Annotations № 3 / 2016

METHODOLOGY OF LAW

Orlov V. G. (Helsinki, Finland, University of Helsinki, e-mail: vladimir.orlov@saunalahti.fi) The features of societal and juridical cognition

The classical, rationalist and empirical understanding of cognition and scientific knowledge, oriented towards searching for truth and objective laws, represents a linear thinking and is embodied in metaphors that are inadequate to modern knowledge on cognitive processes and science. Universal criterion of truth (verity) is impossible, and, consequently, the idea of scientific (objective) laws is unproductive, particularly in relation to artifactual phenomena. This concerns especially the domains where concrete and personal realization of knowledge is essential, which is characteristic for law. Incidentally, the paradigm of legal science is obviously independent that requires further investigation.

Key words: truth (verity), cognition, rationalism, empiricism, artifact

Zhdanov P. S. (Nizhny Novgorod, Lobachevsky State University of Nizhny Novgorod, e-mail: tigpnngu@yandex.ru) The problem of rationality in legal tradition of the Modern era

The article analyzes how the rationalistic worldview had influenced the formation of Modernist legal thinking. The author considers the main features of rationalistic paradigm in 17th century legal theory, as well as the ideas of that time mostly imbued with the rationalistic spirit. In particular, he describes the natural law conceptions of G. Grotius and T. Hobbes that are the examples of rationalist methodology in legal studies. Particular emphasis is paid to considering state as a manifestation of the rationalistic spirit in socio-political conceptions. The author shows a connection between the mechanistic conception of state and rationalistic social doctrines, and also reveals the roots of the crisis of rationalistic paradigm in European legal tradition. In his opinion, the rationalistic spirit of European philosophy fell into decline because of the expansion of historicism – a new worldview basis of political and legal theory at the turn of the 19th century. It’s argued that the followers of historicism were the ones who had given up the ideas of uniform rational principles of law.

Key words: Modern era, rationalism, natural law, social contract, worldview, mechanicism

THEORY OF STATE AND LAW

Kuchin M. V. (Yekaterinburg, Urals State Law University, e-mail: kutschin@mail.ru) A judicial rule-making: discussion aspects

By analyzing the current legislation, judicial practice and ideas of domestic and foreign scientists the author considers the issue of a judicial rule-making in the Russian legal system. According to the nowadays state of juridical science and practice he examines the prevailing arguments of those who argue against the judicial rule-making, and describes the normative provisions of courts.

Key words: rule-making, judicial practice, legal theory, sources of law

Malyugin S. V. (Yekaterinburg, Urals State Law University, e-mail: svm707@mail.ru) A category of legal nature in jurisprudence: the notion, determinants, key features, and approaches to understanding

According to juridical scientific works, Russian legislation and law-enforcement practice the author analyzes the determinants of legal nature, reveals its key features and main approaches to its understanding, and formulates the definition of this concept. He asserts that, in law-enforcement practice, the term «legal nature» is used as a juridical fact closest to the relevant rule of law; in scientific activities, the legal nature is regarded as a category representing the essential features of different legal phenomena and making it possible to determine their place and role in the juridical domain. The author concludes, in particular, that a social goal, enshrined in a rule of law, is one of the substantial criteria for defining the legal nature.

Key words: rule of law, content of law, law enforcement, legal qualification, interpretation of law, legal nature

PUBLIC ISSUES AND POLITICAL SCIENCE

Bahtina M. S., Khazanov S. D. (Yekaterinburg, Urals State Law University, e-mail: admp@usla.ru) Anti-corruption expertise of normative legal acts as a mean to reduce corruption risks

The article deals with the essence of anti-corruption expertise as a mean of reducing corruption risks in law enforcement, and investigates conditions for an efficient implementation of anti-corruption expertise. Also it analyzes approaches to improving the scientific and methodological foundations of anti-corruption analysis.

Key words: anti-corruption expertise, corruption factors, corruption risks, anti-corruption analysis of normative prescriptions

COMPARATIVE JURISPRUDENCE

Nechkin A. V. (Yekaterinburg, Urals State Law University, e-mail: super.nechkin@gmail.com) The structure of governments of the CIS countries

The article investigates the constitutional and legal status of presidiums of the governments and coordinating and advisory bodies under the governments of the CIS countries. In view of positive experience of the CIS countries the author proposes to amend the domestic laws on the Russian Government and its bodies.

