Annotations № 2 / 2016
PUBLIC ISSUES AND POLITICAL SCIENCE
Vasilyev A. A. (Barnaul, Altai State University, e-mail: anton_vasiliev@mail.ru) The social value and urgency of the Russian conservative legal ideology
The article analyzes the concept of conservative stabilization as a part of the domestic conservative ideology. The author shows the background and ideological understanding of the conservative stabilization course in the Russian Empire. He releases the strengths and weaknesses of this course and proposes to follow its good practices in order to deal with the crisis in Russia today.
Key words: conservatism, stability, protective policy, right, Russian Empire, tradition
METHODOLOGY OF LAW
Perevalov V. D., Khazanov S. D. (Yekaterinburg, Urals State Law University, e-mail: admp@usla.ru) On the methodological basis for evaluating the performance of anti-corruption measures
The article deals with the legal and methodological basis for creating the system of performance evaluation of the public authorities’ and civil society institutions’ anti-corruption policy. It explores factors that influence the performance of various anti-corruption measures and proposes the ways to legitimate the indicators and criteria for the performance of anti-corruption activities.
Key words: corruption counteractions, anti-corruption policy, corruption risks evaluation, performance of anti-corruption measures
INTERNATIONAL LAW
Kembayev Zh. M. (Almaty, Republic of Kazakhstan, KIMEP University, e-mail: kembayev@kimep.kz) Regional integration in Eurasia: the main features, problems and prospects
The article considers the history of the development of regional integration processes in Eurasia and outlines their main characteristics. In particular, the article argues that, since the beginning, the Eurasian integration aimed at building advanced (or deep) forms of economic regional integration associations (i. e. customs union and, subsequently, common market and economic union). Yet the Eurasian integration is not a purely economic project as its development has been primarily predetermined by military and political factors. Also, the article analyzes the major problems of the Eurasian integration such as the lack of effective supranational bodies, competition of other geopolitical forces as well as the absence of a comprehensive participation of the EAEU in global economic integration processes under the WTO framework. The author formulates proposals for addressing these problems and contemplates on the prospects of Eurasian integration.
Key words: Eurasian Economic Union, Eurasian Economic community, Collective Security Treaty Organization, Commonwealth of Independent States, customs union, single economic space, European Union, Silk Road Economic Belt, Shanghai Cooperation Organization, World Trade Organization
INTERNATIONAL PROTECTION OF HUMAN RIGHTS
Likhachev M. A. (Yekaterinburg, Urals State Law University, e-mail: mp@usla.ru) A place of the European Court of Human Rights judgments within the framework of the RF Constitutional Court rulings of 2013 and 2015 and the subsequent legislative amendments
The article analyzes two outstanding rulings of the RF Constitutional Court of 2013 and 2015 concerning the execution of judgments of the European Court of Human Rights by a state. The author describes gradual changes in the Constitutional Court’s position on this matter taking into account the legislative amendments of the last few years. Thus, he disproves the common belief that the priority of international law over national law has been undermined in the Russian legal system.
Key words: international law, judgment of the European Court of Human Rights, convention-constitution conflict, Constitution supremacy
CONSTITUTIONAL LAW AND PROCEDURE
Bezrukov A. V. (Moscow, Academy of Management of Ministry of Internal Affairs, e-mail: abezrukov@bk.ru) Legal order and security: the nature, correlation and constitutional and legal dimension
Using the legislation and doctrine, the author undertakes the comprehensive research on the concepts of legal order and security, their socio-legal characteristics, correlation, similarities, differences, and types in order to discover the constitutional and legal nature of these two categories. He draws special attention to socio-legal characteristics of legal order, its importance, constitutional and legal content, correlation with other adjacent categories. The author concludes that there is a close dialectical relationship between legal order and security; they are both socially determined, they have almost identical subject areas and subject structure, basically the same constitutional and legal framework, purpose, and constitutional content.
