Annotations № 1 / 2017

ROUND TABLE «THE SUBJECT OF JURIDICAL SCIENCE»

Popondopulo V. F. (Saint-Petersburg, Saint-Petersburg State University, e-mail: Popondopulo.V@jurfak.spb.ru) The subject of legal science

The article deals with the subject of legal science and its relationship with the object of legal science. The subject of legal science is defined as regularities in occurrence and development of legal phenomena and processes, and the object of legal science is the variety of social and legal phenomena and processes studied by legal science while recognizing its subject. The author takes stock of attempts to define the main scope of law using the factors external to a man as a carrier of law. The main scope of law is considered as a result of interaction between interested individuals, which is objectified into the relevant rules of conduct recognized in society and, therefore, obligatory.

Key words: legal science, legal science, object of legal science, subject of legal science, main scope of law, legal regularities

Polyakov S. B. (Perm, Perm State National Research University, е-mail: psb59@rambler.ru) The faults of legislation and law-enforcement practice as the subject of legal science

There are ongoing debates on the subject of legal science that has a lot of crucially different definitions. Jurists set different scientific goals, look for not the same things. They variously identify the position of legal science with regard to state power. Hence, there are different assessments of legislation and law-enforcement practice: they are treated as the subject of legal science or something like the reflection of Law. In the latter, you should study not the mere reflection, but the reflected subject. The author designates the research subject which is relevant for assessing and addressing the concerns of law-making and law-enforcement practices of a state.

Key words: law-making, law-enforcement, research goals, politics, state power, quality of legal acts

Osintsev D. V. (Yekaterinburg, Ural State Law University, e-mail: dimios@mail.ru) The subject of legal science: jurists’ imagination or objective knowledge?

Legal science as a part of social knowledge has long obtained the right to autonomous formation of its own subject. However, due to its direct relationship with sociological researches, jurists had to refer to neighbouring fields of knowledge and often could not attain desired results, and all of that led to confusing and even tragic consequences. Jurists studied whatsoever (issues of psychology, social acts, linguistic theories, mathematics modeling, etc.), but not the problems of law as they are. Therefore, the author sets a goal to investigate the mere subject of law, to define the specific character of juridical knowledge, and to provide evidence of its scientific nature.

Key words: legal science, legal model, branches of law, legal facts, legal terminology

Vasilevskaya L. Yu. (Moscow, Kutafin Moscow State Law University, e-mail: liudmila.vasilevskaya@gmx.de) On the subject of legal knowledge

By examining different approaches to the subject of legal science, the author elicits the dialectical unity of interrelations between the concepts of general theory of law and the concepts of branch sciences, in particular civil law. By taking into account the interdependence of these processes, she analyzes some trends in the development of civil law not only as a branch of law, but also as a branch of science; and raises a number of disputable issues on the subject of civil law.

Ключевые слова: legal science, legal technique, research methodology, civil law, civil law development

Semyakin M. N. (Yekaterinburg, Ural State Law University, e-mail: Misha2008@uralweb.ru) The problem of defining the subject of civil law science

The author pays attention to some issues concerning the definition of the subject of civil law science, its development in current conditions, and its relationship with subjects of a few «neighbouring» branches of jurisprudence including administrative law, land law, labour law, etc.

Key words: subject of science, civil law science, branch of law, academic discipline, civil nature, methodology, civil relations

Rodionova O. N. (Yekaterinburg, Urals State Law University, e-mail: uglaw@yandex.ru) The subject of criminology

The author compares two methods of defining the subject of criminology: the formulation of a general principle in order to set limits of the subject of criminology, and the establishment of a limited list of its elements. It is assumed that the former is preferable, because it does not prevent the science development, unlike the latter. The author suggests formulating the definition of the criminology subject by using a category that is general to all its elements, covers all existing criminology theories and allows the appearance of new ones.