Key words: Commonwealth of Independent States, Government of the Russian Federation, executive power, government, governments of the CIS countries

Yelyubayev Zh. S. (Kazakhstan, Almaty, Al Farabi Kazakh National University, e-mail: yely@chevron.com) On national security in the area of subsoil use in the Republic of Kazakhstan

Addressing the issues of national security related to aggressive development of the subsoil use sector is one of the strategic tasks of the state. First, it’s significant to make sure that the national interests are adequately protected from potential threats. Second, it’s necessary to ensure effective economic management, especially in the area of subsoil use, as well as to establish state control over compliance with the environmental requirements. However, the state’s pursuit to maximize the use of raw material resources for economic development causes a number of negative consequences, namely «resource nationalism» and «resource curse».

Key words: national security, subsoil use, environmental protection, environmental and economic security, competent supervisory authority, «resource nationalism», «resource curse», investment

Danilov I. I. (Moscow, Inter RAO Group, e-mail: igordanilov08@gmail.com) The history of model legislation development in the United States

According to the author, model legislation evolved in the United States as a way of unifying state laws. He mentions that model acts are of a recommendatory nature, and describes in detail their types known to American legal science and practice. In the USA, the unification of law by means of model legislation passed two stages: before the Uniform Law Commission had been established in 1892 and after. Particular attention is paid to the activities of the Commission which is a main drafter of model acts. The author reviews the results of its work in over the 120-year period, gives a few examples of model acts adopted by the Commission, and considers the history of their perception by state legal systems. Also he shows the impact of the Commission’s activities on development of international law and legislation of other states.

Key words: model legislation, unification of law, USA, Uniform Law Commission

CONSTITUTIONAL LAW AND PROCEDURE

Kondrashev A. A. (Krasnoyarsk, Siberian Federal University, e-mail: legis75@mail.ru) Removability of state power as a constitutional value

By analyzing Russian and foreign legislation the author asserts that removability of state power could be regarded as a constitutional value. He introduces a definition of constitutional values and their classification. According to the author, removability of state power is an exclusive institution including: 1) periodic changes in senior executive staff; 2) setting up obstacles for the assumption of the highest public office by the same person; 3) setting up age limits for the assumption of the highest public office. It’s argued that removability of state power can be attained only if the following conditions are met: fair and competitive participation in elections of representatives of different parties and political movements; rejection of discrimination against «unsuitable» candidates and parties wishing to gain access to elections; rejection of providing «preferential» access to elections for the privileged groups of candidates; formation of new electoral bodies quarantining fair and equitable access to elections for all candidates and parties and – what is more important – assessing the outcome of elections in an objective and impartial manner. The author proposes to amend the RF Constitution by enshrining the provisions on term and age limits for the assumption of presidency: no one should be elected for this post more than twice and hold it beyond the age of 65 or 70.

Key words: constitutional value, removability of state power, two-term limit for the assumption of presidency, age limit for the assumption of public office, optimum term

ELECTION LAW AND ELECTION PROCEDURE

Khudoley K. M., Khudoley D. M. (Perm, Perm State National Research University, e-mail: dkhudolej@yandex.ru) On voting of full-time students registered in dormitories for their temporary stay

The authors investigate the Russian legal models of giving a suffrage to full-time students registered in dormitory, and consider the order of their inclusion in voter lists. They conclude that the suffrage of full-time students registered at places of their temporary stay should be enshrined in the legislation of every RF subject even if their permanent residence is outside the area of corresponding election district. Full-time students registered at places of their temporary stay should be included in voter lists based on their written application submitted to the electoral commissions within the period provided by the legislation. In the authors’ opinion, it will allow realizing the suffrage of a large number of students, in particular non-resident full-time students who (unlike part-time students) live far from their permanent residence for a long time and have a real interest in dealing with the issues of national and local concern within the territory, where they study, through their representatives in public authorities.

Key words: suffrage, students, dormitories, voting, full-time education, temporary stay

Reut D. A. (Moscow, Russian State Social University, e-mail: floryan@yandex.ru) Publication of the results of public opinion polls as a tool of informing voters

The publication of results of public opinion polls concerning elections not only informs voters, but also severely influences the social awareness. The author points out that there is no definition of the concept «public opinion poll» in the Russian legislation, and asks whether the legislative restrictions regarding publication of the results of public opinion polls are substantiated or not. On the one hand, it’s inadmissible to restrict the voting rights disproportionately, on the other – if information concerning elections is disseminating without any restriction, it always causes violation of the rights and legitimate interests of other persons. Only if the legislative requirements dictated by the constitutional principle of a democratic state are complied with, information will be a legal tool of ensuring free and conscious choices of voters, equal rights to participate in elections, publicity and legitimacy of the elected public authorities.

