Annotations № 6 (135) / 2020
PUBLIC ISSUES AND POLITICAL SCIENCE
Chebotarev G. (Tyumen) Constitutional and legal mechanisms for forming a unified system of public power in the Russian Federation
The constitutional reform, which has begun after the amendments to the Russian Constitution, articulated the objective to form and strengthen a unified system of public power in order to face challenges of socio-economic development in Russia with a focus on human rights and interests. The aim of closer interaction between public authorities and local self-government bodies can be achieved by improving the existing legal mechanisms of cooperation and by consolidating new forms of their interaction in the legislation. One form of such cooperation is the joint jurisdiction of public authorities and local self-government bodies. The unity of public authority is manifested not only by the expansion of interaction between state and municipal authorities but also by the involvement of civil society in the development and implementation of public policy aimed at improving the quality of life. The article examines the forms of participation of civil society institutions in the exercise of public power and local self-government. The author underlines the integrating role of public chambers in the organization of a beneficial partnership between civil society and the state.
Key words: amendments to the Constitution of the Russian Federation, system of public power, social power, civil society institutions, public chambers
Skuratov Yu. (Moscow) Eurasian constitutionalism: a definition and content
The article is devoted to the study of the constitutional and legal component of the heritage of the classical Eurasian scientific school. A systematic generalization of views, reflections, assessments by representatives of classical Eurasianism on the role and significance of the constitution in a state governed by the rule of law gave grounds for the conclusion about the formation of Eurasian constitutionalism as an integral, original political and legal doctrine. Eurasian constitutionalism undoubtedly borrowed the ideas of other types of constitutional state (Western democratic and Soviet), but on the whole became a new, original system of views. Thus, the author talks about the third direction of the historical path of Russia (non-capitalist and non-socialist). Eurasian constitutionalism is a historically self-valuable form of a constitutional doctrine, an ideology and a political movement based on the original understanding of the Eurasian world as an independent civilization, the ideal organizational and legal embodiment of which is the state of truth based on the principles of ideocracy.
Key words: Eurasian constitutionalism, constitutional state, de facto constitution, guarantee state, Eurasianism, ideocracy, people’s sovereignty, democracy
Lisachenko A. (Yekaterinburg) Legal ensuring of the results of genetic technologies as an element of state policy: a current state and prospects
The article examines and evaluates the current level of legal regulation in the field of biological security in general and the security of the results of genetic and genomic technologies in particular. There is a serious change in the vector of biosecurity state policy in 2019. The newly adopted Federal Law «On Biological Security» is analysed in comparison with the original version of the draft law. The author mentions that the dynamics of the formation of the necessary organizational and legal means lags behind the pace dictated by time and provided for by fundamentals of biosecurity state policy and national development programs, in the field of genetic and genomic technologies as well. It is proposed to develop and implement a system of standards in the field of biological security for all levels – from federal to municipal one – and to create a single coordination centre in this area. At a higher level, most of the problems can be prevented or eliminated through the use of predictive modelling in legal regulation.
Key words: biosecurity, genetics, genomics, state policy
INTERNATIONAL LAW
Lazutin L. (Yekaterinburg) Collisions of international and domestic legal norms in the Russian Federation
The article examines some of the problems of correlation between the norms of international and national law. There is a brief overview of the Soviet and Russian doctrine concerning the issue of the conflict of rules contained in international treaties and national legislation. Taking into account the assessments of the provisions of Part 4 of Art. 15 of the Constitution of the Russian Federation, the author critically evaluates the changes made to the Russian Constitution in 2020, as well as the explanations given by the Constitutional Court of the Russian Federation in the conclusion to the Law on amendments to the Constitution of the Russian Federation. It is proposed to develop an official interpretation of Part 4 of Art. 15 of the Constitution, which would normalize the practice of applying the rules about the priority of the norms of international treaties.
