Annotations № 5 / 2018

COMPARATIVE JURISPRUDENCE

Irkhin I. V. (Krasnodar) The concept of territorial autonomy and features of its implementation in foreign countries

In this article author considers territorial autonomy in three dimensions: as a principle, as a form of territorial organization of the community and as a legal regime. The analysis of the constitutional-legal parameters of the status of territorial autonomies of foreign countries indicates that the following main characteristics could be attributed to them: 1) objectively inherent identity (national-ethnic, cultural, religious, geographic); 2) fixation of expanded, diverse competence (in comparison with competence of other domestic entities) for the implementation of self-government, which allows the configuration of a separate legal order; 3) personification of guarantees of implementation, security and protection of constitutional-legal status; 4) availability of financial and other resources for implementation of authority in relation to the specified subjects matters. Two types of territorial autonomies: full (strong) and limited (weak) are accentuated. Comparative analysis of territorial autonomies, subjects of federations, administrative-territorial units of unitary states is carried out. The conclusion is drawn that the main difference of territorial autonomies is a personified constitutional-legal status, within which other specific features are focused. The features of the constitutional-legal status of autonomous communities in Spain, regions in Italy are examined. The definitions of regionalist state and subnational units that are included in such a state are formulated.

Key words: territorial autonomy, subject of federation, administrative-territorial formation of unitary state, regionalist state, regions, autonomous communities

INTERNATIONAL LAW

Marochkin S. Yu. (Tyumen) The European Court of Human Rights and the Constitutional Court of Russia twenty years later: back to the future?

The article provides a generalized assessment of the 20-year period for the inclusion of Russia in the European system of protection of rights, the interaction of the European Court of Human Rights (ECHR) and the Constitutional Court of Russia (CC). The study was conducted on the basis of an extensive array of decisions of the CC, which is necessary to identify the development of its attitude to the positions and decisions of the ECHR. The main forms of their application, the key legal positions of the CC relating to acts of the ECHR are shown. A larger segment of the period under review was marked by a generally consistent and positive attitude of the CC on their implementation within the framework of the obligations under the Convention. A significant part of the article is devoted to the analysis of the «reversal» that took place in mid-2015 in the interaction of two courts and the fulfilment of Russia's international obligations. The decision of the CC dated July 14, 2015, and the decisions adopted in its development in 2016 and 2017, in fact, gave a legal form to the change in attitude towards the ECHR, which is even accompanied by calls for revision or cancellation of part 4 of art. 15 of the Constitution of the Russian Federation. There is a tendency to retreat from integration, international law and international justice.

Key words: European Court of Human Rights, Constitutional Court of Russia, Constitution of the Russian Federation, Convention for the Protection of Human Rights and Fundamental Freedoms, international obligations of Russia, execution of decisions of the ECHR

Tyurina N. E. (Kazan) Codification of international economic law: special features and perspectives

The analysis of contemporary International Economic Law (IEL) in the aspect of codification is the point of the article. The subject of consideration comprises special features of IEL effecting the process of codification in this area and approaches of international lawyers to the role of codification for the formation of a brunch of law, and the problems arising in the absence of a single act for the principles of IEL. To the author’s opinion, consolidation of corresponding international legal acts might improve the situation. It is stated that the codification process in the field of IEP has its own specifics: it takes place at the level of sub-branches and institutes of IEL, at the regional level.

Key words: International Economic Law (IEL), sub-brunches of IEL, codification, act of codification, WTO Law, consolidation

Lazutin L. A. (Yekaterinburg) Ideals of the Universal Declaration of Human Rights and the modern world

The article provides a historical background for the development and adoption of the Universal Declaration of Human Rights of 1948, the role of the United Nations in matters of ensuring and protecting human rights and the establishment of treaty bodies as effective international mechanisms for the ensuring of human rights is considered. The influence of the provisions of the Universal Declaration of Human Rights on the progressive development of modern international law is assessed.