Key words: legal order, social order, public order, global order, security, public security, national security, constitutional security
Dyakova E. G. (Yekaterinburg, Institute of Philosophy and Law of the Russian Academy of Science (Ural branch), e-mail: gf-urfo@bk.ru), Trakhtenberg A. D. (Yekaterinburg, Institute of Philosophy and Law of the Russian Academy of Science (Ural branch), e-mail: cskiit@yandex.ru) Public councils attached to executive bodies: the reception of federal law at the regional level (using the example of the Ural Federal District)
There is an unparalleled study on the reception of federal law by the legislation of federal entities constituting the Ural Federal District. The authors explore regional laws on public monitoring insofar as they regulate the formation of public councils which are the actors of public monitoring. Also, they investigate regional legal acts on certain mechanisms of the public councils formation. It is concluded that the reception of federal legal innovations at the regional level has just begun: actually, the regional legislation doesn’t reflect a federal trend toward strengthening the independence and autonomy of public councils, as well as a role of the Public Chamber in their formation.
Key words: public councils, public chambers, public control, civil society, legal framework
Malinova A. G. (Yekaterinburg, Urals State Law University, e-mail: malinova@inbox.ru) The right to life before birth: the debate on fetocide
The article touches upon the legal and ethical legitimation of fetocide operations under the legal provisions establishing the right to life before and after birth. The author analyzes the conflicts in legal regulation of the use of assistive reproductive technologies and asserts that, in the protection of child rights, it is necessary to take into account a close relationship between the right to life and the right to live in dignity.
Key words: assistive reproductive technologies, rights of the child, right to life, fetocide, embryo
Trofimova G. A. (Irkutsk, Research association «The legal initiative», e-mail: Trofimova_Galy@mail.ru) On the limits of parliamentary freedom
The scope of parliamentary freedom is determined by the mandate (imperative or free), that is given to deputy according to law, and by additional safeguards introduced for him (i. e. immunity and its component – indemnity or the right not to be responsible for the expressed opinion or voting position). Today, there is no any scientific research or unambiguous legal interpretation of the relevant elements of the deputy’s legal status. Therefore, the author attempts to investigate them and sets out her own vision of the most controversial issues concerning the limits of parliamentary freedom.
Key words: deputy, parliamentary immunity, right not to be responsible, inviolability, free mandate, imperative mandate, testimonial immunity, deprivation of mandate, freedom of parliamentary activity, party dependence
CRIMINAL LAW AND PROCEDURE
Shkredova Eh. G. (Smolensk, Smolensk University for Humanities, e-mail: evashkredova@mail.ru) Consideration of the nature and degree of public danger of a crime for the purpose of sentencing
The author analyzes the judges’ opinions and court sentences in order to reveal the characteristics of the nature and degree of public danger of a crime. She mentions difficulties in determining the nature and degree of public danger of a crime, a broad range of opinions on the factors that influence these two categories, as well as the similar ambiguity among legal practitioners. All of these, in her opinion, are a common cause of unjust sentences. The article concludes by proposing a possible way to resolve this problem. In particular, it is appropriate to stop dividing public danger into its nature and degree and to take into account the public danger as a whole for the purpose of sentencing. Thus, it would be necessary to amend the RF Criminal Code.
Key words: justice, nature and degree of public danger of a crime, punishment
Mezhenina E. V. (Yekaterinburg, Urals State Law University, e-mail: up@usla.ru) Property seizure as a restriction of property rights in criminal proceedings in Russia
The article is devoted to the issues of ownership, which sometimes must be addressed under criminal proceedings. It considers the matters of confiscation of property and its further legal fate in criminal proceedings. The author identifies some contradictions between Articles 115, 1151 and 81 of the RF Criminal Procedure Code and Articles 1041–1043 of the RF Criminal Code, which are related to the goal-setting of confiscation and disposition of the disputed property. Also, she mentions that certain concepts of civil proceedings are used in criminal proceedings, and this causes various divergences in law enforcement. The article determines the role of civil decisions concerning the status of the disputed property in the resolution of disputes under criminal proceedings. It examines the relationship between the rules of civil and criminal proceedings in determining the legal fate of the disputed property, as well as the ratio of private and public law.
Key words: property seizure, correlation of civil and criminal proceedings, civil decisions, criminal trial
Ivochkin A. B. (St. Petersburg, St. Petersburg Law Institute (branch) of the Academy of the Prosecutor General’s Office of the Russian Federation, e-mail: kafedra2000@mail.ru) The characteristic of the degree of public danger of a crime under Article 305 of the RF Criminal Code
The article presents main scientific approaches to defining the concept of public danger. There is an analysis of the nature and degree of public danger of a crime under Article 305 of the Criminal Code of Russia. A degree of its public danger appears to be really high due to the specific subject of the mentioned crime.
