Annotations № 2 / 2017

METHODOLOGY OF LAW

Malinova I. P. (Yekaterinburg, Ural State Law University, e-mail: ruzh@usla.ru) Synergetics: the code foundations of social designing

Using the code theory of self-organization of complex systems represented in the article «Synergetics: the code theory of self-organization of complex systems» (published in the 5th issue 2016 of the «Russian Juridical Journal») the author develops the concepts of a consciousness genesis, intercode transformations of information in a tandem system «brain – consciousness» as well as of a relationship between cognitive and cerebral processes. The outcomes of this work are utilized for exploring issues of social designing – both theoretic and practical (i. e. the deep mechanisms of formation of widespread behavioural and psychosomatic deviations caused by a sweeping interference into social ontologies). The methodological foundations of law-making as a kind of social-designing activity are considered under the code theory of self-organization of complex systems.

Key words: consciousness genesis, codes, social ontologies, social designing, law-making, sexual education

COMPARATIVE JURISPRUDENCE

Kokotova M. A. (Yekaterinburg, Ural State Law University, e-mail: km231089@yandex.ru) The international legal aspect in the Constitutional Court of Russia and the Constitutional Council of France activities

The author examines the role the Constitutional Court of Russia and the Constitutional Council of France play in the foreign policy relations. She compares the powers of these bodies concerning the mentioned field. There is an analysis of both the constitutional control of international treaties and the constitutional control of laws in response to citizens’ appeals since the latter involves the dialogue between judges of national and supranational instances. Particular attention is paid to the relations between these bodies and the European Court of Human rights because the same rules can become a subject matter of the constitutional control and the control executing by this Court. The author puts forward an idea that there is a trend towards reinforcing the role of the constitutional control in relations between the state and the European Court of Human rights.

Key words: international treaties, constitutional control, Constitutional Court of Russia, Constitutional Council of France, European Court of Human rights

INTERNATIONAL PROTECTION OF HUMAN RIGHTS

Oganesyan V. A. (Republic of Armenia, Yerevan) International standards for human rights applied by constitutional courts

The author reveals the constitutional courts’ role in implementing the rules of international treaties on human rights. Using the decisions of the constitutional courts of Russia and Armenia as an example the author describes how international standards influence on the development of national legislation and the complex application of international treaties on human rights. He emphasizes the problem of maintaining a proper balance between respect for human rights and freedoms and national security.

Key words: international standard for human rights, international treaty, constitutional courts, Republic of Armenia

CONSTITUTIONAL LAW AND PROCEDURE

Presnyakov M. V. (Saratov, Stolypin Volga Region Institute of Administration, the branch of Russian Presidential Academy of National Economy and Public Administration, e-mail: presnykov1972@yandex.ru) The concept of «source of law»: the semantic dualism and constitutional integrity

The author examines the concepts of «source of law» and «form of law», and comes to a conclusion that any dispute on so-called material and formal sources of law is far-fetched. Within the constitutional law the understanding of material sources comes closer to the understanding of form of law that is best seen through the concept of natural law.

Key words: source of law, form of law, material form of law, constitutional law, natural law, formal sources of law, informal sources of law

Dzhavakhyan R. M. (Moscow, Russian State Social University, kafedra507@mail.ru) Improvement of the forms of citizens’ participation in the justice administration as a mechanism of constitutional transformation of judicial authority

Taking into account the constitutional provisions and the judiciary reforming tasks the author considers the extent to which the citizens’ right to participate in the justice administration is implemented. He thinks that there is a need of constitutional transformation of judicial authority by extending the use of the principle of peoples’ authority in social practice. It is proposed, at least, to realize the full potential of relevant legislation and, subsequently, to expand the forms of citizens’ participation in organization and functioning of judicial authority.