Key words: subject of criminology, criminal, victimology

Fedorova M. Yu. (Perm, Perm State National Research University, e-mail: fmulawkc@mail.ru) The social risk phenomenon within a range of legal science

The social legal risk is treated as a complex social phenomenon, which has to be included in a range of legal science. It is concluded that the legal mediation of this phenomenon is inter-branch and should be held by using the achievements of natural and humanitarian sciences. Therefore, the social risk phenomenon should not considered within a range of social security law alone; it resides in those areas of legal science, which overlap with other branches of science, and, at the same time, at the crossroads of ranges of different legal sciences (branch, theoretical and historical, etc.). This allows the development of new (inter-disciplinary or inter-branch – regarding to legal researches) scientific directions (e. g. the conception of social risk management) in studies on the social risk phenomenon.

Key words: social risk, social security, social security law, range of a legal science, interdisciplinarity, inter-branch legal engagement

Ignatieva I. A. (Moscow, Lomonosov Moscow State University, e-mail: land@law.msu.ru) Scientific foundations of integration and differentiation in the legal regulation of environmental relations: the problem of determining the research subject

Integration and differentiation in the legal regulation of environmental protection, environmental security, and nature management were understood in different ways during different periods of the environmental science development. The author affirms that today, when there is a developed branch of law regulating environmental protection and environmental security, it is very important to update the understanding of integration processes for their further scientific research and, if needed, their boosting in legislation.

Key words: environmental law, environmental legislation, environmental protection, environmental security, environmental management, integration of the legal regulation of environmental relations, differentiation of the legal regulation of environmental relations

Nikishin V. V. (Saint-Petersburg, St. Petersburg State University, e-mail: faculty@jurfak.spb.ru) The subject of environmental law and the development of the Russian natural resources legislation

The author examines the features of environmental law as a branch of the Russian law and as a field of scientific knowledge, which affect the development of natural resource legislation. He analyzes the priorities of the public legal regulation of nature management relations guaranteeing the respect for a balance of interests of natural resources users, individuals and society while ensuring environmental well-being. The prognostic possibilities of environmental law science, used in the law-making process, are evaluated.

Key words: environment, natural resources, sustainable development, legal regulation, environmental law, legislation

Rusinov R. K. (Yekaterinburg, Ural State Law University, e-mail: tgp@usla.ru)

On the subject and object of theory of state and law as an academic discipline

The author argues that there is a need to distinguish accurately the subject and object of theory of state and law as a science and as an academic discipline for training a new generation of jurists. It is affirmed that the methodological competence of jurists is an integral part of their professional competence.

Key words: theory of state and law, research subject and object, common cultural and professional competences of students

INTERNATIONAL LAW

Ispolinov A. S. (Moscow, Lomonosov Moscow State University, e-mail: ispolinov@inbox.ru) Issues of relationship of international and domestic law in the judgments of the Constitutional Court of the Russian Federation

The author considers the historical and socio-political prerequisites for emerging active attitude of the constitutional courts of different countries towards international law. Such attitude includes not only the desire to be a guardian of the domestic constitutional order but also the desire to be actively involved in creation, interpretation, and application of international law. The recent judgments of the Russian Federation Constitutional Court reveal that the Court didn’t stay aside this process: its interpretations of the constitutional provisions indicate transition to the dualistic model of relationships between international and domestic law.

Key words: RF Constitutional Court, international law, relationship, dualism

Koneva A. E. (Moscow, Peoples Friendship University of Russia, e-mail: koneva_ae@pfur.ru) The contribution of the UN Working Group on Arbitrary Detention to the human rights protection (the case of Julian Assange)

The article proves that, at the present stage of the development of international law, special procedures of the UN Human Rights Council, including the UN Working Group on Arbitrary Detention, as universal human rights mechanisms make a significant contribution to the protection of rights of particular individuals. There is a detailed analysis of the opinion of the UN Working Group on Arbitrary Detention concerning Mr. Julian Assange, the founder of the online portal WikiLeaks. In this opinion the Working Group found the violation of the applicant’s rights in a form of arbitrary deprivation of liberty by the authorities of Sweden and Great Britain. The author shows the credibility and high legal significance of recommendations adopted by the universal human rights mechanisms and points out the obligation of states to take into account and follow these acts.

