Annotations № 1 / 2018
ROUND TABLE «THE CENTENARY OF THE OCTOBER REVOLUTION»
Tolstykh V. L. (Novosibirsk) Marxism, the October revolution and jurisprudence
The Revolution of 1917 had a global, anti-capitalist and scientific nature. In the author’s opinion, after unsuccessful attempt to realize Marxist ideas in practice, the Soviet government carried out a counter-revolution and, in this regard, the USSR cannot be considered as an implementation of the Marxist project. In fact, it was the Hobbesian state of modern history, based on alienation of man from politics, class contradictions, regular violence and economic exploitation. The author names several reasons for the collapse of the Marxist project: revision of original Marxism, resistance of bourgeois institutions, Russia’s economic backwardness, transformation of capitalism, etc. The alternative of communism still remains open. Russian legal science is represented by two directions. The first, revisionist, is a kind of Western positivism, diluted with citations from Marx. The second, Marxist, is the application of Marxist ideas in the sphere of law and, from author’s viewpoint, has not lost its relevance and could be adopted by modern doctrine.
Keywords: Marxism, capitalism, revolution, state, law, jurisprudence, positivism, normativism
Semitko A. P. (Yekaterinburg) The October revolution of 1917 from the view of human rights
The coup d’état which was carried out by Bolsheviks on October 25, 1917 has laid the foundation for the October revolution, that is a communistic experiment which has come to grief at the end of the last century. The specified events are estimated from the view of human rights. October events had casual character and had lasted three quarters of the century only due to total violence of the Soviet regime. It is stated that positive achievements of the considered period belong only to the Russian people but not to the Soviet power.
Key words: coup d’etat, revolution, human rights and freedoms, legal culture, legal progress, level of security of human rights, criterion of legal progress, legal protection, human rights ideal, legal heritage, terror, violence, legal nihilism
PUBLIC ISSUES AND POLITICAL SCIENCE
Nechkin A. V. (Yekaterinburg) Evolution of forms of government in the countries of the Commonwealth of Independent States and its prospects
In the first decade of the 21st century, the CIS countries tended to change the legal status of presidents, governments and parliaments, and this led to a change in the forms of government. The author applying formal legal and comparative legal methods analyzes the changes and concludes that in the CIS countries the society’s need for increasing the participation of citizens in managing the state affairs is growing, and this entails an increase of influence of parliaments and governments and, as a consequence, a legitimate restriction of the powers of the heads of state. The author expresses conviction that such a trend will continue, and the changes will be either gradual or simultaneous, depending on the farsightedness of the current political leadership of specific CIS countries. However, in any case, they will aim at limiting the powers of heads of state and increasing the degree of hybridization of the existing form of government by means of introducing new institutions that strengthen the influence of parliament and government.
Key words: CIS countries, form of government, form of the organization of executive power, president, government
COMPARATIVE JURISPRUDENCE
Liu Mei (Beijing, China) Defence in criminal proceedings of the PRC: legal and practical aspects
The defence system of the Criminal Procedure Code of the PRC of 1979 is analyzed; the author investigates changes in Criminal Procedure Code of the PRC of 1996 and the consequences of their use. Changes in 2012 are reviewed, the statistical indicators of the criminal cases resolution in China before and after the changes of 2012 are studied in detail. The first part of the article considers the legal side of the development of the defence system in criminal proceedings of the PRC, the status of lawyer at the preliminary investigation stage, improvements of the system of legal assistance, the problems of meetings between the lawyer and the accused, the problems of giving testimony in court, the problems of calling specialist to the court. The second part is devoted to the problems of participation of lawyer in criminal cases, the need to improve the quality of legal assistance. The author also considers new issues that have arisen in judicial practice after the changes of 2012.
Key words: defence in criminal proceedings of the PRC, legal assistance in criminal proceedings of the PRC, changes in the Criminal Procedure Code of PRC 2012, Criminal Procedure Code of the PRC
Mochalov A. N. (Yekaterinburg) Race and ethnic factors in constitutional-law regulation of the territorial structure of Brazil
The character features of the territorial structure of the Federal Republic of Brazil in the context of race and ethnic structure of the Brazilian population are discussed. The author argues that despite of the fact that the Brazilian federalism does not base on an ethnic ground, peculiarities of race and ethnic composition of the population found a reflection in the constitutional provisions of territorial matters stipulated by the Constitution of Brazil of 1988. In the author’s opinion, there are two main aspects of the issue: distinctions between racial structures of Brazilian states and existence of more than 300 indigenous peoples in Brazil conducting traditional way of life on their native lands.