Key words: justice, crime, public danger, definition, criteria, Article 305 of the Criminal Code of Russia
ADMINISTRATIVE LAW AND PROCEDURE
Kislyakov S. V. (Vladimir, Training Centre of the Office of Ministry of Internal Affairs of Russia in Vladimir Region, e-mail: semen.kisliakov@yandex.ru) On the improvement of carrying out an investigatory experiment at the initial stage of investigation of road accidents causing harm to human health
The author analyzes the initial stage of road accidents investigation. He proves that the investigative experiment for determining a level of visibility and conspicuity in conditions as close as possible to those, in which the accident occurred, should be the primary investigative action. In the author’s opinion, there is a need to amend the RF Traffic Regulations with a new concept of restricted visibility in order to ensure the timely coverage of visibility and conspicuity at the initial stage of road accidents investigation.
Key words: road accident, investigation, inspection of the accident place
CIVIL LAW AND PROCEDURE
Vasilevskaya L. Yu. (Moscow, Kutafin Moscow State Law University, e-mail: liudmila.vasilevskaya@gmx.de) Pledge as a way to ensure the execution of natural obligations
The article deals with the distinguishing marks of pledge as a way to ensure the execution of natural obligations. Based on the analysis of different approaches of German and Russian civil lawyers to solving the mentioned problem, the author reveals her own understanding of the legal nature of natural and collateral obligations. The comparative analysis of these two legal structures helps to identify the characteristics of their legal regulation.
Key words: obligation secured by pledge, creditor’s pledge right, pledger, pledgee, natural obligation, execution of an obligation, protection of subjective rights
Kolosovsky O. V. (Yekaterinburg, Ural Federal University named after the First President of Russia B. N. Yeltsin, e-mail: oleg.kolosovsky@mail.ru) On the distinction between conscious ignorance and fundamental bargaining mistake
In Russian civil science, there is a common point of view that the categories of mistake and ignorance constitute two kinds of a single general concept. The article discusses the consequences of applying this point of view to cases of conscious ignorance in the process of bargaining. The author analyzes the possibility of separating conscious ignorance, when one decides to strike a bargain despite knowing that he or she is ignorant, from fundamental bargaining mistake.
Key words: conscious ignorance, fundamental bargaining mistake, bargain, party of a bargain
LABOUR AND SOCIAL LAW
Fedorova M. Yu. (St. Petersburg, Constitutional Court of the Russian Federation, e-mail: fmulawkc@mail.ru), Beker U. (Munich, Germany, Max Planck Institute for Social Law and Social Policy, e-mail: fmulawkc@mail.ru) Social law in Germany and Russia: the problems and development prospects
There is a discussion on social law as a branch of law, science and legislative phenomenon in Germany and Russia within its comparative research. The characteristics of social law, namely its subject, method, functions, tenets and sources, are under review. The interlocutors point out the uniqueness of German social security system by analyzing its structure, codified social legislation, mechanism of judicial protection of social rights, implementation of international and European social standards in Germany. The findings of the discussion, which reflect the challenges and development prospects of social law in Germany and Russia, could be useful for further comparative research in social law.
Key words: social security, national social security systems, social law, social insurance, social security standards, juridical protection of social rights
Ivankina T. V. (St. Petersburg, St. Petersburg State University, e-mail: tr_pravo@jurfak.spb.ru) Notable features of sources governing the service relations of civil servants
Since the service relations of civil servants are governed by both administrative and labour law, the author concludes that the sources system related to service relations is characterized by a combination of common sources of labour and administrative law and special laws regulating the civil service relations. The article then considers certain types of sources governing the service relations of civil servants, e. g. regulations, collective agreements and contracts, local regulations, international treaties and international standards and principles. Particular attention is paid to the role of judicial practice in regulating the civil service relations. The author disagrees with the experts in administrative law who argue that the rules of labour law are gradually being forced out the scope of regulation of the service relations and replaced by entirely special rules of administrative law. At the same time, she thinks that there is no need to create the RF Service Code and the only one useful thing to do is to amend the Federal Law on State Civil Service of the Russian Federation with special rules revealing notable features of this type of public service.