Key words: human rights, international human rights standards, international mechanisms for the protection of human rights, treaty bodies

CONSTITUTIONAL LAW AND PROCEDURE

Khudoley K. M., Khudoley D. M. (Perm) History and prospects of development of the constitutional (statutory) justice in the subjects of the Russian Federation

The problems interfering efficiency of activity of the constitutional (statutory) courts of the subjects of the Russian Federation are investigated. The history of the creation of bodies of the constitutional (statutory) justice of the subjects of the Russian Federation, including cases of suspension or cancellation of laws on these courts, and also liquidation of the specified bodies are shown. A conclusion is drawn that the activity of the constitutional (statutory) courts is interfered by the political and financial reasons. The authors, based on the inadmissibility of the adoption of a federal framework law on constitutional (statutory) courts of the Russian Federation subjects, offer to provide in the legislation of each subject of the Russian Federation for a number of rules aimed at increasing the independence and efficiency of the courts. They also consider it necessary to establish in the federal legislation on the status of judges a provision allowing judges of the constitutional (statutory) courts of the subjects of the Russian Federation to work on an un-released basis.

Key words: constitutional (statutory) court, judge, powers of court, status of the judge, constitutional (statutory) control, constitutional (statutory) justice

CRIMINAL LAW AND PROCEDURE

Kozachenko I. Ya., Menshikova A. G. (Yekaterinburg) Special sufferings as a characteristic of special cruelty in the commission of a crime

Based on the results of the analysis of the criminal law doctrine, the decisions of the Plenum of the Supreme Court of the Russian Federation, the materials of judicial practice related to the consideration of criminal cases on the charge of murder with special cruelty and attempted murder with special cruelty in assessing suffering as a key characteristic of special cruelty, the authors propose to define suffering precisely as special without using their other descriptions; it is substantiated that such variants of the characteristics of suffering as «heavy», «additional», «exceptional», «strong», «lifetime», «multiple», «long», «extraordinary» and others do not bring terminological clarity in understanding of the special cruelty. The authors propose to consolidate this provision at the level of explanations of the highest court that will facilitate a uniform interpretation in the investigative and judicial practice of special cruelty in committing various kinds of crimes.

Key words: special cruelty, suffering, special sufferings

Levin S. M. (St. Petersburg) The necessity of distinguishing between legal and medical terms in the discussion of sexual abuse of children

Many people associate crimes against sexual inviolability of persons under the age of consent with the paedophilia – a disorder of sexual preference, media and even special literature often refer to all those who committed such crimes as paedophiles. This confusion of concepts despite its prevalence is erroneous. Not all those who commit those crimes turn out to be paedophiles, and not all paedophiles are necessarily offenders. The purpose of the article, firstly, to pay attention to a widespread terminological error and, secondly, to identify the negative consequences of the confusion of legal and medical terms in the discussion of sexual abuse of children. The author summarises some conclusions of the modern legal and medical literature on the problem of sexual violence and the actions against it. The article takes into account the data of empirical research aimed at identifying the causes of crimes against sexual inviolability of minors. The result of the study is the identification of two negative consequences from the confusion of the concepts of a paedophile and a sex offender. Firstly, this can interfere with the establishment of truth in the investigation and trial of cases of defilement, seduction and sexual abuse of minors, since it allows offenders to invoke the absence of a diagnosis of «paedophilia» as evidence of their innocence. Secondly, it disorients the policy on prevention of sexual abuse of children, because it creates an illusion of homogeneity of a group of offenders who committed crimes against sexual inviolability of minors.

Key words: sex crimes, sexual abuse of children, paedophilia, crimes against sexual inviolability, minors

Pudovochkin Yu. E., Andrianov V. K. (Moscow) Structural patterns and rules for constructing sanctions of criminal-legal rules

The contradictory, unsystematic nature and inconsistency of sanctions of criminal-legal rules create obstacles to proper enforcement and effective protection of individual, society and state. In an effort to overcome this negative factor, science has developed a number of important rules for the construction of sanctions, however, not all of them are effective enough. Meanwhile, at the basis of the evolution, functioning and structural construction of sanctions of the criminal law lie certain objective laws, which allow revealing the essence, the logic of sanctions, their internal and external relationships. The study of the patterns of the construction of sanctions in the general context of other patterns of criminal law constitutes a new direction in the development of Russian science. The article presents an author's view on the concept of patterns for constructing sanctions, their correlation with legal and technical rules. The pattern of the co-response of the type and amount of punishment provided in the sanction to the nature and degree of public danger of the act contained in the dispositions are determined as the basic one. On its basis, other structural patterns are established and analysed; cases of the inconsistency of existing sanctions with these patterns are revealed; general requirements for the proper construction of sanctions are formulated.

