Annotations № 3 / 2019
INTERNATIONAL LAW
Smbatyan A. (Moscow) The normative value of international courts’ legal reasoning: the factor of stability or the «usurpation» of the sovereign’s authority?
The practice of international disputes resolution demonstrates that references to previous decisions are one of the key characteristics of international adjudication. Instances of unmotivated deviation from earlier interpretations are rare. However, even the most authoritative court decisions do not create obligations for states and cannot be qualified as independent grounds for any requirements and legal remedies. In its statement at the meeting of the DSB made on December 18, 2018, the United States questioned the precedential value of the Appellate Body’s and panels’ reports since the increase in the normative status of such reports, according to the United States, is a result of the «usurpation» of inherent rights of the WTO Members to interpret the WTO agreements.
Key words: international law, international court, decision, precedent, citation, legal position, interpretation, International Court of Justice, investment arbitration, ECHR, WTO, Dispute Settlement Body
Abdullin A., Sitdikova R., Tyurina N. (Kazan) Legal foundation and features of international regional cooperation in the field of scientific research
The article investigates the legal foundation for international scientific cooperation through a number of regional organizations. The authors single out four stages of the evolution of EU law that reveals the graduate formation of scientific and technological cooperation as a special coordinative competence of the European Communities and the European Union. Following the study of EU treaties, they identify the tasks of the EU to support and develop scientific research as well as the efforts of EU bodies to coordinate interstate cooperation in the field of scientific research. The authors analyze CIS agreements on scientific and technical cooperation and emphasize their high potential; the states’ consistent policy on the creation of a common scientific and technological space at the contractual and institutional level is mentioned. The importance of innovative cooperation, including the use of digital forms, is noted. Taking into account the provisions of the Okinawa Charter of the Global Information Society of 2000 and the Declaration of Principles «Building the Information Society: a global challenge in the new Millennium» of 2003 as well as the program documents of the Russian Federation, the authors mention some directions for the development of interstate cooperation of Russia within the CIS and the EAEU.
Key words: international regional cooperation, scientific and technical cooperation, regional integration, European Union, Eurasian Economic Union, Commonwealth of Independent States, innovative cooperation, digital space
PUBLIC ISSUES AND POLITICAL SCIENCE
Smirnov V. (Yekaterinburg) On the Conception of the regulation of professional legal assistance market
The article reviews in detail the Conception of the regulation of professional legal assistance market, which is prepared by the Ministry of Justice of Russia and was approved in 2018, but is still not adopted by the Government.
Key words: Conception of the regulation of professional legal assistance market, advocacy, qualified legal assistance, private lawyers
Mal’tsev I. (Novosibirsk) Syntax and semantics of legal symbols
The article studies the issues concerning the rules of legal symbols composition and interpretation. The author compares certain state and departmental coats of arms, on the example of which conflicts between law and supranational heraldic doctrines are revealed. The author notes that the Russian double-headed eagle depicted without a heraldic shield is not a coat of arms, but its main charge, the status and application of which can be differentiated from the status and application of the coat of arms itself. The article demonstrates the potential danger of incorrect interpretation (both from the point of view of syntax and semantics) of the double-headed eagle as a heraldic supporter. The author dwells on duality and stable legal relations between a verbal and a visual form of the coats of arms embodiment. He also suggests some ways to interpret the legal symbols, which would help to identify the problems of their understanding in legal science.
Key words: legal symbols, coat of arms, double-headed eagle, heraldic shield, rules of heraldry, interpretation
Radosteva Yu. (Yekaterinburg) Protection of genomic information in virtual space
The information has long acquired the status of a major resource for the development of modern society, not less significant than mineral, financial and other resources. However, unlike other resources, the potential of information inevitably tends to increase, also due to gaining new knowledge. The latter include the investigation of genomic information, achievements of which are not welcomed by the society because of the scale of possible threats up to the creation of a biological genetic weapon. Taking into account the specific nature of such information, the legislator should distinguish it from biometric personal data and introduce an intelligible legal mechanism of dealing with it.