Key words: human rights, freedom from arbitrary detention, universal human rights mechanisms, special procedures of the UN Human Rights Council, UN Working Group on Arbitrary Detention

CRIMINAL LAW AND PROCEDURE

Vinokurov V. N. (Krasnoyarsk, Law Institute of the Siberian Federal Drug Control Service of Russia, e-mail: VinokurSiblaw@mail.ru) The direct object of a crime and its place in a system of crime objects

By using the categories of «universal», «general», «special» and «single» the author classifies the concepts of a crime object. The direct object of a crime as a «separate» is a social connection between the particular subjects of relations, manifested in a form of consequences of a crime The direct object correlates with the general («universal»), above-generic («general»), generic («special») and specific («single») objects as a part and the whole.

Key words: general, special, single, general object of a crime, direct object of a crime

Barabash A. S. (Krasnoyarsk, Siberian Federal University, e-mail: a.barabash@mail.ru) A recognizance not to leave and others measures of restraint, the imposition of which doesn’t require a court decision

This article is closely related to the article «The grounds for imposing detention, house arrest or bail and their proving» published in the fourth and fifth issues of «The Russian Juridical Journal» in 2016. The author from the same perspective reveals the grounds for imposing a recognizance not to leave and to behave in the proper way, personal guarantee, surveillance by the command of a military unit, supervision of minor suspect or accused, and proposes the schemes of their proving. The reason of studying these two aspects 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. The author’s conclusions rest on the use of the dialectic and formal logical methods.

Ключевые слова: recognizance not to leave and to behave in the proper way, personal guarantee, surveillance by the command of a military unit, supervision of minor suspect or accused, grounds for imposing a measure of restraint

ADMINISTRATIVE LAW AND PROCEDURE

Voropanov V. A. (Chelyabinsk, Russian Presidential Academy of National Economy and Public Administration (Chelyabinsk Branch), e-mail: vvoropanov@yandex.ru) A system of branch administrative jurisdiction bodies of the Russian Empire in 1725–1780: the principles of construct and the development specifics

The author examines previously unknown aspects of the legal regulation of a justice system of the Russian Empire from the ruling periods of Peter the Great and his successors till the implementation of the judicial and administrative reform by Catherine II (1775–1785).

Key words: Russian Empire, law, courts, jurisdiction

Romanov A. A. (Vladivostok, Far Eastern Federal University, e-mail: 777.1@mail.ru) A relationship between the proceedings related to administrative offences and the administrative proceedings

The author tries to distinguish the proceedings related to administrative offences and the proceedings under the RF Code of Administrative Procedure. He investigates current trends and scholars’ views on the matter of exemption of the legal institute of the proceedings related to administrative offences from the jurisdiction of the RF Code of Administrative Procedure.

Key words: code of administrative procedure, administrative jurisdiction

CIVIL LAW AND PROCEDURE

Arestov V. V. (Moscow, Korennoy and Partners law office, e-mail: arestov2305@zakon.ru) Features of a trustee’s civil liability under the securities trust management contract

Significant problems concerning foundations and limits of a liability of securities trustees as professional participants of the securities market are considered. The author reveals a specific character of securities trust management. He pays particular attention to the aleatory nature of the financial market transactions committed by a trustee. Basing on the analysis of doctrinal positions, legislation, and judicial practice, the author comes to a conclusion on a lack of the legal regulation of bringing these individuals to account for the failure or improper execution of relevant contractual obligations.

Key words: trust, trustee, securities, derivative financial instruments, derivatives, forward markets, civil liability

Sokolnikova T. I. (Tomsk, National Research Tomsk State University, e-mail: kovalenkoti@yandex.ru) The contra proferentem rule of contracts interpretation as a mean of indirect control over the fairness of the contract

The author points out the relevance of the issue on unfair contract terms and its connection with the problem of unequal bargaining powers of civil turnover participants. She assumes that one of the tasks of current civil law is to guarantee the fairness of the contract by special legal means of its control. It is possible to divide legal means of control over the fairness of the contract by their goals into indirect and direct ones. The author gives their general characteristics and analyzes the role of the contra proferentem rule as an indirect control mean. The application of this rule in foreign countries and in Russia is examined.

