Annotations № 3 / 2017

INTERNATIONAL PROTECTION OF HUMAN RIGHTS

Tolstykh V. L. (Novosibirsk, Novosibirsk State University, e-mail: vlt73@mail.ru) The genesis of the idea of human rights and its criticism

The author claims that the concept of human rights arose on European soil as a result of certain cultural, political, and economic factors. Its primary base is formed by Christian ideas, secularized with the dissolution of feudalism and the spread of capitalism. Its main beneficiary is the bourgeoisie, who used personal rights to destroy feudal institutions, political rights to establish control over the state, and economic and social rights to mitigate class contradictions and distract their opponents. The author considers the classical criticism of human rights, distinguishing its conservative, moderately liberal, Marxist and Christian trends, as well as the contemporary criticism which explicates classical arguments. According to the author, the history of human rights is not complete: it seems that today humanity is on the eve of fundamental transformations, and their content and final result are difficult to predict.

Key words: human rights, natural law, positive law, international law, social contract

INTERNATIONAL LAW

Lazutin L. A. (Yekaterinburg, Ural State Law University, e-mail: mp@usla.ru) The relation between principles of international law and principles adopted by CICA member states

There is a comparative analysis of the content of principles of international law enshrined in The UN Charter, the Declaration on Principles of International Law 1970, The Final Act of the Conference on Security and Cooperation in Europe 1975, and The Declaration on Principles Guiding Relations between CICA Member States 1999. The author shows the changes in interpretation and implementation of certain principles, taking into account the shift of the world geopolitical situation and the development of current international law.

Key words: principles of international law, sovereignty, cooperation, international security, human rights, liability

Kudinov A. S. (Moscow, Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation, e-mail: kudinov-as@mail.ru) The Tagliavini Fact-Finding Mission and the limits of competence of international commissions of inquiry

The article analyzes the content of the report of the Independent International Fact-Finding Mission on the Conflict in Georgia (Tagliavini report) of 2008–2009. The report is an example showing that international commissions of inquiry are not limited to fact-finding. They are usually endowed with broad mandate and formulate legal conclusions. In addition, the final report may contain political and historical assessments as well as general considerations about peace and humanity. Such practice does not comply with the principle of limited competence, which is enshrined in The Hague Conventions for the Pacific Settlement of International Disputes of 1899 and 1907 and The Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security 1991. The author, however, concludes that there is no explicit prohibition of derogations from this principle and notes that a new standard of competence of international commissions of inquiry has formed. This standard actually makes them quasi-judicial bodies.

Key words: Tagliavini Fact-Finding Mission, international inquiries, international commissions of inquiry, fact-finding, competence, quasi-judicial body

CONSTITUTIONAL LAW AND PROCEDURE

Konovalova L. G. (Barnaul, Altai State University, e-mail: vaskova82@yandex.ru) Separation of powers with clearly defined and factual powers of the parliament as a sign of parliamentarianism

The author analyzes various approaches to the definition, characteristics, and nature of parliamentarianism as well as the basic issues of a constitutional law theory of separation of powers in the light of its relations with an idea of parliamentarianism. The author believes that parliamentarianism is a theoretical concept and a special system of organization of state power, a legal institution, and a principle of the state apparatus, and represents the qualifying attributes of the parliament. She concludes that it is inadmissible to consider parliamentarianism as a «rule of the parliament» or «ministerialism» and to confuse it with elements of the form of government. In the author’s opinion, the parliamentary system allows for the effective execution of powers of the parliament, its collaboration with other branches of power and, thereby, provides for the stable development of the state. According to the author, it is incorrect to boil the system of separation of powers down to functional distribution of powers between the governing institutions; it is also necessary to take into account the higher position of executive authorities in the mechanism of state government as well as the positive and negative symptoms in parliament activities.

Key words: parliamentarianism, separation of powers, parliament, deputy, form of government, state regime

Nesmeyanova S. E. (Yekaterinburg, Ural State Law University, e-mail: nesmeyanova@yandex.ru) The Ural scientific school of constitutional judicial procedure

Nowadays there is a scientific school of constitutional judicial procedure in the Ural State Law University that is hosted by the Department of Constitutional Law. The representatives of this school investigate the problems of constitutional judicial procedure in Russia and other countries, and conduct a comparative study as well. Some of them join the ranks of practitioners, particularly work at the Constitutional Court of the Russian Federation. The author refers to the history of the Ural scientific school of constitutional judicial procedure, tells about its outstanding representatives and the main scientific advances.