Key words: territorial structure of state, federalism, race, ethnicity, constitution, indigenous peoples, native lands, Brazil
Dembaev B. B. (Astana, Kazakhstan) On property punishments in the Criminal Code of the Republic of Kazakhstan
The author studies the issue of decriminalization and depenalization of criminal offenses on the basis of the Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020. Problematic issues of the application of property penalties are considered. On the example of criminal corruption offenses the author concludes that there are some regulatory gaps in the execution of such criminal punishment as fine.
Key words: criminal-legal policy, property punishment, fine, correctional works
CONSTITUTIONAL LAW AND PROCEDURE
Salenko A. V. (Kaliningrad) Spontaneous and urgent public assemblies: experience and modern problems of the legal regulation in Russia and Germany
The article presents a survey of legal regulation of the freedom of peaceful assembly in Russia and Germany. The author concludes that in Germany the judgments of the Federal Constitutional Court has become an important milestone in the crystallization of legal doctrine of spontaneous and urgent public assemblies; later after federalism reform in 2006 the definition of spontaneous and urgent public assemblies has been formalized in provisions of the legislation of German federal states. The author researchers the development of the legal regulation on the freedom of peaceful assembly in Russia and concludes that there is a loophole in the Russian constitutional legislation with regard to this types of public assemblies. Based on the comparative constitutional research the author provides recommendations concerning modernization of the Russian public assembly law; formalization in legislation of the definition and procedure of spontaneous and urgent public assemblies.
Key words: freedom of peaceful assembly, public assembly law, notification, spontaneous demonstration, flashmob, Federal Republic of Germany, Russian Federation
Kandrina N. A. (Barnaul) Constitutional-law regulation of the realization of the citizens’ right to provide state and municipal services: current state, problems and solutions
The state of constitutional-law regulation of the rights concerning state and municipal government services is analyzed in order to reveal the key problems and determine the priorities for its improvement. The comparative-legal analysis of several constitutional-law provisions and norms of the Federal Law from July, 27, 2010 № 210-FZ «On the Organization of the Provision of State and Municipal Services» is held; provisions of constitutions and laws of the subjects of the RF in the above mentioned sphere are analyzed. The author comes to a conclusion that the legislative system of citizens’ rights concerning state and municipal government services provision is missing; several norms of the Federal Law «On the Organization of the Provision of State and Municipal Services» are illegal; the scientific research on this issue is one-sided and incomplete. The author makes some suggestions on further development of the scientific, constitutional-law research of essence, forms, directions, content, subjects, guarantees and limitations in the realization of citizens’ rights concerning services provision; amendments to the federal legislation; development of the regional constitutional-law practice including delineation of responsibilities between a representative body and a local administration and other executive bodies of municipal entities within named area.
Key words: state services, municipal services, state and municipal government services provision, citizens’ rights, constitutional-legal regulation
CRIMINAL LAW AND PROCEDURE
Pisarevskii I. I. (Krasnoyarsk) On the validity of a sentence pronounced on the basis of a verdict of the jury
The article is devoted to the question on whether sentences pronounced on the basis of a verdict of the jury are valid or not. This problem is solved by means of analysis of history of Charter of criminal proceedings of 1864 and European Court of Human Rights practice. The author claims that the validity of a sentence is discovered primarily by the questions formulated for the jury in the question sheet and is provided by a sum of guarantees. The main ones are guarantees related to the procedure of the formation of the verdict, and guarantees related to the content of the question before the jury. Comparison between the mentioned guarantees and Criminal Procedure Code of the Russian Federation provisions leads to the conclusion that domestic legislation is not required for any reforms and, when properly applied, is able to ensure compliance with all the guarantees set out in the ECHR practice.
Key words: verdict, sentence, jury, validity, European Court of Human Rights, proof
Sitnikova M. P. (Kirov) Criminological characteristics of an offender in the sphere of extremist activities of youth
The author determines a number of criminological characteristics of offender-extremists from the youth environment through the study and analysis of criminal cases of the relevant category, personal files of convicts, as well as interviewing some of them. The author considers general and special signs of personality of such offenders. The author’s version of a typology of extremists is suggested. As a result, a criminological profile of an extremist and an extremists-leader of a criminal group is created.
Key words: youth extremism, extremist activity, extremist youth formation, criminological profile of offender
CIVIL LAW AND PROCEDURE
Gyulumyan V. G. (St. Petersburg) Theories of a legal entity: classification issues
The classifications of theories of a legal entity presented in legal doctrine are investigated and their defects are revealed. Lack of the criteria allowing to differentiate accurately theories of the legal entity is noted. As a result, theories containing essential differences and opposite doctrinal provisions are included into the same group. The goal of the article is to group foreign and domestic theories of a legal entity by means of classification method and to define possible and admissible limits of their combination at complex researches. It is offered to classify theories of a legal entity depending on their attitude towards the need of legal entities for civilized law and order (criterion of modality) and on this basis to divide them into positive and negative. The last group of theories depending on whether or not they recognize legal entities as persons of law is subdivided into theories allowing such opportunity (moderately negative or formalized), and theories excluding it (extremely negative). Positive theories of a legal entity are differentiated concerning a question of cognoscibility of a phenomenon of a legal entity. One theories (agnostic theories or theories of personification) proceed from the assumed (fiction) reality of a legal entity whose strong-willed acts are carried out by his representatives – natural persons; and others (gnostic theories or theories of the real subject) – from provability of existence of a legal entity as a self-governed social personality. The conclusion on logical incompatibility of doctrinal provisions of the theories carried to different types within the offered classification is drawn.