Key words: international legal norms, domestic norms, Constitution of the Russian Federation, direct application
Tarakanova Ya. (Moscow) Scientific justification and risk assessment requirements for the application of sanitary and phytosanitary measures in WTO law
The features and interrelation of such requirements for the application by the WTO member states of sanitary and phytosanitary measures, as a sufficient scientific justification and a risk assessment, are revealed. It is established that, in order to fulfil the requirements of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures, a scientific justification presupposes taking into account the opinion of the majority of researchers or, in rare cases, the debatable opinion of certain scientists who refer to credible sources; the sufficiency of a scientific justification is assessed each time depending on the specific circumstances and the existing threat. It is concluded that, firstly, the states are obliged to base sanitary and phytosanitary measures on a risk assessment, but they aren’t obliged to conduct independently such an assessment, and secondly, when assessing risk, the states should take into account risk assessment techniques developed by the relevant international organizations, but they aren’t obliged to use such techniques or fully comply with them.
Key words: scientific justification, risk assessment, risk assessment techniques, WTO Agreement on the Application of Sanitary and Phytosanitary Measures, provisional sanitary and phytosanitary measures
CRIMINAL LAW AND PROCEDURE
Lavrinenko A. (Kaliningrad) Features of a victim of iatrogenic crimes committed against minors
Iatrogenic crimes are unintentional deeds against life and health committed by medical personnel in the exercise of their professional duties. Iatrogenic crimes against minors may be grouped within the framework of the forensic classification of crimes. The author examines such an element of the forensic characteristics of iatrogenic crimes committed against minors as a victim of a crime. The correlation of the concepts of «victim of a crime» and «injured person» is analysed. It is noted that the relevant terms might be considered synonymous in the forensic aspect. A range of direct and indirect victims of iatrogenic crimes against minors is outlined. It is concluded that the number of victims of such crimes should include not only the minor affected by the actions of the medical worker (a direct victim), but also his close relatives (an indirect victim). The latter have certain attributes of the victim of iatrogenic crimes, which are personal ones related to the strong emotional shock experienced by them and legal ones related to their role in the criminal procedure.
Key words: iatrogenic crime, minor, forensic characteristics of a crime, victim of a crime, status of a victim, injured person
Grigor’ev A. (Yekaterinburg) On legal consequences of the failure to explain to the suspect or the accused their right to conclude a pre-trial cooperation agreement
The author draws attention to the lack of a legal rule governing the pretrial investigation officials’ duty to explain to the suspect and the accused their right to conclude a pre-trial cooperation agreement. If the person who has entered into such an agreement fulfils its conditions, this significantly affects the appointment of punishment. The failure to explain the right to conclude a pre-trial cooperation agreement is a significant violation of the criminal procedure law and substantially infringes on the rights of the defence. To fill the gap in the legal regulation of the institution of a pre-trial agreement on cooperation, the author proposes some amendments to the Criminal Procedure Code of the Russian Federation and to decisions of the Plenum of the Supreme Court of the Russian Federation.
Key words: pre-trial agreement on cooperation, preliminary investigation, violation of the criminal procedure law, suspected, accused
QUESTIONS OF INVESTIGATION AND OPERATIVE-RESEARCH ACTIVITY
Khlus A. (Minsk, Belarus) On the elements of the material structure of extortion
Given the emergence of new ways of committing extortion, the author comes to the conclusion that it is necessary to improve the private forensic methods of disclosing and investigating this crime. Although he agrees with the majority opinion about the importance of the forensic characteristics of crimes for scientific and practical activities, he points out the difference in the forensic scientists’ opinions about the number of its constituent elements when considering extortion, as well as the insufficient description of these elements in the scientific and educational literature. It is proposed to use the elements of the material structure of extortion as a basis for developing the private methods of its investigation. Such elements include an actor, an object and a subject of a crime, as well as a means of committing it. The author pays particular attention to the reflective properties of each element of the material structure of extortion, which create a trace picture of a crime.
