Annotations № 3 / 2018

THEORY OF STATE AND LAW

Kuchin M. V. (Yekaterinburg) Forms of judicial rule-making

The article explores the widespread doctrinal views on the forms of judicial rule-making. On the basis of the analysis of the current legislation and law-enforcement practice, the author attempts to classify formal sources, that ensure norms created by court, and their objective characteristic is given.

Key words: rule-making, judicial rule-making, judicial precedent, sources of law

COMPARATIVE JURISPRUDENCE

Berzin’ O. A., Dubrovskaya A. V., Kleponosova M. V., Ryabinina E. N. (Nizhny Novgorod) Legal regulation of intellectual property in China

There is a comprehensive analysis of legal regulation of intellectual property in China in the context of its accession to the World Intellectual Property Organization and the World Trade Organization. The authors examine international agreements in the field of intellectual property, to which China joined, as well as its national legislation. It is established that in China the recognition of the right to intellectual property objects at the legislative level began from the moment of its accession to a number of international conventions and agreements in this field. National legislation on intellectual property in China is represented by three blocks: copyright laws, regulations governing the use and protection of trademarks, patent laws. Resolution of issues arising in the field of regulation and protection of intellectual property in China is carried out in two different ways: administrative (appeal to administrative bodies for the purpose of establishing a legal regime for the protection of the results of intellectual activity, and in the event of violation of intellectual rights of various entities), judicial (resolution of disputes over intellectual rights in courts). The authors come to conclusion that despite compliance of the legislation of the People’s Republic of China in the sphere of intellectual property to the international standards and functioning of numerous public authorities responsible for protecting intellectual property, this system works inefficiently that causes high percent of violations in the considered sphere.

Key words: intellectual property, Chinese legislation, objects of intellectual property, copyright, patent law, World Intellectual Property Organization, TRIPS Agreement

Tolstykh V. L. (Novosibirsk), Grigoryan M. A. (Stepanakert), Kovalenko T. S. (Lugansk), Khalabudenko O. A. (Kishinev) Problems of formation and functioning of legal systems of unrecognized states

There are six unrecognized states (UrS) in the post-Soviet space. All of them were formed as a result of armed conflicts between a compactly residing minority and a state striving for national unification. The political goal of the UrS is usually a reunion with a close ethnos. Some UrS (Pridnestrovian Moldavian Republic, Republic of South Ossetia, Nagorno-Karabakh Republic, Republic of Abkhazia) are building an independent order, following Russia or Armenia. Lugansk and Donetsk peoples’ republics, whose political future is not clear, are building an ad hoc construction: they de facto follow the strategy of rapprochement with Russian law; allow the application of Ukrainian laws and try to create common legal institutions symbolizing integration intentions. UrS that have already built state institutions are carrying out reforms aimed at ensuring their sustainable functioning. LPR and DPR center on laws in the sphere of state building which fixe special regimes and establish governmental institutes.

The judicial system of the UrS most often copies the Russian one and includes courts of general jurisdiction, arbitration courts and a constitutional court. The non-recognition causes a number of organizational problems: deficit of guarantees of judicial independence, corruption, lack of funds and resources, low legal culture. In addition, there are a number of objective problems: non-enforcement of the decisions of the UrS’ courts abroad, parallel jurisdiction, imputation of due process violations.

UrS passports are recognized by Russia, but are not recognized in other countries. This problem is partially solved by the acquisition of dual citizenship. Laws on citizenship of the UrS usually meet international standards; the law on the citizenship of Abkhazia is an exception.

Economic entities of the UrS are registered by the law of the UrS. Their legal personality is recognized in Russia. The laws of UrS on property are drawn up on the basis of Soviet and Russian models and, as a rule, are quite liberal. In some UrS, however, there are systemic problems: lack of guarantees of property rights, incomplete privatization, prohibition of transactions with land.

In recent years, almost all of the UrS have been trying to modernize the economy and investment legislation. Some mother states try to restrict entrepreneurial activity in the UrS.