Key words: scientific school, constitutional judicial procedure, study of the constitutional justice in Russia, development of the constitutional justice in the subjects, academic discipline

CRIMINAL LAW AND PROCEDURE

Bibik O. N. (Omsk, Dostoyevsky Omsk State University, e-mail: olegbibik@mail.ru) Inflation and deflation of criminal repression

Using a cross-disciplinary approach the author investigates a criminal sanction that is considered as a kind of symbolical social exchange. In this regard he refers to economic theory, which, in particular, proved the existence of inflation and deflation in the sphere of benefits exchange. There is a hypothesis that exchange of anti-benefits (crime and punishment) is also accompanied by inflation and deflation caused by changes in equivalence of the exchanged anti-benefits. Inflation (deflation) takes place while expanding or reducing the application of criminal repression provided that there are no changes in corresponding parameters of crime. For example, natural inflation of criminal repression is observed in emergency situations, in war-time, in the period of revolutionary events, during the rise in crime. At the same time, the normal development of criminal law mainly moves in the direction of gradual deflation of criminal repression. The objective reason of this process is more and more efficient satisfaction of basic human needs as a result of social development. Deflation of criminal sanction for violent crimes seems to slow down because society becomes less tolerant of violence. On the basis of statistical data, scientific research the author also concludes that inflation (deflation) of criminal repression in Russia quite often has no objective reasons; in particular it is not even caused by a real state of crime.

Key words: criminal repression, inflation, deflation, equivalence, social exchange

Menshikova A. G. (Yekaterinburg, Ural State Law University, e-mail: menshikova_anna@mail.ru) A special cruelty in the light of the objective elements of a crime

The author analyzes the doctrine of criminal law, decisions of the Plenum of the RF Supreme Court, court practice related to criminal cases on a charge of murder and intentional infliction of grave injury or injury of average gravity with a special cruelty, the survey of practitioners and, on the basis of the analysis, determines the signs of the objective side of a crime which reflect the special cruelty. It is proved that both science of criminal law and law enforcement practice match the special cruelty with a criminal method and, in certain cases, with a crime situation. Nonetheless, the often mentioned other circumstances which can also be a proof of the special cruelty, are not given proper attention. The author argues that the other circumstances should include the optional objective elements of a crime such as a scene and a time of committing a crime as well as means and instruments of committing a crime.

Key words: special cruelty, crime, objective elements of a crime, criminal method, criminal situation

Dryga V. A. (Yekaterinburg, Ural State Law University, e-mail: dryga@jurfo.ru) The concept of criminal policy

The article describes a special element of criminal law science and state activity that is criminal policy. The author analyzes the origins and the development of this concept in domestic and foreign doctrine. Besides that, he analyzes some aspects of correlation between criminal law and criminal policy, formulates his own definition of criminal policy and researches its correlation with related concepts.

Key words: criminal policy, criminal law, policy, crime control, criminal law policy

Galiev B. B. (Kostanay, Republic of Kazakhstan, Chelyabinsk State University (Kostanai branch), e-mail: bbgaliev@mail.ru) Special grounds for releasing from criminal responsibility in the notes to articles of the Special Part of the Kazakhstan Criminal Code

The author discusses a number of grounds for releasing from criminal responsibility enshrined in the notes to articles of the Special Part of the Kazakhstan Criminal Code. Some of these articles and notes to them could be identified as legislative innovations, but, despite their novelty, they are, according to the analysis, controversial and even legally untenable.

Key words: kidnapping, voluntariness, pyramid scheme, criminal group, funding, violence, weapons, military equipment, extreme necessity

PROCURACY SUPERVISION

Ergashev E. R. (Yekaterinburg, Ural State Law University, e-mail: ergashever@mail.ru) On some problems of the legal regulation and application of legal means of a prosecutor involved in civil proceedings

The article investigates different types of legal means of a prosecutor involved in civil proceedings, the peculiarities of their application and legal regulation. The author pays special attention to the prosecutor’s inspection and the specifics of its conducting in judicial bodies, which are not subject to the prosecutor’s office. He also examines the problems related to the conclusion as a measure of prosecutor’s response applied by a prosecutor involved in proceedings under way.

Key words: legal means of a prosecutor involved in civil proceedings, means of identifying violations of law, prosecutor’s inspection, inspection actions, measures of prosecutor's response, prosecutor’s conclusion

ADMINISTRATIVE LAW AND PROCEDURE

Grubtsova S. P. (Yekaterinburg, Ural State Law University, e-mail: grubtsovas@gmail.com) On judicial administrative procedural law

The article deals with the legal nature of judicial administrative procedural law as a sub-branch of civil procedural law in the context of the current legal regulation of administrative litigation that has emerged since the adoption of the Russian Code of Administrative Litigation.