Key words: elections, conscious will of voters, informing voters, public opinion poll, Internet

CRIMINAL LAW AND PROCEDURE

Zyablikova M. V. (Magadan, Kutafin Moscow State Law University, e-mail: mfmgua@mail.ru) The types of exemption from criminal liability containing elements of active repentance

This article is devoted to the types of exemption from criminal liability containing elements of active repentance under Article 75 of the RF Criminal Code. The author describes some controversial issues of applying the provisions related to these special types of exemption from criminal liability. In particular, the following articles of the Special Section of the Criminal Code are considered: 1271, 204, 291, 205, 222, 223, 228, 2281.

Key words: active repentance, exemption from criminal liability, notes to articles, Criminal Code

Schelkonogova E. V. (Yekaterinburg, Urals State Law University, e-mail: shelkonogova-ele@mail.ru) The Soviet Penal Code of 1918 and the current RF Criminal Code: the comparative legal analysis

There is a review of changes in the Russian criminal legislation of 1917–1919. In particular, the article examines a little known legal act – the Soviet Penal Code of 1918. It conducts the retrospective comparative legal analysis of the mentioned Code and the current Criminal Code of Russia. These sources of criminal law are considered under the system approach and principle of succession.

Key words: Soviet Pena l Code, Criminal Code of the Russian Federation, comparative legal analysis, sources of criminal law, history of Soviet criminal law, system approach

Popov V. A. (Yekaterinburg, Urals State Law University, e-mail: baikal2401@yandex.ru) A criminal association (criminal organization): the comparative legal investigation

The author explores the sources of criminal law of foreign countries in order to find out whether they contain a concept of criminal association (criminal organization). He discovers similarities and differences among the rules of foreign legislation concerning criminal liability of persons participating in criminal associations (criminal organizations).

Key words: criminal association, criminal organization, criminal legislation, foreign countries, criminal liability

QUESTIONS OF INVESTIGATION AND OPERATIVE RESEARCH

Dolinin V. N. (Yekaterinburg, Urals State Law University, e-mail: dvn1952@gmail.com) On peculiarities of the programmes implemented at the first stage of an investigation of robberies and robberies committed with illegal penetration into dwelling

The article deals with a situational approach to investigating robberies and robberies committed with illegal penetration into dwelling. It pays special attention to suggesting different versions in various investigative situations, as well as to implementing the programs of investigative actions and operative research activities.

Key words: program, investigation, illegal penetration, dwelling

Boyko M. A. (Barnaul, Barnaul Law Institute of MIA of Russia, e-mail: maxmaralek@mail.ru) Personality characteristics of a journalist as a victim and a perpetrator

There is an analysis of personality characteristics of perpetrators who committed crimes against journalists due to their professional activities. The author also considers personality characteristics of a journalist as a victim which must be taken into account during the investigation of crimes mentioned above.

Key words: victim’s personality, journalist, professional activity, perpetrator’s personality, motive

CIVIL LAW AND PROCEDURE

Lisachenko A. V. (Yekaterinburg, Urals State Law University, e-mail: fox@ues.ru), Mashtakova A. R. (Yekaterinburg, lawyer, e-mail: fox@ues.ru) Fans or pirates?

The article analyzes the legal status of copyright objects created in imitation of works of someone else without an explicit consent of copyright holder, and the legal status of their authors.

Key words: civil law, civil rights, copyright, literary work

Bulygina M. A. (Yoshkar-Ola, Russian Presidential Academy of National Economy and Public Administration, e-mail: Marishka-135@yandex.ru) Exchange of the property rights

The author raises the question of whether it’s possible to conclude the barter agreement for exchanging the property rights. She examines a legal nature of the obligatory, corporeal, corporative, and intellectual rights. By analyzing the Russian and foreign civil legislation, legal doctrine and arbitration practice the author finds out that the property rights with monetary value could be mutually exchanged according to the barter agreement. She makes clear that a cession of the obligatory rights is not independent; it is based on the appropriate civil causal contract, for instance on the barter agreement. The article aims to prove that the right of ownership cannot be transferred separately from the property, but it’s acceptable to barter the corporative rights including the rights fixed in uncertified securities. However, as the entire complex of property and non-property rights of a participant of corporation is secured, separate alienation of them seems to be illegal. The author mentioned that the contract on alienation of intellectual rights is a kind of agreements on property transfer, so the exchange of the intellectual right to another property right could be regarded as the barter agreement. In conclusion the author shows that it’s appropriate to apply the rules on the barter agreement to exchange of the property rights, and proposes to amend Chapter 31 of the RF Civil Code.