The criminality in the territory of most of the UrS is of a social nature: a difficult economic situation constitutes a breeding ground for robbery.

The level of legal education and science in the UrS is quite low.

Key words: international law, comparative law, unrecognized states, legal system

Loginov A. V. (Sukhum, Republic of Abkhazia) Constitutional foundations of independence of the judiciary in the Republic of Abkhazia

The article explores the provisions of the Constitution and laws of the Republic of Abkhazia enshrining the independence of the judiciary. The definition of the terms «judiciary» and «justice» is given. The impact of the other branches of government on the judiciary is analyzed.

Key words: Constitution of the Republic of Abkhazia, independence and autonomy of the judiciary, tenure of judges, limitation of the judges’ term of office, judicial law-making

CONSTITUTIONAL LAW AND PROCEDURE

Karasev A. T., Savos’kin A. V. (Yekaterinburg) A deputy’s request as a form of appeal of deputies of the Russian Federation subjects

The article presents the analysis of a deputy’s request as a form of deputy’s appeal and the results of a study of the institution of deputy’s request on the example of legislation of all subjects of the Russian Federation (including the Republic of Crimea and the city of federal significance Sevastopol). It is established that the universal right of a deputy to send appeals is provided in all regional laws (except for the Saratov region), whereas the right to a deputy’s request is represented only in half of the subjects of the Russian Federation. In the subjects of the Federation there are two forms of deputy’s requests: traditional and quasi-parliamentary, as well as a special but rare type of deputy requests – interpellation. A quasi-parliamentary request in laws of the subjects of the Federation is called «deputy’s», is initiated by a deputy, but is recognized as such only by a decision of the representative (legislative) body of the subject of the Federation. The authors come to a conclusion that the subjects of the Russian Federation should abandon the form of the quasi-parliamentary deputy request and delineate the traditional deputy request and the classic parliamentary request; at the same time it is useful to strengthen the traditional deputy request through its obligatory disclosure (and subsequently through the response to it) at the meeting of the representative body (with the possibility of discussion, but without voting).

Key words: deputy’s request, parliamentary request, appeal, deputy

LOCAL SELF-GOVERNMENT AND MUNICIPAL LAW

Shugrina E. S. (Moscow) Territorial limits of the jurisdiction of local self-government bodies (on the example of school education)

In the article the features of the organization of educational services for schoolchildren residing on the territory of a settlement of a municipal district and trained in an educational institution of a neighboring urban district are considered. In law enforcement practice, there is a question of which of the municipalities in this situation should be responsible for the transportation of schoolchildren: a settlement, a municipal district or a city district – and how such transportation should be financed. Whatever the answer is, it is obvious that the expenditure of local budget funds is related to activities outside the municipality. The issues of «extraterritorial jurisdiction» of local self-government bodies are explored on this example.

Key words: municipal formation, territorial accessibility, right to education, educational services, transportation of students, educational organization

CRIMINAL LAW AND PROCEDURE

Barabash A. S. (Krasnoyarsk) On the method of fixing the content of a principle of the criminal procedure, the field of its implementation and its addressees

The article is connected with the article «The place and role of a principle in the Russian public criminal procedure» published in the 2nd issue of the journal of 2018. It considers the issues of a minor importance, which, nevertheless, allow to penetrate more deeply into the essence of a principle of the criminal procedure. Firstly the author tries to find out whether it is permissible to derive the content of a principle by interpretation of norms. The answer is no because of the understanding of the place and role of the principle in the Russian public criminal procedure. The author also refutes the idea stated in procedural literature that the principle should be realized at all stages of the criminal procedure and asserts that the only principle that satisfies this requirement is the principle of legality. The analysis of the chapters «General conditions for the preliminary investigation» and «General conditions for the proceedings» of the Criminal Procedure Code of the RF shows that general conditions and principles have different algorithms and so general conditions cannot be understood as principles of stages of the criminal procedure. The author calls into question the possibility of imposing the implementation of principles of the criminal procedure on its participants, and, due to the understanding of the procedure of Russia as based on a public beginning, proves that only state bodies could be considered as subjects of implementation of principles.

