Annotations № 5 / 2016
LEGAL CONGRESS IN YEKATERINBURG
Sumachev A. V. (Tyumen, Tyumen State University, е-mail: alekssumachev@mail.ru) A criminal legal framework for observing national traditions
There is an analysis of some national traditions and customs in view of their criminal and legal regulation. And though the RF Criminal Code doesn’t establish an explicit ban on commission of socially dangerous acts as remnants of local customs, it doesn’t mean that such acts are no longer criminal. Taking into account criminal and legal science and practices the author gives a legal assessment of following customs: payment of a bride price (kalym), «theft» of a bride (umykaniye), sacrifice. He proposes to amend the rules of the RF Criminal Code governing the national customs.
Key words: national traditions, customs, remnants of local customs, crime
Golubtsov V. G. (Perm, Perm State University, e-mail: predprim.pravo@gmail.com) The foreign and national standards for regulation of the individual’s insolvency (bankruptcy) institution
There is a review of some trends in legal regulation of the procedures of individual’s bankruptcy as an efficient mechanism for reestablishing his solvency. The functional features of insolvency proceedings in Russian and the USA are compared. The author concludes that it would be rewarding for the Russian law enforcement practice to use the foreign experience of addressing this issue.
Key words: insolvency, individual’s bankruptcy, encouraging a debtor to properly fulfill his obligations, consideration of the best interests of a creditor
METHODOLOGY OF LAW
Malinova I. P. (Yekaterinburg, Urals State Law University, e-mail: ruzh@usla.ru) Synergetics: the code theory of self-organization of complex systems
The article explores the code aspects of synergetics that are promising for legal science. The author proposes a conceptual system of the code theory of self-organization in order to broaden methodological opportunities of investigation and designing of social ontologies, including the legal ones.
Key words: codes, information, synergetics, future attractors, code memory, synergema, text, existential codes, Self-phenomenon, types of self-organization, information energy, types of systems, autocoordinating systems, autoterminating systems, antroposociogenesis, ontologies, methodology
Orlov V. G. (Helsinki, Finland, University of Helsinki, e-mail: vladimir.orlov@saunalahti.fi) The features of societal and juridical cognition
The paradigm of legal discourse covering the phenomena relating to law is based on practical jurisprudence, and, consequently, the scientificity of jurisprudence has a specific nature. Both practical and theoretical jurisprudence don’t produce objective, independently existing, scientifically verifiable knowledge. It is an instrument for resolving societal problems, primarily social collisions, and follows the requirements of juridical rationality. Argumentative reasoning is characteristic for legal thinking that forms the basis of jurisprudence. In author’s opinion, the modern law represents a creative activity where legal interpretation means producing but not finding law.
Keywords: scientism, jurisprudence, conceptual jurisprudence, rationality, argumentation
INTERNATIONAL LAW
Kremnev P. P. (Moscow, Lomonosov Moscow State University, e-mail: office@law.msu.ru) Participants of international armed conflicts: on the legal status once again
By analyzing the international agreements and the records of diplomatic conferences the author asserts that a doctrine needs to be aligned with the existing legal rules concerning participants of international armed conflicts and their legal status. The category non-combatant (earlier in a doctrine – «medical personnel, intendants, military correspondents and lawyers, religious personnel, members of working teams...») was abolished according to the Additional Protocol I 1977. Members of the armed forces include the non-combatants of a special status: medical, religious personnel and military personnel assigned to the performance of the tasks of civil defence. Crew members of merchant ships and civil aviation are civilians.
Key words: participants of armed conflicts, status of combatants, categories of combatants, abolition of the category non-combatant, Additional Protocol I of 1977
Tolstykh V. L. (Novosibirsk, Novosibirsk State University, e-mail: vlt73@mail.ru) An overview of the M. Koskenniemi’s book «From Apology to Utopia: the structure of international legal argument»
M. Koskenniemi goes beyond the existing discourse of international law and analyzes it from the outside – from the standpoint of philosophy and political theory. This allows not only to explain the content of the substantive concepts, but also to establish the laws of formation of the international legal arguments. The scientist offers the critical approach to international law that involves the recognition of relativity and multiplicity of possible solutions and the search for optimal solutions in the context of a particular situation.