Key words: judicial reform, constitution, people’s authority, justice, judicial authority, constitutional transformation

LOCAL SELF-GOVERNMENT AND MUNICIPAL LAW

Voronina L. I. (Yekaterinburg, Ural Federal University named after the first Russian President Boris Yeltsin, e-mail: voronina_612@outlook.com), Kostinа S. N. (Yekaterinburg, Ural Federal University named after the first Russian President Boris Yeltsin, e-mail: kostinasn@mail.ru), Kukartseva M. V. (Yekaterinburg, Ural Federal University named after the first Russian President Boris Yeltsin, e-mail: marina.kukarceva.67@mail.ru) Improving the regulation of the provision of municipal services

The article deals with the problems concerning the development of administrative regulations for the provision of municipal services by local governments. There is an analysis of administrative regulations of the Rezhevskoy urban district of the Sverdlovsk region. The authors suggest some ways of improving the quality of municipal services.

Key words: state services, municipal services, administrative regulations

CRIMINAL LAW AND PROCEDURE

Voronin V. N. (Moscow, Kutafin Moscow State Law University, e-mail: voronin@zakon.ru) Criteria for the individualization of punishment for a criminal conspiracy

There is a criminal legal analysis of the application of specific criteria for the individualization of punishment for a criminal conspiracy. According to the RF Criminal Code, these criteria include the following: 1) the nature and the degree of the actual participation of the person in its perpetration; 2) the importance of this participation for the achievement of the purpose of the crime; 3) its influence on the nature and on the amount of inflicted or possible damage. The analysis of judicial practice and of the results of judges’ survey allows the author to identify the factors influencing the individualization of punishment, as well as to propose some legislative changes of wordings of these criteria in order to streamline judicial practice.

Key words: imposing of punishment, individualization of punishment, criteria for individualization, conspiracy, types of accomplices

Melyukhanova E. E. (Yekaterinburg, Ural State Law University, e-mail: melyukhanova@list.ru) Systemic features of the punishment system

The article is devoted to features of a system which were developed within the general theory of systems. The author divides them into three groups: those describing the internal structure of system; those describing the specifically systemic features of a system; those related to a system behaviour. The author wants to find out if the punishment system bears all above-mentioned features. She concludes that the punishment system should be treated as a system object of study.

Key words: features of a system, criminal law, criminal punishment, punishment system, features of the punishment system

QUESTIONS OF INVESTIGATION AND OPERATIVE RESEARCH ACTIVITY

Drapkin L. Ya. (Yekaterinburg, Ural State Law University, e-mail: ruzh@usla.ru) The situational approach in forensic theory and practice of crime investigation

The author refers to the results of the situational approach in forensics. He examines the variety of investigative situations and proposes their full classification. There is an analysis of the main methods of resolving complicated investigative situations.

Key words: situations, versions, crime detection, investigation, conflict, procedural actions, intellectual activity, theoretical base, factual base

Bakhteev D. V. (Yekaterinburg, Ural State Law University, e-mail: Dmitry.bakhteev@gmail.com), Fefilova M. V. (Yekaterinburg, Ural State Law University, e-mail: m.v.fefilova@mail.ru) The concept and the features of investigative mistakes in terms of the situational approach

The article deals with various approaches to the definition of «investigative mistake» and the features of mistakes made by an investigator in terms of the investigative situation theory. The features of an investigative mistake are classified.

Key words: investigative mistake, criminal mistake, misunderstanding, investigative situation

CIVIL LAW AND PROCEDURE

Nikitin A. V. (Yekaterinburg, Ural State Law University, e-mail: alexey-nikitin@mail.ru) On redirect of discharge of the obligation to a third person

The article is devoted to the acceptance of discharge of the obligation by a third person who is not a party of it (redirect of discharge by a creditor). The author explores a legal nature of redirect of discharge of the obligation, and the actual and legal possibilities of using such a mechanism in various types of contractual obligations. He concludes that a number of obligations, which prevents the use of the mentioned instrument, should include paid services agreements, in which an executor aims at achieving the intangible result (effect).

Key words: discharge of the obligation, proper discharge, acceptance of discharge of the obligation by a third person, redirect of discharge, personal legal relationship between a creditor and a debtor

Myagkova O. I. (Yoshkar-Ola, Arbitration Court of the Republic of Mari El, e-mail: aflamencado@yandex.ru) Unfair contract terms in Russian civil law

Basing on the analysis of civil doctrine and judicial practice the author examines the notion and the features of unfair contract terms. She reveals the content of the category «significant imbalance of interests» and determines its relationship with the principle of good faith. Special attention is paid to the correlation between the doctrinal category of unfair terms and the category of «clearly burdensome clauses» provided by Art. 428 of the Russian Civil Code. The differences between notions of unconscionable and of unfair contract terms are underlined. In conclusion the author points out that the category of unfair contract terms is familiar to Russian contract law since the control over fairness of contract terms has been regulated by Art. 428 of the Russian Civil Code.