Key words: genomic information, personal information, virtual space, criminal threats
COMPARATIVE JURISPRUDENCE
Ramankulov K. (Bishkek, Kyrgyz Republic) On the adoption of the first Labour Code of the Kyrgyz Republic in 1997
The article deals with the development of the concept of labour legislation of the Kyrgyz Republic and the preparation of the first Labour Code of the Kyrgyz Republic of 1997 in the transition to a market economy in the post-Soviet period. The article first examines the European concept of the development of labour legislation of the Kyrgyz Republic, which was reflected in the draft Labour Code of the Kyrgyz Republic of 1995. The article substantiates that the main components of the European draft Labour Code had an impact on the formation of the final consolidated Labour Code of the Kyrgyz Republic. Among these components are certain provisions of the conceptual justification of the European project; certain elements of its structural organization; the rules on the representation of employees’ interests in the enterprise. The prognostic component of the European draft Labour Code is noted as well. The article also considers succession issues and some innovations of a new Labour Code of the Kyrgyz Republic adopted in 2004.
Key words: Labour Code of the Kyrgyz Republic, concept of labour legislation, consolidation, the European draft Labour Code
CONSTITUTIONAL LAW AND PROCEDURE
Zametina T., Kombarova E. (Saratov) Constitutional and legal problems of resolution of interethnic conflicts in Russia
The article discusses the constitutional basis for resolving interethnic conflicts in the Russian Federation. The matters of legislative regulation of this issue are analyzed; the causes and conditions for the emergence of interethnic conflicts as well as constitutional problems of their resolution are identified. The authors substantiate the necessity of adopting a federal law «On the principles and procedure for resolving interethnic conflicts in the Russian Federation», which would establish the mechanism for resolving interethnic conflicts.
Key words: Constitution of Russia, interethnic conflicts, national and cultural rights, ethnic community
Leonenko N. (Novosibirsk) The phenomenon of a «living constitution» and the status of the head of state
The purpose of the article is to study the nature of such a form of constitutional legislation development as the transformation of the Constitution. The author examines the work of the Constitutional Court of Russia on the interpretation of the RF Constitution on the example of its decisions defining the limits of powers of the head of state and mentions the ratio of protective and transformative functions in its activities. She studies the reflection of the «living Constitution» doctrine in the practice of the Constitutional Court of the Russian Federation, establishes the causes and limits of the transformation of the Russian Constitution and, on this basis, concludes that such a transformation is an objective and inevitable process resulting in a significant change in the meaning of its individual provisions. However, the function of interpreting constitutional provisions is used by the Constitutional Court of the Russian Federation to a much greater extent than is determined by its appointment. The author concludes that it is necessary to regulate the practice of constitutional justice, to develop the criteria for limiting judicial discretion as well as to systematize and constitutionalize the hidden (implied) powers of the President of the Russian Federation.
Key words: head of state, «living Constitution», constitutionalization, constitutional court, legal position, transformation of the Constitution, hidden (implied) powers
Zaikov D. (Moscow) Inadmissible procedural appeals to the court: the problems of legal regulation and application
The right to appeal to state and local authorities and the right to judicial protection are interdependent constitutional rights. At the same time, when a person uses obscene or offensive expressions, threats to life, health and property in his appeal, the latter should be left unanswered on the merits, which is due to the need to protect the honour and dignity of the individual and to secure public relations in the consideration of citizens’ appeals. However, there is no similar legal regulation of procedural appeals sent to the court and containing offensive expressions; and this creates a legal vacuum in the regulation of mentioned relations and leads to heterogeneous and multidirectional practice in terms of judicial response to such appeals. The article analyzes this issue on the basis of the judicial practice of courts of general jurisdiction, and suggests some ways to solve it.