Key words: theory, legal entity, criterion, classification, fiction, real subject
Artemova А. N. (Novosibirsk) The fictitious nature of a legal entity as the basis for applying the doctrine of «piercing the corporate veil»
The article analyzes the essence of a legal entity, examines the fundamental theories of fiction and reality of a legal entity, studies the relationship between the theory of the essence of a legal entity that dominates in the state and the relation to the problem of limited liability of a legal entity, enshrined in legislation and jurisprudence. The author comes to a conclusion on the fictitious nature of a legal entity at the present time and the consequent problem of abuse of the corporate form by the persons controlling the legal entity and offers an adequate legal solution to this problem.
Key words: essence of a legal entity, theory of fiction, theory of reality, theory of target property, principle of limited liability of a legal entity, doctrine of «piercing the corporate veil»
Leskina E. I. (Saratov) Estoppel in the Russian civil procedure
The author defines the legal nature of estoppel and the spheres of its manifestation in the civil and arbitration procedure, analyzes the relationship between estoppel and the principle of good faith, the inadmissibility of abuse of procedural rights. Various interpretations of the legal essence of estoppel as a principle, institution, rule, the relationship between estoppel and legal axioms venire contra factum proprium, allegans contraria non audiendus est are considered. The author explores various types of estoppel in the civil procedure: estoppel from the agreement of the parties, jurisdictional estoppel, estoppel from the competence of a court or arbitral tribunal. The article estimates the expediency of using the term «estoppels» in doctrine, jurisprudence, legislation.
Key words: estoppel, civil procedure, civil legal proceedings, arbitration proceedings, good faith, abuse of rights, axioms, principles
Zaykov D. E. (Moscow) Procedural principles: problems of legal regulation
The importance of the principles of law and their use in law enforcement practice are analyzed. The procedural principles of the Arbitration Procedure Code of the Russian Federation and the Civil Procedure Code of the Russian Federation are critically examined. It is substantiated that the existing legal regulation of procedural principles in arbitration and civil proceedings varies considerably and is imperfect, and this negatively affects the administration of justice, the possibility and extent of the exercise of the right to judicial protection. One of the reasons of this situation is juridical and technical shortcomings of the legal regulation of procedural principles that should be eliminated.
Key words: principles of law, arbitration procedure, civil procedure, juridical and technical shortcomings
ADMINISTRATIVE LAW AND PROCEDURE
Kononov P. I. (Kirov) Modern administrative law of Russia: an effort for the system and legal characteristics
The necessity to re-evaluate the understanding of administrative law as a law of state management and to produce modern approaches to determination of an object, a place and a role of the given branch of law in the legal system of the Russian Federation are substantiated. The author proposes his understanding of branch of law and gives general characteristic of modern Russian administrative law, singles out the spheres of social relations regulated by this branch of law and the functions of administrative and legal norms in the regulation of these relations, determines a place and functions of administrative law in the system of branches of domestic law.
Key words: branch of law, administrative law, system of law, relations, executive body, administrative-public body
Beketov O. I. (Omsk), Oparin V. N. (Krasnodar), Surgutskov V. I. (Omsk) The sphere of internal affairs and a modern system of law-enforcement authorities of Russia
The article contains the analysis of such fundamental concepts as «sphere of internal affairs» and «law-enforcement authorities». The criteria for assigning bodies to law enforcement bodies are proposed. Structural elements of modern law enforcement police system of the Russian Federation are listed. Rge authors conclude that there is a need to develop uniform approaches to empowering the relevant authorities with police powers, forming of legal standards of the latter, their structure.
Key words: strategy, internal affairs, law-enforcement authorities, police, coercive measures
LABOUR AND SOCIAL LAW
Farafontova E. L. (Krasnoyarsk) Problems of legal regulation of informal relations at the conclusion of a labour contract
The guarantee of the rights of the parties to the labour relationship is an important condition for the positive development of the rule-of-law state. One of the rules ensuring the proper implementation of the rights of an employee at the stage of concluding a labour contract is the need for its written registration. However, today there are many unregistered labour relations in Russia, and this generates negative consequences for the workers themselves and the economy of the state as a whole. The article deals with the imperfections in labour norms that establish the rights and obligations of participants in an unregistered labour contract and elaborates proposals to address these legal problems.