Key words: unfair contract terms, balance of interests, good faith, contract of adhesion, clearly burdensome clauses

Neznamov A. V. (Yekaterinburg, Vinder Law Office, e-mail: neznamov@vinder.pro) Recognition under the reciprocity clause as a way to solve the anti-suit injunctions problem

The article concentrates on the possible settlement of the anti-suit injunction problem. It analyzes the arguments of supporters and opponents of the anti-suit injunctions application in Russian law, determinates the causes of such divergence, and concludes that in fact the application of anti-suit injunction leads to a collision of two different national legal systems. Having that in mind, the author proposes a new approach to solving the above-mentioned problem in Russian law.

Key words: injunctions, anti-suit injunctions, collision of legal systems, comity principle, harmonization of jurisdictional rules, reciprocity principle, recognition and execution of foreign judgments

Kostin A. A. (Moscow, Khrenov and Partners law firm, Institute for Legislation and Comparative Law under the Government of the Russian Federation, e-mail: aleks.a.akostin@yandex.ru) The extraterritorial effect of court orders

The article discusses the extraterritorial effect of various court orders and points out that foreign court orders are not subject to recognition and execution as they are not covered by the provisions of the treaty on international judicial assistance. Thus, a party to international legal proceedings needs to apply directly to the foreign court to issue the similar order (securing a claim) or transmit it in the manner provided by the treaty on international judicial assistance (demand for evidence).

Key words: foreign court order, interim measures, international cooperation on civil and commercial matters

LABOUR AND SOCIAL LAW

Kharitonov M. M. (St. Petersburg, St. Petersburg State University, e-mail: tr_pravo@jurfak.spb.ru) The cases in which professional standards are mandatory for employers

The author analyzes four cases, in which we can speak about the mandatory nature of professional standards, and the legislator’s logic, according to which these standards are mandatory. He proves that the widely held belief that all professional standards have become mandatory for employers since 1 July 2016 is incorrect and examines the reasons of such mistake. The article also raises the question on how the forming professional qualification system in Russia relates to the employer’s right to inspect and evaluate the business qualities of an employee.

Key words: professional standards, human resources management, personnel workflow

ECONOMICS AND LAW

Zwier P. J. (USA, Atlanta, Emory University School of Law, e-mail: razes82@gmail.com) 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

Belikova K. M. (Moscow, Peoples’ Friendship University of Russia, e-mail: BelikovaKsenia@yandex.ru) The legal framework of collective entrepreneurship in the BRICS countries

The article touches upon main approaches to the construction of a system of entrepreneur enterprises (partnerships, companies and their equivalents) through the prism of sources of legal regulation of their activities in the BRICS countries. Special attention is paid to the vector of their development that makes possible the future unification of these approaches.

Key words: BRICS, entrepreneurship, collective forms of business management, companies, partnerships

Rumyantseva D. A. (Moscow, Commercial bank, e-mail: dbredikina@mail.ru) Can an assigned account be treated as a new type of bank accounts?

The author examines new provisions of the Civil Code of Russia concerning an assigned account and analyzes its nature. She wants to know if the assigned account might be taken as a separate type of bank accounts from the legal standpoint.

Key words: security for obligations, pledge, assigned account, bank account, reform of civil legislation, pledge of rights under the bank account contract

LEGAL ASPECTS OF ECOLOGY

Ignatieva I. A. (Moscow, Lomonosov Moscow State University, e-mail: land@law.msu.ru) Legal support for the elimination of accumulated environmental damage

The Federal Law «On Environmental Protection» has been regulating social relations on the elimination of accumulated environmental damage since January 1, 2017. Now, new rules of law propose a universal way of solving the problem of the elimination of accumulated environmental damage in different territories and water areas. They provide the common integrated measures and the sequence of actions aimed at eliminating such damage. At the same time, these rules in some aspects are incomplete and unspecific. This fact may have an impact on the effectiveness of the elimination of accumulated environmental damage.