Key words: administrative litigation, judicial administrative procedural law, civil procedural law, sub-brunch of law, civil procedure

CIVIL LAW AND PROCEDURE

Gruzdev V. V. (Novosibirsk, Limited Liability Company «Gruzdev & Partners» Law Firm, e-mail: gruzvlad@rambler.ru) Property relations as a subject of civil law

Property relations as a part of a subject of civil law arise in connection with the economic benefits, which are tradable, have a monetary value, could be exchanged or replaced for another economic good. The author mentions that the subject of civil law consists of independent property relations that are not derived from other relations.

Key words: subject of civil law, property relations, economic good

Zaykov D. E. (Moscow, 25th State Scientific Institute of chemmotology of Ministry of Defence of the Russian Federation, e-mail: joburist@yandex.ru) Restitution of judicial act in arbitration proceedings: the law enforcement problems

The article discusses the features of law enforcement practice of arbitration courts related to the implementation of restitution of judicial act. It is proved that the current legal regulation, the ambiguous positions of the Russian Supreme Arbitration Court as well as the lack of necessary clarifications of the Plenum of the Russian Supreme Court on the issue of the implementation of this legal institution give rise to controversial court practice. These together make adopted judicial acts less predictable and less explicit. The author criticizes the positions of certain arbitration courts on whether restitution of judicial act could be applied to non-property requirements as well as whether the third parties without independent claims concerning the subject of the dispute have the right to appeal to an arbitration court for restitution of judicial act. The author argues that the Russian Supreme Court should establish a common approach to issues concerning restitution of judicial act.

Key words: restitution of judicial act, arbitration court, non-property requirements, plaintiff, defendant

Vakhrushev L. A. (Yekaterinburg, Ural State Law University, e-mail: vahrushevleo@gmail.com) A moment of termination of the obligation by an offset

The author analyzes some doctrinal views concerning a moment of termination of the obligation by an offset and determines three possible solutions of this issue. He represents his own ideas about the proper legal regulation of the institution of termination of the obligation by an offset.

Key words: unilateral contract, termination of the obligation, offset, application for an offset, «retroactive» effect of an offset, legal communications

Rudakov I. S. (Yekaterinburg, Ural State Law University, e-mail: irudakov01@gmail.com) Proprietary subrogation in pledge relations

The author examines different approaches to the nature of a pledge and proprietary rights. He analyzes a number of amendments to the legislation on substitution of a pledged object and tries to find out whether a theory of proprietary subrogation could be applied to them.

Key words: security of the obligation, pledge, mortgage, legal relation, proprietary subrogation

Vikharev A. A. (Yekaterinburg, Ural State Law University, e-mail: 1304050@gmail.com) A contract as an instrument of regulating family relations

The author raises the question on whether family relations could be regulated by contract law. He analyzes the family legislation developments and, on this basis, concludes that a contract as an instrument of regulating family non-property relations plays an increasingly important role in family law. According to the author, there are no any overwhelming obstacles to the contract regulation of family relations, so it could be expanded beyond the contract constructions authorized by law.

Key words: family law, non-property relation, contract regulation of family relations

LABOUR AND SOCIAL LAW

Ramankulov K. S. (Bishkek, Kyrgyzstan, Kyrgyz National University named after Zhusup Balasagyn, e-mail: ramaks65knu@mail.ru) On the development of conceptual system of labour law in the EAEU member states

Using the comparative legal approach the author considers the development of main concepts and categories of labour law («labour contract», «labour relation», etc.) in the labour codes of the EAEU member states. He pays special attention to the adoption of civil concepts by labour law in certain EAEU member states. In particular, he refers to the civil concept of contract invalidity that was borrowed by the labour codes of Belarus and Kyrgyzstan and claims that the legal regulation of invalidity of a labour contract hasn’t finished yet and, therefore, there is a need to develop and introduce the relevant labour law norms in these two countries. The author demonstrates how court practice (i. e. decisions of the supreme courts of the EAEU member states) has affected the formation and development of the conceptual system of labour law in the mentioned states. He comes to conclusion that there are a number of definitions of certain legal concepts in court practice that might be included in the labour legislation of these states almost unchanged.

