formulates general requirements which can be applied to the structure of restricting legal regimes in order to optimize and intensify their favourable regulating impact on the legal order of social relations and on the protection and accommodation of the interests of individuals, society and the state.

Key words: legal regime, structure of legal regimes, legal means, legal restriction, legal prohibition, efficiency of legal regulation

CONSTITUTIONAL LAW AND PROCESS

Khudoley K. M., Khudoley D. M. (Perm, Perm State National Research University, e-mail: dkhudolej@yandex.ru) A municipal area or an urban district?

The formation of urban districts within administrative areas is investigated. The authors use a set of scientific methods, including dialectic and general scientific methods (analysis, synthesis, induction, deduction), as well as specific scientific methods (legalistic, comparative-legal). Actually there are no accurate and exhaustive legislative guidelines regulating the territorial boundaries of urban districts, forms of the transformation and abolition of municipalities; moreover, local political and economic elites persistently seek to preserve the single tier management system developed over the decades. As a result of these blemishes, within administrative areas of some RF constituent entities, there are urban districts that consist of the large not urbanized territories with a poorly developed transport, social, economic infrastructure and without any common development goals. The authors conclude that the bias towards municipalities’ consolidation in many RF constituent entities is justified and caused by ignoring of the vertical command relations in former areas. At the same time they point out the need to take into account the town-planning, economic and geographical, socio-demographic factors while transforming municipal areas into urban districts, otherwise, all these transformations are fictitious and turn into revising of powers by local elites.

Key words: municipal area, urban district, urban settlement, transformation of municipalities, abolition of municipalities, territorial bases of municipalities

Travnikov O. N. (Kurgan, Kurgan State University, e-mail: Pedanov25@mail.ru) On the powers that constitute the right to information

The author, using the construction of a subjective right, points out and describes in detail the powers that constitute the right to information. He focuses on the interests ensured by these warrants, and enumerates the legal entities’ rights and duties necessary for satisfying the ensured interest. There is a list of the most important powers: the right to free information search, the right to assess to «information centers», the right to access to information held by public authorities, the right to require reports on undertaking the responsibilities assigned to public authorities; the right to receive reliable information about products and services, the right to receive reliable and unbiased information about the most important social and political events.

Key words: right to information, power, information, search, access, providing reports

INTERNATIONAL LAW

Yee S. (Wuhan, Chine, Wuhan University China Institute of Boundary and Ocean Studies and Institute of International Law, e-mail: sienho@chinesejil.org) The international law of co-progressiveness: the descriptive observation, the normative position and some core principles

The author suggests a new concept of the international law of co-progressiveness as a current state of international law and international relations, and describes its general normative background. This law is characterized by a spirit of being all-encompassing, preoccupied with advancements at an appropriate speed in moral and ethical terms more than in other respects and having human flourishing as its ultimate goal. The basic principles of the international law of co-progressiveness as well as conditions of their implementation are disclosed.

Key words: international law, principles of international law, co-progressiveness, co-operation, co-existence

Tolstykh V. L. (Novosibirsk, Novosibirsk State University, e-mail: vlt73@mail.ru) Functionalism: a theoretical basis and critical assessment

The article discusses the concept of functionalism, which forms the ideological fundamentals of European integration. The author analyzes the works of founders of functionalism (D. Mitrani and E. Haas) and formulates its key postulates. He also defines the vulnerabilities of this concept: the lack of an ontological basis, ignoring of the national issue, incompatibility of the technocracy and the common good. It is concluded that the blind use of functionalist models for designing the integrative communities among former Soviet states is inappropriate.

Key words: functionalism, international relations, international law, integration

COMPARATIVE JURISPRUDENCE

Knyasev D. V. (Tomsk, Russian University of Justice (Western-Siberian branch), e-mail: kdv1979@inbox.ru) Civil justice reform in Canada

The overriding objective of the article is to discover the main directions of civil justice reform in Canada as a whole and its provinces in particular. The author outlines that the significant transformations related to the Canadian civil procedure were mostly the result of difficult access to justice caused by its high cost, delays and the complexity of the system and laws. The adversarial nature of the Canadian civil procedure is considered to be a deep reason of the mentioned problems (similar to other common law countries). There are five main areas of civil justice reform: proportionality, judicial expertise, point-of-entry assistance, discovery and case management. The research results could be useful for a further analysis of the Canadian civil procedure and its reform, for comparative studies of civil proceedings, and also could be taken into account in preparing the reform of the Russian civil procedure.

Key words: civil procedure of Canada, civil justice reform, adversarial, proportionality

Aristov E. V. (Perm, West-Ural Institute of Economics and Law, e-mail: znakomyi72@mail.ru) Canada as a welfare state: constitutional-legal research

The article investigates the features of the welfare state model implemented in Canada, and describes its start-up period. The guarantees of the welfare state enshrined in the legislation of Canada are analyzed.

Key words: welfare state, constitutional law, basis of a constitutional order, constitutional-legal principle of the welfare state

CRIMINAL LAW AND PROCEDURE

Yashkov S. A., Bykova E. G. (Yekaterinburg, Academy of the Investigative Committee of the RF (Yekaterinburg branch), e-mail: uc.ural@mail.ru) A criminal legal assessment of the actions of academic staff who receive bribes while taking examinations

According to certain court decisions, the authors seek to find out whether academic staff should be recognized as officials; what article or conjunction of articles of the RF Criminal Code should be applied to qualify the actions of examiners who take bribes.

Kew words: official forgery, bribe, lawful actions, unlawful actions, academic staff, student’s record-book, examination record

Kokurin G. A. (Yekaterinburg, Urals State Law University, e-mail: kokyrin1952@yandex.ru) The legal regulation of operative and technical measures

The matter of the legal regulation of certain operational and technical measures, i. e. implicit audio- and video-recording, implicit video-documenting, are revealed. The author is convinced that the provisions on the use of special technical means should be enshrined in the Federal Law on Operative Investigation Activity.