Key words: international law, liberal political theory, doctrine of international law, international legal argumentation, critical approach
COMPARATIVE JURISPRUDENCE
Mochalov A. N. (Yekaterinburg, Urals State Law University, e-mail: art-m2006@yandex.ru) Separatism in Telangana and its causes (constitutional-law analysis)
The article deals with constitutional-law issues of Andhra Pradesh bifurcation and creation of a new state Telangana in South India in 2014. The author provides a historical background of the region and comes to conclusions about causes of sub-regional separatism in Telangana. Unlike many other similar situations in India, the Telangana separatism was neither ethnic, nor linguistic, nor confessional one. It had exclusively economic grounds. In author’s opinion, preconditions for raising separatism in Telangana were created by certain constitutional-law mechanisms and «positive discrimination» measures used in the system of Indian federalism for equalization of different parts of the state. The article contains legal positions of High Court of Andhra Pradesh and Supreme Court of India.
Key words: federalism, India, Telangana, separatism, subject of federation, positive discrimination
Larichev A. A. (Petrozavodsk, Russian Presidential Academy of National Economy and Public Administration, e-mail: alexander.larichev@gmail.com) Judicial decisions as sources of local government regulation and instruments of its control in Russia and Canada
The author asserts that the role of judicial decisions in local government regulation and control over its performance is growing both in Canada, where judicial decisions are used to be sources of law, and in Russia, where the approach to their significance is less obvious. So, in his opinion, it would be useful to adopt the positive foreign experience for better judicial control over local government in Russia, as well as to revise the approach to the place of judicial decisions within the legal regulation of municipal relations.
Key words: judicial decisions, local government, legal regulation, control, experience of Russia and Canada
Shirinovskaya A. S. (Yekaterinburg, Urals State Law University, e-mail: ecoland@usla.ru) On the right to land under the constitutional legislation of foreign countries
The article examines differences between the foreign constitutional rules governing the right to land. The author finds out that the right to land should imply obligations, and such a constitutional provision seems to have a positive disciplinary effect on the owners’ behaviour. As the result it is proposed to apply good experiences of foreign countries in order to improve the Russian legislation. There is a classification of constitutional acts based on the divergence of their rules concerning the right to land.
Key words: right to land, RF Constitution, constitutional legislation of foreign countries, right of ownership
ELECTION LAW AND ELECTION PROCEDURE
Antonov J. V. (Saint-Petersburg, Russian Presidential Academy of National Economy and Public Administration, e-mail: antonovjv@gmail.com) E-democracy and e-voting: the constitutional and legal dimension
There is a complex and comprehensive analysis of the constitutional and legal nature of e-democracy. The author turns to various foreign publications haven’t been translated in Russian or used in Russian legal science before. He puts forward a number of constitutional and legal ideas underlying the concept «e-democracy» and determining the key principles of its legal regulation.
Key words: e-voting, system of e-democracy, information and communication technologies, democratic processes, e-governance, constitutional and legal ideas
Makartsev A. A. (Novosibirsk, Novosibirsk State University of Economics and Management, e-mail: мakarzew@mail.ru) The functions of the electoral commissions in the Russian Federation: implementation problems
By using the materials of the electoral campaigns took place in the Novosibirsk region in 2015 the author concludes that the electoral commissions in Russia implement their regulatory function quite adequately, but are often restricted in their actions by preparation and organization of elections. However, they have also the protective function, and its efficient implementation depends on whether the commission members correctly understand their tasks to protect the electoral rights of citizens. Even if the electoral commissions of various levels possess the powers necessary for resolving electoral disputes, they may refer them to another body or only partially meet the requirements. According to the author, this is a consequence of uncertain status of the election commissions in the system of public authorities. Thereby, they should be given a status of electoral authority in order to be answerable for all decisions and actions they take.
Key words: electoral right, elections, state, subjects of the electoral right, electoral commissions, functions
LOCAL SELF-GOVERNMENT AND MUNICIPAL LAW
Selikhova O. G. (Moscow, Plekhanov Russian University of Economics, e-mail: kaf.tgp@mail.ru) The features of a legal status of local authorities: legal conflicts and practical challenges
By analyzing the Russian legislation and judicial practice the author reveals some features of a legal status of particular local authorities, outlines their main differences from other authorities and governing bodies at the municipal level (bodies of local administration and territorial public bodies). At the same time she announces a practical problem concerning the illegal transfer of powers to deal with the local issues from the local administration to its functional and territorial bodies; actually this could lead to a number of negative legal consequences. Therefore, she makes some recommendations for enhancing the legal framework for local government.