Key words: civil service, civil servant, service relations, sources of legal regulation, special rules
Balitskiy К. S. (Yekaterinburg, Urals State Law University, e-mail: kirill-master@list.ru) Termination of a labour contract with the employee who was absent from work: the history of legal regulation, doctrine, and judicial practice
The article investigates how the domestic labour legislation on termination of a labour contract with the employee who was absent from work has been changed since 19th century. According to the author, this ground for termination was significantly enhanced by the labour law doctrine and judicial practice.
Key words: labour contract, absence from work, employee, employer, labour legislation
LEGAL ASPECTS OF ECOLOGY
Ignatyeva I. A. (Moscow, Lomonosov Moscow State University, e-mail: land@law.msu.ru) A land of plot for the subsoil use: the retrospective review and current legal regulation
The subsoil use always assumes an access to the necessary plot of land. Actually, an owner of the license for subsoil use often faces the problems of obtaining the right to land. A number of new legal rules appeared over the last few years may speed up the solution of these problems.
Key words: plot of land, license for subsoil use, use of mineral resources, land, subsoil
ECONOMICS AND LAW
Naumov V. B. (Saint-Petersburg, Saint-Petersburg State University, Institute of Applied Economic Research of the Russian Presidential Academy of National Economy and Public Administration, e-mail: nau@russianlaw.net), Arkhipov V. V. (Saint-Petersburg, Saint-Petersburg State University, Advisory Council of the Roskomnadzor, e-mail: arkhipov@gmail.com) A concept of personal data: the interpretation under the development of informational and telecommunication technologies
The article discusses the interpretation of the concept of personal data within the framework of topical issues concerning the regulation of informational and telecommunication technologies. The authors carry out a comparative research on various approaches to defining the concept of personal data, and then they formulate the most promising one, based on the definition, established in the Federal Law on Personal Data, and adapted to current law enforcement practices. Thus, they argue that it would be appropriate to give a restrictive interpretation of the concept of personal data. According to it, possibility to identify an individual using the information available to an operator becomes a key feature of legal qualification of such information.
Key words: personal data, informational law, Internet
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: vsmirnov@gmail.com) The lawyers’ life during the «Khrushchev thaw» and «full-fledged socialism» period (1956–1985)
1960–1980s is an age of stability in advocacy and growing credibility of the defence institution. Lawyers were allowed to participate in the criminal proceedings from the moment of the indictment. The USSR Supreme Court, in its decision of 1967, proclaimed the principle of adversarial presence and equal rights of the parties of prosecution and defence. For the first time, advocacy had been enshrined in the USSR Constitution of 1977. The USSR Law on Advocacy of 1979 broadened the scope of the rights to criminal protection. The RSFSR Regulation on Advocacy of 1960 and 1980 democratized the corporate management; the Ministry of Justice acted as a co-ordination centre, facilitated the exchange of experiences, convened meetings, and arranged the advanced training courses. However, advocacy was considered as a part of the enforcement and ideological superstructure. Actually, it was given unusual responsibilities, i. e. the crime prevention or «education of citizens for the socialistic community». There was a constellation of prominent lawyers in Sverdlovsk at the time: K. A. Osipov, I. N. Batakov, B. A. Berkovitch, M. I. Braslavsky, Galperins (father and son), V. I. Ivani, E. V. Soson, A. L. Stom, B. A. Tikhovsky, A. A. Ustilovsky, M. B. Chernyak.
Key words: N. Khrushchev, USSR Supreme Council, XXIV CPSU Congress, itinerary sessions of the USSR Supreme Court, winner of socialist competition, branch of the inter-republican advanced training courses for lawyers
MUSEUM OF HISTORY OF SLI – USLA – USLU
Zipunnikova N. N. (Yekaterinburg, Urals State Law University, e-mail: igp@usla.ru) The challenges of «forging of belligerent Soviet jurists» and assignment of «Soviet lawyers-Leninists»: Siberian (Irkutsk) Institute of Soviet Law in 1933