Key words: interpretation, content of a principle of the criminal procedure, general conditions of stages of the criminal procedure, field of implementation of principles, subjects of implementation of principles

Zelenina O. A. (Yekaterinburg) Some issues of institution of criminal proceeding in cases of identification of a new crime or a new person during the preliminary investigation

The article raises the question of whether there is a need to issue the order on institution of criminal proceedings in cases of identification of a new crime or a new person during the preliminary investigation. The author proves that the decision on initiation of criminal proceeding should be taken on the basis of particular circumstances. It is substantiated that, in cases of identification of a new person during the preliminary investigation, there is no need to issue the order on institution of criminal proceedings. In cases when information about a new crime event appears during the investigation, the decision needs to be taken on the basis of legal nature of this event (a single criminal event, a continued crime or interrelated crimes). The author proposes the solution of the mentioned question taking into account the need to protect the rights and interests of participants in criminal proceedings and also to improve the legislative technique.

Key words: stage of the preliminary investigation, suspect, order on institution of criminal proceedings, protection of rights and freedoms, participants in criminal proceedings

Sapparov R. Kh. (Moscow) The analysis of foreign legislation on combating the legalization of criminal proceeds acquired as a result of corruption offenses

The article analyzes foreign legislation (namely the legislation of the USA, Argentina, Belgium, Germany) on combating the legalization of criminal proceeds acquired as a result of corruption offenses. Based on the results of the study, the author comes to the conclusion that there are two basic approaches to the legislative consolidation of the relationship between money laundering and corruption crimes: repressive and limited repressive.

Key words: money laundering, corruption, USA, Argentina, Germany, Belgium

QUESTIONS OF INVESTIGATION AND OPERATIVE-RESEARCH ACTIVITY

Drapkin L. Ya. (Yekaterinburg) The new edition of part 1 of Article 144 of the Criminal Procedure Code of the Russian Federation and the transformation of the structure of investigation process

The article examines the impact of changes and amendments to part 1 of Art. 144 of the Criminal Procedure Code of the Russian Federation on the structure of investigation of crimes. The author notes that actually a new stage in the structure of investigation has emerged – a preliminary one, and that allowed to optimize the process of disclosure and investigation of crimes. In this regard, the content and functions of the initial stage of investigation have changed. The author argues in favor of the positive value of this procedural novel for the forensics theory and investigative practice.

Key words: procedural novel, stages of investigation of crimes, verbal and non-verbal investigative actions, search activities, problem situations

CIVIL LAW AND PROCEDURE

Semyakin M. N. (Yekaterinburg) Legal techniques in the methodology of civil law

The author considers scientific views on the construction of «legal technique», its structure, and its correlation with adjacent categories. He shows that legal techniques not only perform the organizational and technical function, but also serve as an important means of understanding the civil reality.

Keywords: legal techniques, technologies, methods, logical and linguistic constructions, civil legislation, civil practice

Boriskina N. I. (Moscow) Other documents and materials as evidence in civil proceedings

Тhe article discusses some relevant issues concerning other documents and materials as evidence in civil cases. The author believes that their legislative consolidation allows to involve the important evidentiary information which cannot take the traditional procedural form. On the other hand actual implementation of the idea about the inclusion of other documents and materials into the list of evidences raises particular questions, therefore, is not entirely successful.

Key words: other documents and materials, traditional and non-traditional proofs, written form of evidence, written evidence, audio and video recordings as evidence

Stantsel V. A. (Moscow) On the concept of codification in terms of current development of civil procedure science

The article describes the actual conceptions of codification of civil procedural legislation, its forms and criteria, possible ways and difficulties of codification. Besides that, it analyzes some issues concerning the system of civil procedure law, the correlation between the system of law and the system of legislation, theoretical problems of law-making.