Key words: local authority, functional body of local administration, public and legal status of the local authority, legitimacy of the powers transfer
CRIMINAL LAW AND PROCEDURE
Kondrashova T. V. (Yekaterinburg, Urals State Law University, e-mail: ktv003@usla.ru) Cultural values under protection of Russian criminal law
The article examines a complex of criminal law rules providing the liability for encroachment on cultural values. The article shows that there are no system of these rules and no precise definition of a target and object of crime in the sphere of cultural values protection. The author proves that the logical-structural imperfections of law, including duplication of its rules, are a major obstacle to law enforcement.
Key words: system of law, cultural values, target of crime, duplication of rules, theft, objects of special value, forgery of art works, smuggling
Barabash A. S. (Krasnoyarsk, Siberian Federal University, e-mail: a.barabash@mail.ru) The grounds for imposing detention, house arrest or bail and their proving
Three measures of restraint such as detention, house arrest and bail are studied together not only because all of them significantly restrict the constitutional rights, but also because detention can be imposed where there is no possibility of applying another, milder measure of restraint – house arrest or bail. Statistics shows that detention is the most popular measure of restraint. But this doesn’t indicate that house arrest and bail are not efficient. The reason is that the most practitioners (and scientists as well) don’t even know what are the grounds for imposing these measures of restraint and how to prove them. So, the author makes an effort to fill these gaps by using the dialectic and formal logical methods. In the second part of the article the author reveals the grounds for imposing house arrest and bail and the scheme of their proving.
Key words: house arrest, bail, ground for imposing measures of restraint, scheme of proving the grounds
Shiryaev A. Yu. (Kushva, Office of Public Prosecutor of Kushva, e-mail: alexej.shiryaeff2013@yandex.ru) On a possibility of committing formally defined crimes with the indirect intent
The author gives some examples in order to disprove the view that the indirect intent is impossible when committing formally defined crimes. In his opinion, this is a good reason to revise and improve the normativist theory of elements of crime, not to decline it. The author comes to conclusion that the type of legal construction of an objective part of crime doesn’t predetermine the potential type of intent. The latter depends on the type of situation in which a real actor performs an objective part of crime. It’s stated that the normativist theory should be supplemented by a concept of «particular act» which is an original reality that must be taken for granted. And this reality could help to elicit the essential elements of crime which have an abstract relevance in laws.
Key word: normativism, elements of crime, type of construction of an objective part of crime, formally defined crime, indirect intent
Voevodkina K. M. (Perm, Urals State Law University, e-mail: Galeyeva_km@mail.ru) On the nature of a subject of crime under criminal law protection of credit relations (ending)
The nature of a credit as a subject of crime under Art. 176 of the RF Criminal Code is disclosed. It is proved that the notion of «state target credit» has different meaning in financial and criminal law. In fact, its proper interpretation determines whether the relations, in which the public and legal entity acts as not only a creditor, but also a borrower and a guarantor of the obligation fulfillment by the third parties, should be protected by criminal law. The author reveals the content of the state target credit contract. It is noted that there is a justified necessity to change the rules of p. 2 Art. 176 of the RF Criminal Code in order to provide more efficient criminal and legal protection in the sphere of a state credit facility.
Key words: criminal law, credit relations, state target credit, subject of crime
QUESTIONS OF INVESTIGATION AND OPERATIVE RESEARCH ACTIVITY
Kokurin G. A. (Yekaterinburg, Urals State Law University, e-mail: kokyrin1952@yandex.ru) On the use of a «compromise» method in operative research activities
The author claims that there is the need to use a new operative research preventive method – a «compromise» method. This method is designed to hide reliable information or propagate false information about a crime scene, methods and instruments of committing crime, members of a criminal group, its leader, channels of distribution of stolen items, a subject of crime, and an object of crime in order to prevent crimes at the stage of the emergence of a criminal intent and preparation for their committing.