Key words: accumulated environmental damage, legislation on environmental protection, Federal Law «On Environmental Protection»

Dudykina I. P. (Moscow, Analytical Center under the Government of the Russian Federation, e-mail: inna_mel3008@mail.ru) Foreign researchers on the legal aspects of climate changes in Arctic

The article reveals five legal aspects of warming in the Arctic region and reducing of ice area in the Arctic Ocean, which were designated by foreign international experts. These are updating the legal framework of the Arctic ecosystems preservation; developing the legal mechanisms of the social environment improvement; maintaining sustainable fisheries; streamlining the rules on oil and gas production; clarifying the legal regime of navigation. The author outlines her own vision of each aspect.

Key words: Arctic, climate changes, Arctic Ocean, arctic states, foreign international legal doctrine, applicable law

Kurnitskaya A. V. (St. Petersburg, St. Petersburg State University, e-mail: annito4@gmail.com) Termination of the right to land for the purpose of environmental protection as a method of implementation of public interests

The author identifies a number of essential characteristics of termination of the right to land for the purpose of environmental protection. She studies the issues of ownership and the grounds for termination of the rights to land plots by taking into account a relationship between a land and other natural resources as organic parts of nature and common good.

Key words: land, natural resources, public good, environmental protection, termination of rights

PAGES OF HISTORY

Smirnov V. N. (Yekaterinburg, Ural State Law University, e-mail: vsmirnov@gmail.com) The alternative advocacy in Russia as a heritage of centuries

The multiplicity of actors of legal assistance has always been a problem of Russian statehood. It got extremely aggravated at the end of 20th – the beginning of 21th century when, by the will of the Ministry of Justice, advocacy was split into traditional and alternative assemblies of advocates. Today, along with the official advocacy including almost 75 thousand people, there is the same number (if not more) of legal advisors. The task of the government programme called «Justice» is to bring them together under the standards of federal policy of advocates.

Key words: sworn attorneys, private attorneys, assemblies of rights defenders (defenders, advocates), clandestine practice, legal cooperative, alternative assemblies, government programme «Justice»

Medvedev V. G. (Tolyatti, Togliatti State University, e-mail: medved.valentin@rambler.ru) The law on violating majesty of Roman people

The article is devoted to the Roman lèse-majesté law, which played a significant role in the strengthening of monarchical power not only in Ancient Rome, but also in Western European medieval States. In historical-legal science there is still no unambiguous approach to understanding of the nature of this law. Using the normative sources and statements by Roman lawyers and historians the author analyzes the legal nature and the content of this law as well as different changes and amendments made to it at various times. The author concludes that certain provisions of this law are reproduced in the current legislation of various countries, including Russia.

Key words: law, lèse-majesté, people, Emperor, princeps

MUSEUM OF HISTORY OF SLI – USLA – USLU

Zipunnikova N. N. (Yekaterinburg, Ural State Law University, e-mail: igp@usla.ru) From the law faculty of the Irkutsk University to the Ural State Law University: the very beginning

The author brings up the question of when exactly the Ural State Law University «was born». She reveals a genetic link between the Siberian Institute of Soviet Law (subsequently the SLI – USLA – USLU) and the law faculty of the university in Irkutsk. The article emphasizes that the «dispute on a date of birth» is rooted back in history, and puts forward a need to employ this dispute creatively for deeper knowledge of the history of the university and lives of people involved as well as the history of the scientific and educational branch and the whole country.

Key words: Ural State Law University, law faculty of the Irkutsk State University, statute of the university, origins of the university, centennial anniversary

LIBRARY

Review of the book: WTO law: theory and application practice / ed. by L. P. Anufrieva. Moscow: NORMA INFRA-M, 2016.– 527 p.

Review of the book: Kabyshev V. T., Zametina T. V. Russia – Crimea – Sevastopol: the constitutional legal study. Moscow: «Gorodets» Publishing House, 2016. – 226 p.