Key words: civil procedure, codification of civil procedural legislation, system of civil procedural law, administration of justice

ADMINISTRATIVE LAW AND PROCEDURE

Drozdov D. E. (Moscow) On the concept and types of law enforcement officials

On the basis of the analysis of normative legal acts and scientific research the author considers the concept of law enforcement official. He also develops a classification of law enforcement officials on various grounds, including the right to implement operative-research activities. It is concluded that there is a logical error in the Federal law «On state protection of judges, law enforcement officials and officials of controlling bodies»: in its provisions officials of state security bodies are highlighted along with law enforcement officials, and that is obviously redundant.

Key words: official, government representative, law enforcement bodies, classification, law enforcement official, federal law

LABOUR AND SOCIAL LAW

Chesalina O. V. (Munich, Germany) Challenges of the digital economy for social security law: social security of digital platform workers

The article analyzes the question of how to provide social security for digital platform workers (crowdworkers and workers on demand via apps), taking into account that their legal status is not defined in legislation. In practice, they are classified as self-employed persons, despite the fact that platforms use control mechanisms. The author investigates proposals elaborated in labor law and social security law and aimed at addressing the issue of legal classification of digital platform workers and their social security. She evaluates these proposals and seeks to answer the question whether it is possible to ensure social protection of digital platform workers by merely reforming social security legislation without amendments to labour legislation.

Key words: digital economy, internet platform, social security, social insurance, crowdwork, work on demand via apps

Bychkova K. M. (Moscow) Insurance in case of loss of earnings due to insolvency (bankruptcy) of the employer

The author substantiates that protection of employees’ rights in case of bankruptcy of the employer can be provided through a special mechanism of receiving by the employee of his earnings in the shortest terms, namely social insurance system in case of loss of earnings due to insolvency (bankruptcy) of the employer. She wants to know whether it is possible to implement the institution, successfully established in France, in the Russian reality and proves its applicability and effectiveness, taking into account similar legal institutions that are currently used in Russia. The author describes the basic elements of the proposed insurance system: mechanism of insurance, volume of insurance coverage, terms of payment, role of the insurer, order of transition of requirements to the insurer for the amount of payment, distribution priorities. The article proves the necessity of using subrogation for the claims of employees, paid by the insurer, under bankruptcy procedure in order to finance the insurance system, impose liability on the person, responsible for the occurrence of failures, and to contain the insured, in particular to prevent his unjust enrichment.

Key words: bankruptcy, distribution priorities, privileges, insurance, French law, employees

PAGES OF HISTORY

Loshkareva M. E., Dolkova E. A. (Nizhny Novgorod) Medieval legal triads

The article is devoted to the legal triads of Medieval Wales. Triads were the special genre of Medieval Welsh literature. The legal triad collections were found in the Welsh manuscripts of 13–15th centuries which contain one of the three redactions of The Law of Hywel Dda. Triads are one of the striking features of the medieval Welsh legal texts. There are reasons to believe that towards the end of the 13th century, the lawbooks were used mainly as mnemonic aids in the educational process and legal triads might testify in favor of this version. The legal triad collections, which complemented the lawbooks, normally did not contain any new legal material with regard to the texts.

Key words: triads, Law of Hywel Dda, Welsh law

Tret’yakova E. S. (Perm) The implementation mechanism of the Russian Empire foreign policy in the 19th century: the historical and legal study

The author defines the implementation mechanism of the Russian Empire foreign policy in the 19th century and describes three its components: functional, institutional and regulatory, by using the original sources (acts of national legislation and international legal acts of the period under study). The author also identifies some problems of the mentioned mechanism: lack of the comprehensive concept of foreign policy, a catch-up nature of political development, the instable system of internal and foreign bodies of international relations, lack of adequate personnel policy, insufficient financing, lack of a clear understanding of the relationship between international and national law, and others. However, it is concluded that in the 19th century there was a high-quality institutional and legal basis for the modern mechanism of foreign policy.

Key words: mechanism of foreign policy, 19th century, Ministry of Foreign Affairs, legalization of cooperation between Russia and foreign countries

LEGAL HERITAGE

Ural scientific school of law

D. D. Ostapenko оn an armed intervention as the most serious international crime (a brief introduction by T. M. Bazhenova, S. V. Kodan)