Key words: fairness of the contract, unfair terms, means of direct and indirect control over the fairness of the contract, interpretation of contracts, contra proferentem rule

ECONOMICS AND LAW

Zwier P. J. (Atlanta, USA, Emory University School of Law, e-mail: pzwier@emory.edu) High prices in the US for life saving drugs: collective bargaining through tort law?

The article is devoted to the problem of exorbitant pricing of life-saving drugs in the USA. It is stated that the outrageous conduct of pharmaceutical companies, which buy up life-saving drugs and decide to raise their prices, cause the emotional distress to the patients and should be considered a common law tort. In the author’s opinion, a class action is the most efficient legal remedy and a good method of moderating high pricing at pharmaceutical market.

Key words: class action, civil procedure, litigation, tort law

Stepanchenko A. V. (Yekaterinburg, Ural State Law University, e-mail: a.step72@gmail.com) The currency clause and other methods of overcoming inflation losses

According to the Russian legislation the author reveals the ways to compensate for inflation losses, one of which is the use of the contract currency clause. He touches upon some issues of court’s interpretation of terms of the contract containing the foreign currency clause.

Key words: inflation, methods of inflation losses compensation, indexation, currency clause

LEGAL EDUCATION

Ivanova S. A. (Yekaterinburg, Ural State Law University, e-mail: spgms@mail.ru) Co-operation between the Ural State Law University and the state and local authorities: experience, some challenges, and ways to resolve them

The author investigates an accumulated experience of co-operation between the Ural State Law University and the state and local authorities, describes some challenges for implementing education laws and laws on the public civil and municipal services, and proposes the normative and organizational ways to resolve them. A study on this matter could be useful for further development of law-enforcement and educational activities.

Key words: co-operation with the state authorities, co-operation with the local authorities, forms of cooperation, public service, universities, round table

PAGES OF HISTORY

Shirobokov S. A. (Perm, Perm State National Research University, e-mail: shirobokovsa@gmail.com) The grounds of the right to appeal in Russia in 1970–1990

The author examines provisions of the Decree of the Presidium of the Supreme Council of the USSR on April 12, 1968 «On consideration of citizens’ proposals, statements, and complaints», picking out those, which were widely supported by citizens, as well as those, which provoked public rejection and made the legal nihilism possible. In the author’s opinion, the legal regulation of social relations, which evolve while filing and considering the application, should be developed by taking into account the achievements of the former enforcer.

Key words: constitutional right to appeal, procedure of application consideration, succession of the legal regulation, public trust in public authorities and their officials, laws on the right to appeal

Chupilkina A. F. (Samara, East Economical and Legal Humanitarian Academy, e-mail: aygul8@yandex.ru) Is the Zemsky Sobor a background of Russian parliamentarism?

The author doubts on whether the period from the middle of 16th till the end of 17th century in Russian history should be treated as an «estate-representative monarchy». She also claims that this term is false and distorts the historical reality. She thinks that the Zemsky Sobor as a legal phenomenon based on an alleged consent of the population should be considered only as a negative model of forming of state power mechanisms. Actually, the term «quasi-representative monarchy» seems to be the most appropriate for the government form of the Moscow State at that time.

Key words: Zemsky Sobor, Federation Council of the Federal Assembly of Russia, constitutionalism, parliamentarianism, quasi-representative monarchy

LEGAL HERITAGE

Kodan V. S. (Yekaterinburg, Ural State Law University, e-mail: tgp@usla.ru) V. M. Korelskiy on the party and public acts as a source of Soviet law

STUDENTS’ BULLETIN

Kulikov A. S. (Moscow, Kutafin Moscow State Law University, e-mail: Annton94@yandex.ru) On criminalization of the illegal trafficking of traumatic arms

The author justifies the need to criminalize the illegal trafficking of traumatic arms by studying the legislation of Russia and some foreign countries as well as law enforcement practices, including the practice of the Constitutional Court of the Russian Federation. As a result, he proposes to amend the current legislation.

Key words: traumatic arms, illegal trafficking, criminal liability, criminalization, administrative responsibility