Key words: right to appeal, appeal, procedural relations, court, abuse, offensive expressions, obscene expressions, threats
CRIMINAL LAW AND PROCEDURE
Reshetnikov A. (Moscow) Criminal-law assessment of appeals for committing a crime
The article indicates the problem of different understanding and qualification of the appeals for committing a crime that are uniform in their social and legal nature. It is noted that the appeals for committing a crime could be considered as an independent crime, as complicity in a crime and as a form of an incomplete crime. The author substantiates the possibility of multiple interpretations of appeals, which could be defined as intentional perpetrator’s actions that allow legal coexistence of various forms of complicity in a crime. It is noted that this situation, which arose from non-systemic rule-making in criminal law, cannot be considered satisfactory and needs to be resolved. The criteria for the criminal-law assessment of appeals as a crime and appeals as an incitement are presented. In this regard, the author proposes a solution to such problems of the qualification of appeals, as the delimitation of appeals as a crime and appeals as an incitement; the identification of the end of appeals and the specifics of the criminal-law assessment of incomplete appeals; the competition of criminal-law norms on responsibility for appeals as a crime; the qualification of appeals for appeals for committing a crime.
Key words: appeals, complicity in a crime, incitement to a crime, incomplete crime, competition of criminal-law norms
Skoblik K. (Krasnoyarsk) Sufficiency of evidence as a result of the interaction between laws of formal and dialectical logic
Before making a stipulated cognitive decision (for example, on the compiling of a conclusion of guilt or a bill of indictment) it is necessary to reconstruct what actually took place in an alleged criminal event. What are the regularities which lead to an ascertainment of circumstances under Article 73 of the Russian Criminal Procedure Code? How does the concept of the sufficiency of evidence represent these regularities? Answering these questions, the author shows a mechanism of sufficiency formation through a connection between the law of sufficient reason (formal logic) and the law of the transition of quantity into quality (dialectical logic). The author asserts that, due to the law of sufficient reason, the sufficiency of evidence fixes a moment of appearance of a necessary reason, and, with the help of the law of the transition of quantity into quality, it clarifies that the reason is sufficient when there are as many quantitative changes (information) as necessary for their transition, i. e. getting the output. According to these judgements, the author points out that subjects of proof should observe the rules of formal and dialectical logic, which are based on above-mentioned laws, and, referring to certain criminal cases, he demonstrates the mistakes arising from the violation of these rules.
Key words: public model of the Russian criminal procedure, cognitive decision, unity of formal and dialectical logic, law of sufficient reason, law of the transition of quantity into quality, sufficiency of evidence
CIVIL LAW AND PROCEDURE
Kratenko M. (Krasnoyarsk) Insurance payment in kind in property and personal insurance: on the nature of the insurer’s obligation and the extent of his responsibility
The article investigates issues related to the implementation of the insurance payment in kind by the insurer – by replacing or repairing the insured property, providing medical services to the insured person, etc. The legislation on insurance does not determine the nature of legal relations between the insuree (insured person), the insurer and the contractor (performer) in this form of insurance payment, does not specify the extent of insurer’s responsibility for the shortcomings of the work performed and services provided. After making changes to Art. 12 of the Federal law «On mandatory insurance of civil responsibility of vehicle owners» the responsibility for violation of the deadline for returning the car to the victim (insured person) and other obligations for the repair of the vehicle is directly assigned to the insurer. The author wants to know whether this rule could be a model for determining the insurer’s responsibility in voluntary types of insurance, for example, under a Casco contract, a voluntary medical insurance contract, and a contract of insurance for medical expenses of persons travelling abroad. The author examines the legal consequences of the replacement of the cash insurance payment with the compensation in kind (repair of property), and clarifies the extent of the insurer’s responsibility to the insured person (victim) in this form of compensation. The author puts forth some proposals for the improvement of the legislation on voluntary property insurance and responsibility as well as for the adjustment of current court practice.
Key words: insurer’s obligation to pay, insurance payment in kind, Casco insurance, mandatory insurance of civil responsibility of vehicle owners, voluntary medical insurance, responsibility for the shortcomings of the work
Semyakin M. (Yekaterinburg) The construction of the multiplicity of pledge holders in the light of the reform of Russian civil legislation
Given the current civil legislation and civil code novels, the problems of the multiplicity of pledge holders are considered. It is proved that the right of pledge has a binding nature. The author examines such a construction of multiplicity of persons in pledge relations as a co-pledge, reveals its constituent features and gives examples of the application of this construction for different obligatory relations. It is proposed to make adjustments to certain provisions of the Civil Code, in particular, regarding the distribution of monetary amounts received from the sale of the pledged item.