Key words: conceptual system of labour law in the EAEU member states, legal concept, labour code, labour contract, labour relation, wage, court practice

Sidorov S. V. (Novosibirsk, Novosibirsk State University, city clinical hospital № 1, e-mail: svsidorov@yandex.ru), Chernus N. Y. (Novosibirsk, Institute of Philosophy and Law of the Siberian Branch of the Russian Academy of Sciences, Novosibirsk State University, e-mail: preiudicia@yandex.ru) The legal nature of compulsory health insurance contracts

The authors analyze the legislation on compulsory medical insurance, which is comprehensive and combines features of the public and private legal regulation. They discuss mandatory health insurance contracts, namely a contract on financial security of compulsory medical insurance and a contract for the provision and payment for health care guaranteed by compulsory medical insurance. They argue that the mentioned contracts, as well as the relations arising in connection with the conclusion of them, have a civil nature.

Key words: compulsory medical insurance, contract on financial security of compulsory medical insurance, contract on the provision and payment for health care guaranteed by compulsory medical insurance, commission contract, contract for the provision of services

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 end)

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

Fedorov I. V. (Yekaterinburg, Ural State Law University, e-mail: ruzh@usla.ru) The place and role of investment arbitration tribunals in the system of international courts

The article provides a brief overview of the assessment of international judicial entities in a system context. The author considers the positions of certain domestic and foreign researchers, which are related to the perception of international courts as a system, and proposes to use general procedural categories for building the system of international courts. The article deals with subsystems of courts carrying out international interstate, humanitarian, criminal and civil proceedings. Particular attention is paid to investment arbitration tribunals forming a special community within a number of courts that carry out international civil proceedings. The procedural and substantive features of their activities are highlighted.

Key words: system of international courts, investment arbitration tribunal, procedural regime, legal proceedings

Bando M. V. (Yekaterinburg, Ural State Law University, e-mail: mikban@yandex.ru) On the credibility of the Unified State Register of Immovable Property data on living quarter

The author considers the current legislation, court practice, and drafts of laws concerning the problem of the state registration of rights to living quarter that has not been solved in the wake of the civil law reform. The author focuses on the conclusion of the Constitutional Court of the Russian Federation who mentioned that the absence of any data on the rights of members of the owner’s family to living quarter, which could be contrasted with the third parties, in the Unified State Register of Rights to Immovable Property and Transactions (currently – the Unified State Register of Immovable Property), contradicted the RF Constitution. This conclusion may be transposed to other proprietary rights to living quarter, which could be contrasted with unlimited range of the third parties. The author underlines that a clear list of proprietary rights to living quarter should be firmly established in laws. However, he thinks that the transition to a new system of mandatory registration of proprietary rights has to be gradual.

Key words: proprietary right, state registration of rights to immovable property and transactions, housing law, ownership and other proprietary rights to living quarter, members of the owner’s family

LEGAL ASPECTS OF ECOLOGY

Kruglov V. V. (Yekaterinburg, Ural State Law University, e-mail: v-kruglov@inbox.ru) On the economic and legal measures to protect water bodies from pollution by industrial plants in Russian regions

The author discusses the implementation of the economic and legal measures in order to protect water bodies from pollution by industrial plants. He identifies the following measures: planning and funding of water bodies restoration and protection, environmental audit, introduction of payments for water management and water pollution, environmental insurance of industrial enterprises, their objects, property, and income in the event of natural and environmental disasters.

Key words: economic and legal mechanism, planning of water protection, payments for water management and water pollution, environmental insurance of industrial enterprises

Klyukanova L. G. (St. Petersburg, St. Petersburg State University, e-mail: lorimar13@mail.ru) Environmental priorities: the theoretical and law enforcement problems

The article investigates the concept of environmental priorities as well as their correlation with economic and social priorities. The author claims that environmental priorities have a public nature, and raises the question of their correlation with private interests.

Key words: environmental priorities, environmental interests, environmental safety

SPECIAL CASES

Sorokin M. V. (Aleksin, Aleksin Plant of Heavy Industrial Valves, e-mail: miskam.40-in@mail.ru) Taxation of scholarships – no equality before the law?

The article is devoted to professional training as one of the guarantees of the right to work and education. The author stresses the lack of the unified legal regulation of taxation of scholarships paid to those persons, who take professional trainings, and to those, who receive secondary professional education.

Key words: professional education, right to work, state support

LEGAL HERITAGE

G. V. Ignatenko on the historical continuity and dynamism of the development of international law

LIBRARY

Review of the book: Law basics: textbook for non-law higher education institutions and faculties / ed. by V. B. Isakov. Moscow: Norma; INFRA-M, 2015. – 480 p.

Review of the book: Kaldellis A. The Byzantine Republic: People and Power in New Rome. – Cambridge; L.: Harvard University Press, 2015. – 290 p.