Key words: patterns of criminal law, patterns of sanctions construction, systemic nature of criminal law, legal technique, social danger

CIVIL LAW AND PROCEDURE

Yarkov V. V. (Yekaterinburg) The correlation between judicial acts obligatory nature and enforceability

Considering the issues of the relation of obligatory nature and enforceability of judicial acts, the author comes to the conclusion that the obligatory nature of judicial act acts as a legal fact within an absolute legal relationship, and the legal consequences of compulsory execution of a judicial act define it as a legal fact within a relative legal relationship. The differences in these categories in terms of judicial acts and persons covered by the enforceability and obligatory nature are noted. The difference between them is also manifested in the forms of implementation of judicial acts, the consequences of non-compliance with a judicial act, ways to counter such consequences on the part of interested parties.

Key words: legal force of a judicial act, obligatory character of a judicial act, feasibility of a judicial act, correlation between obligatory nature and enforceability, implementation forms of judicial acts

Zagaynova S. K. (Yekaterinburg) The correlation between a mediation agreement and a settlement agreement: current issues of judicial practice

The article draws a distinction between the concepts of «mediation agreement» and «settlement agreement»; considers the procedural consequences of the end of a civil case after the conclusion of a mediation agreement.

Key words: commercial procedure, mediation, settlement agreement mediation agreement

ADMINISTRATIVE LAW AND PROCEDURE

Ivanov A. G. (Khabarovsk) Hunting supervision and control: limits of powers and problems of realization

The author considers the legislative powers of persons, who exercise supervision and control in the sphere of hunting and preservation of hunting resources, and focuses on the mechanism of realization of the rights, granted to them, and the territorial scope of these rights. Some problems of the use of certain legal rules, which regulate the implementation of functions assigned to state inspectors in the field of environmental protection and to production hunting inspectors, are revealed.

Key words: hunting, hunting weapon, fauna, hunting ground, inspector, environmental protection, supervision, control

LABOUR AND SOCIAL LAW

Golovina S. Yu.), Salikova N. M. (Yekaterinburg) On the legal content of the “minimum wage” category and its meaning

The article is devoted to the establishment of the minimum wages and minimum salaries. The authors analyze the concept of minimal wages and the role of judicial practice in defining its meaning; they also criticize the modern legislator’s approach to the conceptual system of the minimum wages institution. The authors try to find out whether the national definition of minimum wages in Russia complies with international labour standards. The concepts of «minimum wages» and «minimum salaries» are compared. The experience in establishing minimum salaries in different subjects of the Russian Federation is explored; and the conclusion about unreasonable differentiation of these salaries is made.

Key words: minimum wages, minimum salaries, regional premium rate, living wage, differentiation

Fedorova M. Yu. (St. Petersburg) Social security law in the social risks management mechanism

The regulative resource of social security law is analyzed in the article. Based on the modern approach to the social risk and its particular types, the author concludes that it is necessary to form a legal mechanism for social risks management. This mechanism should be created according to the particularities of the social risks structure, which includes not only a risk event and its negative consequences forming together a social risk case, but also factors of the social risk, which lead to its occurrence and determine the severity of its consequences. The author refers to statutory and secondary sources and concludes that the legal tools, which may and should be used for the effective protection against the social risk, are not limited to the social security law tools. The author outlines the social security law characteristics and comments academic discussions regarding the extension of its subject matter and its contractual elements, the change of its title, and the admission of it to the individual-public sphere of regulation. Social security law, with the specifics of its subject matter and the grounds for the regulated legal relations, is designed to reimburse the consequences of social risk cases from the public recourses. Thus, it is an important, but not the only part of the social risks management mechanism which is used to develop the social security legal regulation as well as the other means of protection against the social risks (including civil law mechanisms).