Key words: operative investigation activity, operative and technical measures, operative investigation measures, implicit audio-recording, implicit video-recording, implicit video-documenting, observation, proving

CIVIL LAW AND PROCEDURE

Stepanishcheva A. M. (Orenburg, Kutafin Moscow State Law University (Orenburg Institute – branch), e-mail: karpova_ann@inbox.ru) Culpa in contrahendo in European Union law: the content, problems of qualification and regulation

The obligation to negotiate in good faith constitutes the essence of cross-border precontractual relations. The breach of this obligation is a basis for precontractual liability. These relations are mostly governed by national legislation, and only in European Union, there is the Regulation that unify the conflict regulation of culpa in contrahendo. The article is devoted to the determination of the law applicable to precontractual liability, and reveals the features of qualification of this institute.

Key words: culpa in contrahendo, bad faith, non-contractual obligation, lex contractus in negotio

Bort A. P. (Odessa, National University «Odessa Academy of Law», e-mail: apbort@ukr.net) The correlation of contractual and non-contractual statutes

The article discusses one of the essential issues of the conflict regulation of contractual relations, namely the correlation and interaction of a contractual statute and non-contractual statutes: tort, unjust enrichment, culpa in contrahendo, etc., which have a close relationship with the content of contractual obligations. It’s important to find out whether the set of facts has a contractual nature in order to introduce a distinction between these statutes. The author underlines that the scope of contractual statute is being extended due to the functional understanding of contractual obligations.

Key words: contractual statute, foreign trade agreement, tort statute, conflict regulation, unjust enrichment, culpa in contrahendo

Matsakyan G. S. (Moscow, Kutafin Moscow State Law University, e-mail: goar.matsakyan@gmail.com) Usufruct and servitude: the common and distinctive features

The author explores the provisions of a draft law on amendments to the RF Civil Code which particularly concerns the limited property rights (including usufruct) previously unknown to Russian legislation. The common and distinctive features of usufruct and servitude are identified and analyzed; their legal nature and specificity are disclosed.

Key words: limited property rights, usufruct, servitude, right to other’s property, encumbrance, legal nature

ECONOMICS AND LAW

Kuznetsova O. A. (Perm, Perm State National Research University, e-mail: kuznetsova_psu@mail.ru) The illegal power outage: the notion and types

The article is devoted to the illegal power outage as a civil offence. The notion of «power outage» is defined and compared to the notions of «power limitation» and «power cut». The author draws a distinction between the illegal outages occurring as a result of legal regulation of power consumption, and the illegal outages occurring not as a result of such regulation. It’s shown that paragraphs 1 and 2 of Article 547 of the RF Civil Code could be applied in different ways when the illegal power outage occurs. The empiric methods of comparison, description, interpretation, as well as the theoretical methods of formal and dialectical logics are used.

Key words: power outage, power limitation, power cut, illegal power outage, regulation of power consumption, energy supplying organization’s liability

Zhmulina D. A. (St. Petersburg, St. Petersburg State University, e-mail: commlaw@ jurfak.spb.ru) Material terms of the agreement on public-private partnership

For the first time in the scientific literature, the significant features of material terms of the public-private partnership agreements are revealed. The comparative legal analysis of the content of material terms of such agreements under the laws of Russia, CIS countries, Europe and South America is performed; on its basis the conclusion about the ways and methods of improving the Russian legislation is made.

Key words: public-private partnerships, public-private partnership agreement, concession agreement, material terms

Ilyin A. V. (St. Petersburg, St. Petersburg State University, e-mail: Anton.Ilyin@ksrf.ru) The legal nature of grants for equalizing budget sufficiency

The legal content of grants as a form of budget expenditures is disclosed. The author discovers what one should keep in mind to determine the level of budget sufficiency of the RF constituent entity. It is proved that the obligation to provide grants for equalizing budget sufficiency arises from the need to render basic public services for all citizens, regardless of where they live in the Russian Federation.

Key words: inter-budgetary transfers, grants, budget sufficiency, rights to public services

LABOUR AND SOCIAL LAW

Ramankulov K. S. (Bishkek, Kyrgyzstan, Kyrgyz National University named after Jusup Balasagyn, e-mail: ramaks65knu@mail.ru) The legal regulation framework of labour: the structure and system

The systemic approach to the legal regulation framework of labour is applied. The author explores the structure of this framework and indicates its objective, subjective and socio-psychological mechanisms (or systems); their brief description is provided.

Key words: legal regulation framework of labour, system, labour market, labour management

LEGAL HERITAGE

On the 70th anniversary of the International Military Tribunal (N. N. Polyanskiy «On the Nuremberg Trials»)

CHRONICLE

XIII International Congress «Blishchenko Readings» (Moscow, April 11, 2015) (continued)

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 second part of the review, the authors focus on the work of several sections related to the pressing issues of international humanitarian law, cooperation between States in the area of human rights protection, international regulation of migration flows. The participants of the Congress also debated on the urgent matters of public international law, international criminal, environmental, economic, sport law.

Key words: conference, international congress, I. P. Blishchenko, international law department of the Peoples’ Friendship University of Russia

LIBRARY

Review of the book: Krasheninnikov P. A. The Twelve Apostles of law. – Moscow: Statut, 2015. – 223 p. (Jurists who changed the world, society and the state)

Review of the book: Hans Kelsen: the pure theory of law, justice and natural law / Translated from German, English, French; compiled and introductory article by M. V. Antonov. – St. Petersburg: «Alef-Press» Publishing House, 2015. – 704 p.