Key words: guarantees, employee, employer, refusal to register labour contract, actual admission to work by unauthorized person
Shvaleva E. S. (Yekaterinburg) The limits of labour function correction within the labour mobility regulation
The article refers to the labour mobility matters concerning correction of labour function by labour law means. The author analyzes labour laws and legal cases positions related to the procedure and conditions for establishing and correcting job duties. The absence of legal coherence in above mentioned matters is observed.
Key words: mobility, labour function, correction of labour function, job description, occupational standard, reference book
EXPERTISE
Dyakonova O. G. (Novomoskovsk) Court expertise and property valuation: problems of delineation and legislative regulation
Common forms of using special knowledge in legal proceedings are court expertise and the involvement of a specialist for consultation or for provision of technical or other assistance to the person dealing with a case (investigator, judge). However, a number of provisions of normative acts regulating various forms of using special knowledge, leads to contradictions in practice. This applies to the problem of distinguishing court expertise and valuation of property, the result of which – the evaluation report – is submitted to the court on a number of categories of cases and is exploited as evidence in the case, and the appraiser is called to court as a procedural personality with uncertain status. The author defines the concept of court expertise and highlights its characteristics as a procedural action. The article presents the grounds for differentiation of court expertise and valuation of the property: types of activities, their goals and objectives; subjects of activities; objects of valuation and court expertise; reasons for their conduct; final results of activities (a valuation report and a report of court expertise). The author analyzes each ground and reveals common features and differences of court expertise and valuation of property. In addition, the article examines the correlation of court expertise and expertise of valuation report. The author underlines the necessity to amend the procedural legislation for the purpose of solving the issues mentioned above and to improve the judicial practice in a number of categories of cases in which special economic knowledge is used.
Key words: judiciary, court expertise, expert, specialist, property valuation, appraiser, expertise of property valuation report
ECONOMICS AND LAW
Grigoryev A. S. (Yekaterinburg) Elimination of international double taxation on personal property tax in Russia and Tajikistan
The article deals with the domestic and international legal regimes of elimination of international double taxation on personal property tax in the Russian Federation and in the Republic of Tajikistan on the basis of a comparative legal analysis of the provisions of the tax legislation of these states and agreements on avoidance of double taxation concluded by the Russian Federation and the Republic of Tajikistan with foreign states. It is substantiated that the elimination of double taxation on personal property tax in both states can be achieved also by applying the tax credit provisions of agreements.
Key words: property tax, double taxation, tax credit, tax resident, Republic of Tajikistan
PROBLEMS OF LEGAL EDUCATION
Rusinov R. K. (Yekaterinburg) On some problems of pedagogical activity in law institutions of higher education
Some methodical and socio-psychological matters of pedagogical activity in law institutions of higher education are considered. The modern generation of students of law universities, trained right after they had graduated from the secondary school, requires the use of special methods and forms of pedagogical activity.
Key words: juridical education, aims of education, socialization of students, intersubject connections
Afonichkina N. V. (Saransk) On the methodological function of general theory of state and law
The article raises questions about the selection of general theory of state and law as a foundation and methodological guide for special legal sciences. It substantiates that general theory of state and law, even under crisis, has its own subject, consisting in the study of state-legal reality at a high level and with the predominance of the objective moment in cognition. The author notes that the successful training of highly qualified lawyers depends on the status and achievements of all legal sciences, but primarily on the statements of general theory of state and law closest to scientific truth.
Key words: methodology, object of science, subject of science, essence of law, will of state, justice, human rights, function of science, scientific cognition
LEGAL HERITAGE
Ural scientific school of law
M. I. Kovalyov on the sources of criminal law (a brief introduction by S. V. Kodan)
PAGES OF HISTORY
Bakhteev D. V. (Yekaterinburg) History of the development of theory of investigative situations in domestic forensics
The article deals with the development of theory of investigative situations and situational approach in forensics. Classical and modern ideas about the concept of investigative situation are revealed, main features of investigative situations are considered. The author analyzes main problems of theory of investigative situations, its place in the system of forensics.
Key words: investigative situation, situational approach, information approach, crimes investigation
Smirnov V. N. (Yekaterinburg) Red Terror in the Urals (1923–1940)
The article opens a series of author’s publications on repressions of the Ural lawyers. It presents a general characteristic of the Great Cleansing, or the Great Terror, its sprawl and shutdown. The author uses various sources including previously unknown or undisclosed ones.
Key words: October Socialist Revolution, Сonception of state policy on a perpetuating of memory of the victims of political repressions, NKVD, non-judicial bodies – troikas, falsification, rehabilitation