Key words: social risk, social risk management, legal mechanism, legal tools, social security, social protection

EXPERTISE

Mamurkov V. A. (Yekaterinburg) The criminal aspects of the forensic-biological and genetic examinations in the investigation of crimes

The author reveals the importance of the forensic-biological and genetic examinations for identification purposes during the crime investigation. He also studies the issues of determination of group affiliation and individual features of biological marks.

Key words: biological marks, genetic system, forensic identification

ECONOMICS AND LAW

Trunk-Fedorova M. P. (St. Petersburg / Yekaterinburg) On the current trends of the EU investment policy

The new competencies of the EU in the field of foreign direct investment under Art. 207 of the Treaty on the Functioning of the European Union are a highly debated topic within the EU. At the same time, the perception of the EU investment reform by third countries has not been studied thoroughly. The paper analyses third countries’ perspective on the new EU investment policy and assesses the chances of an eventual conclusion of an investment agreement with the EU from the perspective of compatibility of the EU approach and approaches of third countries to foreign investment policy. The analysis shows that there are parallel developments in the EU and third countries’ investment policy that reflect current global reform of international investment agreements. At the same time, the new concept of investment dispute settlement proposed by the European Union might cause (and already cause) difficulties in the EU negotiations with third countries, which makes the future of EU investment reform unclear.

Key words: EU law, international investment agreements, multilateral investment court, investment treaty reform, transparency

Kiskachi M. А. (St. Petersburg) The choice of the UNIDROIT Principles as a governing law in terms of national and international regulation

The author analyzes national conflict of laws rules in the EU member states, Switzerland, USA, Canada and the Russian Federation in order to make clear whether the UNIDROIT Principles of International Commercial Contracts (hereinafter – the UNIDROIT Principles) could be chosen as a governing law. The author limits herself to the analysis of the conflict of laws rules applied by state courts of the above-mentioned countries. She concludes that, despite the absence of a legislative prohibition, a reference in a contract to the UNIDROIT Principles or any other non-national source is not considered as a choice of governing law. This approach is based on the fact that most legal systems recognize the right to choose a «law», which is understood as a system of norms and principles that have effect in a particular state. As far as non-national legal instruments (including the UNIDROIT Principles) do not belong to any system of such norms and principles, their choice cannot be regarded as a choice of applicable «law».

Key words: UNIDROIT Principles, party autonomy, applicable law, «rules of law», choice of law, incorporation, Rome I Regulation, reform of the Russian Civil Code

PAGES OF HISTORY

Perevalov V. D. (Yekaterinburg) History and the present days of the Department of Theory of State and Law of the Ural State Law University

The article provides a historical overview of the formation and development of the educational and scientific discipline «Theory of state and law» and the Department of Theory of State and Law of the Ural State Law University, starting off with the foundation of a law faculty of the Irkutsk State University in 1918 until the present day. The factual base of the research consists of the archive documents both well-known and unknown for the wide audience.

Key words: history of law education, Sverdlovsk Law Institute, Ural State Law Academy, Ural State Law University, Department of Theory of State and Law

Bodrova E. E. (Yekaterinburg) Memoirs of participants of the Civil war in the Urals as sources of the Soviet state history (from the experience of the gathering and publication of memoirs in 1920s)

The article represents the first stage of the history of the gathering and publication of memoires by the Soviet regime supporters who participated in the Civil war in the Urals. There is a retrospective analysis and source study assessment of these materials. Based on the results of their comparison, the author concludes that the changing social environment and the emerging ideology seriously impacted the views and beliefs of memoirists.

Key words: fighting groups of national arms, memoires, Civil war, Сomission on the history of the Revolution and the communist party, class fight, Red Army, guerrilla groups

LEGAL HERITAGE

Ural scientific school of law

S. S. Alekseev on the Soviet theory of law (a brief introduction by S. V. Kodan)