Key words: pledge, multiplicity of persons, pledge holders, equity lender, recovery
Marchenko A. (Tambov) Abuse of a procedural right in civil proceedings: qualification issues
The author ascertains to what extent the issue of qualifying procedural acts as abuse of a procedural right in civil proceedings is developed in Russian legal doctrine. The positive and negative aspects of the dominant concepts of abuse of a procedural right in civil proceedings are identified. The prospects for applying the principle of general tort to qualify actions as an abuse of a procedural right in civil proceedings are considered. It is established that, in Russian legal science, the abuse of a procedural right is considered as a deliberate procedural offence. The author examines whether the abuse of a procedural right actually suggests that the person, who abused the right, has no intention to achieve the goals of civil proceedings.
Key words: abuse of procedural right, legal doctrine, general tort, deliberate offence, intentions, goals of civil proceedings
ECONOMICS AND LAW
Mikryukov V. (Moscow) The problem of establishing the similarity of goods in the practice of loss calculation in case of termination of the supply contract
The author reveals a lack of uniformity in the application of Art. 524 of the Civil Code of the Russian Federation concerning the recovery of losses caused by the violation of the supply contract terminated by the buyer, and demonstrates different courts’ approaches to assessing the similarity of goods purchased by the buyer in the replacement transaction. The author critically assesses the replacement of the concept «similar goods» with the concept «comparable goods» in Art. 393.1 of the Civil Code of the Russian Federation, which generalized the rules of Art. 524 of the Code. He puts forward some suggestions to improve the wording of both articles.
Key words: analogy method, similarity, similar goods, equitable goods, abstract and specific losses, rationality, good faith
Myshyakov S. (Kotlas) Specifics of recovering the cost of additional work under a construction contract
The article considers the relations of the parties to a construction contract regarding the need to perform additional work as well as the legal framework and current arbitration practice concerning such disputes. The author analyzes the ways of aligning additional works, which include: the conclusion of an additional agreement; the signing of other documents; correspondence of the parties; working meetings with the minutes; the customer’s behaviour. According to the author, the contractor, in order to meet the court claim on the dispute about the recovery of the cost of additional works should prove the following circumstances: the assignment of works to additional ones; the customer’s agreement on the content and scope of the works; the consumer value of the works; the focus of the works on protecting public interests; the need for immediate action in the customer’s interests.
Key words: construction contract, additional construction work, court practice
LEGAL ASPECTS OF ECOLOGY
Ignat’eva I. (Moscow) Land litigations concerning the placement of electric power facilities under a public servitude: features, problems, trends
The article examines the legal norms regulating the procedure for establishing a public servitude on land plots in order to locate electric power facilities, in terms of the possible occurrence of land litigations. Part of the litigations is derived from the contradiction between the interests of the holders of land plots and the holders of public servitude. Controversial situations may be caused by ambiguous wording and the weak connection between legal norms, which were the result of the modernization of legislation regarding the establishment of public servitude.
Key words: public servitude, land plot, electric power facilities, linear objects, power lines
PAGES OF HISTORY
Zhabreev M. (Yekaterinburg) The basis of the formation of the conceptual apparatus and terminology for determining the participants of legal relations in Ancient Rome
The author examines the emergence of the conceptual apparatus and terminology for determining the persons evolved in relations regulated by the Ancient Rome law. A direct correlation between the individual will of a person and his possession of subjective rights is revealed. The author indicates various statuses of the legal capacity of individuals as participants of the private-law relations in Ancient Rome. He asserts that, in the private law of Ancient Rome, there were no other subjects of law except individuals.
Key words: individual, persona, person, status, capacity, sacred law, secular law, public law, private law
LEGAL HERITAGE
E. A. Skripilyov on the source study of the history of Russian state and law (the material is presented by S. Kodan)
LIBRARY
Review of the book: Bekyashev K. A. International law: a textbook. – Moscow: Prospect, 2019. – 1048 p.
CHRONICLE
International round table «Migration, social policy, and human rights in the EU and the EAEU: the impact of the Universal Declaration of Human Rights»