Key words: barter agreement, obligatory rights, corporeal rights, corporative rights, intellectual rights

Reshetnyak V. I. (Rostov-on-don, Russian State University of Justice (Rostov Branch), e-mail: resh42@yandex.ru) E-justice in Australian civil litigation

The article studies the use of information technologies in judicial system of Australia. There is an e-court strategy that was developed to implement new methods of case management, to improve access to justice and to increase its efficiency. This strategy includes, in particular, informing citizens and legal professionals on the courts’ activities, providing access to civil judgments for the vast majority of citizens, electronic storage of data, filing to the court in electronic form (e-filing), online hearings, etc. According to the author, the use of information technologies allows reducing the period of trial and related costs, simplifying litigation procedures, making the court open and accessible, and increasing the efficiency of civil justice.

Key words: civil procedure, information technology, electronic filing system, judicial system, e-justice, efficiency of justice

LABOUR AND SOCIAL LAW

Shaihatdinov V. Sh. (Yekaterinburg, Urals State Law University, e-mail: spgms@mail.ru) On improvement of the legal mechanism of state policy concerning social protection

In the article, there is a list of normative legal acts governing the main directions of state policy concerning social protection. The author puts forward some proposals for improving the legal mechanism of its implementation.

Key words: social protection, pension system, state policy, social service

Filipova I. A. (Nizhny Novgorod, Lobachevsky State University of Nizhny Novgorod, e-mail: irinafilipova@yandex.ru) An employment contract: the concept, form, and content (on the example of Russian, French, UK, USA and Chinese legislation)

An employment contract is a central institute of labour law in the majority of states. The author investigates the legislative interpretation of employment contracts and the peculiarities of legal regulation of their form and content in different countries. She wants to assess objectively a level of labour legislation development in Russia, and therefore, she compares it to the labour legislation of the economically developed countries which use different models of legal regulation of labour relations: European, Anglo-American, and Chinese. Labour law in Russian appears to be rather similar to French one characterized by a strong social orientation. The author pays special attention to the «flexibility» of labour law of those countries which follow the Anglo-American tradition; this flexibility entails a freer construction of labour relations that contributes to development of labour market and economics of the state as a whole.

Key words: employment law, labour law, employment contract, form of employment contract, content of the employment contract, terms of the employment contract

ECONOMICS AND LAW

Shestakova E. V. (Moscow, LLC «Actual management», e-mail: kalabaha@inbox.ru) The conclusion of tax agreements

Tax agreements are concluded both at the international level, e. g. bilateral treaties on avoidance of double taxation, and at the national level – in a form of pricing agreements, settlement agreements. At the same time, the Russian institution of tax agreements is not highly developed as there is no mention of settlement agreement in tax laws, and the conclusion of pricing agreements is possible only for major taxpayers who can pay a large fee. However, the author thinks that developing the mechanisms of the tax agreements conclusion would be helpful in improving the interaction between taxpayers and tax authorities.

Key words: tax agreements, agreements on avoidance of double taxation, pricing agreements, settlement agreements

Rogozina А. А. (Yekaterinburg, Urals State Law University, e-mail: nanigrape@gmail.com) Limits of application of the most-favoured-nation clause to the procedural provisions of the international agreements

The article provides a survey of scientific points of view regarding the possible application of the most-favoured-nation clause to the procedural provisions of the international agreements. The investment tribunals apply the clause to the issues of admissibility, but there are no criteria for distinguishing the issues of admissibility and the issues of jurisdiction.

Key words: most-favoured-nation clause, procedural provisions, investment arbitration, foreign investment

EXPERTISE

Kozubenko Yu. V. (Yekaterinburg, Urals State Law University, e-mail: yuri.kozubenko@usla.ru) Termination of the criminal case by an appeals instance court

The author gives his own expert opinion on application of Article 38921 of the RF Criminal Procedural Code concerning termination of the criminal case with the cancellation of a sentence of conviction passed by a first instance court.

Key words: termination of the criminal case, cancellation of a sentence of conviction by an appeals instance court, expiration of statutes of limitation, consent of an accused person

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» (the end)

LEGAL HERITAGE

Kodan S. V. (Yekaterinburg, Urals State Law University, e-mail: tgp@usla.ru) I. V. Stalin’s speeches in studying the USSR constitutional history: ideological grounds of Soviet law