Key words: operative research activity, operative research prevention, prevention of crimes, «compromise», misinformation, lies
Nelyubin K. A. (Naryan-Mar, Urals State Law University, e-mail: nelyubin.82@mail.ru) The analysis and modelling of the problematic investigative situations in cases of murders
The authors proposes his own definition of an investigative situation: it is a range of opportunities to identify the perpetrator and to manage his behaviour. Since a close relationship between the perpetrator and the victim of crime is a decisive factor for disclosure of murders (70,9 % of the examined cases), the author divides the problematic investigative situations into two groups: the situations with a relationship between the perpetrator and the victim of crime and the situations without it. A practical importance of such classification is substantiated.
Key words: investigative situations, behaviour management, disclosure of murders
ECONOMICS AND LAW
Nastin P. S. (Yekaterinburg, Urals State Law University, e-mail: p_nastin@mail.ru) The parties to the corporate legal relations
The author takes a critical view of the legislative reference to the structure of the corporate legal relations. He offers to divide these relations into relations concerning both participation in the corporation and its management; relations concerning only participation in the corporation; and relations concerning only its management. He consistently describes the parties to each group of the corporate legal relations. There is also an analysis of the position that the corporation cannot be a party to the corporate legal relations, as well as the position that the corporate bodies are independent parties to these relations.
Key words: corporation, corporate legal relations, parties to the corporate legal relations, corporate bodies
Bachurin D. G. (Tyumen, Tyumen State University, e-mail: 01ter@mail.ru) The tax procedure as a legal framework for tax administration
The article extends the discussion on the tax procedure and the tax procedural law within the differences between a narrow and a broad approach to the definition of «legal process». The author focuses on the insufficient legal status of the parties to the tax legal relations. It is stated that the lack of tax procedural guarantees of high quality tax administration leads to abusive practices of taxation authorities, e. g. the large-scale VAT embezzlement. The author concludes that the whole mechanism of taxation should be regulated by the tax procedural norms.
Key words: procedural norms, budget procedure, tax procedure, tax procedural law, VAT, VAT-fraud, soft procedural forms
Izvekov S. S. (Yekaterinburg, Urals State Law University, e-mail: ss.izvekov@gmail.com) Issues of fulfillment of obligations to pay a personal income tax by organizations in bankruptcy proceedings
The author aims to define the priority for implementation of the demand for payment of a personal income tax, previously withheld but not listed in budget, by organizations undergoing insolvency proceedings. He wants to know whether the notion «obligatory payment» includes the demand for payment of this tax, as well as assessed penalties and fines.
Key words: insolvency, bankruptcy, tax issues, personal income tax, obligatory payments, tax agent, priority of claims, fine, penalty
LEGAL ASPECTS OF ECOLOGY
Doronina A. K. (Moscow, Moscow State University, e-mail: akdoronina@gmail.com) Environmental issues in the Arctic strategies of the Arctic coastal states
The author examines the Arctic strategies of the Arctic coastal states taking into account their impact on the environmental protection of the Arctic region. She reveals the combination of environmental issues with other tasks declared in the Arctic strategies.
Key words: Arctic, environmental protection, Arctic strategies, Arctic states, legal status of Arctic, «Arctic five»
PAGES OF HISTORY
Loba V. E. (Armavir, Armavir State Pedagogical University, e-mail: vsevolodka@inbox.ru), Malahova A. S. (Armavir, Armavir Linguistic Social Institution, e-mail: mlhvnastya@mail.ru) Anatoly Koni on the legal foundations of necessary defence
The earliest work of A. F. Koni «The right to necessary defence» was written at the Faculty of Moscow University in 1865. This research is one of the first historical and legal interpretations of the doctrine on the right to necessary defence in Russian jurisprudence. A. F. Koni focused on some controversial questions of the right to necessary defence theory, gave a critical analysis of previous works concerning this issue, and analyzed the various aspects of the existing legislation on necessary defence. Actually, this work still draws attention of those who study such an important institution of criminal law as necessary defence. The article describes some views of the outstanding jurist on the common legal foundations of necessary defence.
Key words: human right to necessary defence, conditions of the right to necessary defence, limits of necessary defense, excess of limits of necessary defence
LEGAL HERITAGE
Kodan V. S. (Yekaterinburg, Urals State Law University, e-mail: tgp@usla.ru) Academician D. S. Likhachev on the prison subculture: «the card-playing of criminals»