Key words: forensics, extortion, investigation technique, forensic characteristics of crimes, material structure of crimes
Mamurkov V. (Yekaterinburg) Typical mistakes when conducting forensic DNA identification
The article discusses typical mistakes made in the investigation of crimes and associated with DNA analysis: mistakes due to improper inspection of the crime scene in order to detect biological material; mistakes caused by violation of the rules for the seizure, packaging, storage and transportation of biological material, mistakes in forensic genetic examinations.
Key words: traces of biological origin, forensic DNA identification, typical mistake, inspection of the crime scene, forensic genetic research
CIVIL LAW AND PROCEDURE
Gongalo B. (Yekaterinburg) Russian science of civil law: a historical, subject and academic aspects
The article describes the main stages in the development of domestic civil law science. The author shows how the approaches to the subject and methods of civil law science had been changing in different periods of Russian civil law history. The article briefly presents the Russian schools of civil law.
Key words: civil law science, subject of civil law science, method of civil law science, system of civil law science, civil law schools
Vasilevskaya L. (Moscow) Digitalization of civil turnover: problems and trends
Two main trends in the digitalization of civil turnover are considered: the transition of subjects to electronic interaction and the inclusion of new digital objects in the property turnover. The features of the identified trends and the problems of regulating new relations in the information system are revealed. The article examines the concept of a smart contract, its legal nature and the problems of an automated fulfilment of obligations under Art. 309 of the Civil Code of the Russian Federation. The author argues that the questions about whether a transaction in the information system is an agreement or not, a smart contract is a contract or a fulfilment of an obligation or a way to secure it, do not have legal significance until the actual relationship is formalized in the information system on the basis of legal norms. The application of classical institutions and sub-institutions of civil law to the electronic interaction of the subjects of the information system should be recognized as erroneous since these institutions were developed by the legislator to regulate relations in an objective, physical reality. The author concludes that it is necessary to develop at the legislative level a special civil-law regime of digital rights that is different from the regime of alienated things.
Key words: digital rights, smart contract, deal, agreement, electronic form of deal, blockchain
Kozlova N., Filippova S. (Moscow) A quality criterion for identifying a major transaction performed by a business entity
The article analyses a quality criterion for identifying a major transaction, which can be determined by comparing the transaction with the ordinary economic activities of a business entity. The authors distinguish and describe three groups of circumstances, under which the transaction can be recognized as a major one according to the quality criterion: 1) the transaction leads to the termination of a business entity; 2) the transaction leads to a change in the type of business activity; 3) the transaction leads to a significant change in business scale. The authors also study factual circumstances that could confirm the presence of the quality criterion of a major transaction made by companies managing securities and shares in the authorized capital of business entities.
Key words: major transaction, quality criterion of a major transaction, business entity, management of securities and shares of business entities
Abushenko D. (Yekaterinburg) Issues of retroactivity of set-off in relation to the stage of execution of a judicial act
The article is devoted to some matters of the application of civil and procedural laws to an offset at the stage of execution of a judicial act. The author considers issues related to the so-called retroactivity of an offset in the context of the consequences of termination of obligations established by a judgment. He also touches upon the use of certain procedural mechanisms that would synchronize a civil offset with an enforcement procedure. Key words: offset, retroactivity of an offset, valid judgment, revision of a judicial act due to new facts, mediation agreement, enforcement proceedings
LABOUR AND SOCIAL LAW
Pryazhennikov M. (Vladivostok) Project employment in international labour standards and labour legislation of the EAEU countries
The international community’s attitude towards project employment as a type of precarious employment is determined according to the main ILO documents. The author sets out a definition of the project enshrined in the national standards of the EAEU countries. He analyses the norms of labour legislation of Russia, Kazakhstan, Belarus, Kyrgyzstan and Armenia and raises a question of whether or not the existing labour-law means (a fixedterm employment contract, an employee’s transfer and changes in working conditions, combining professions, a part-time and temporary work) are applicable to project employment (work on projects). The author proposes a way of «legalizing» project employment in the labour legislation of each of the EAEU countries and mentions certain aspects of project employment that require legal regulation.
Key words: project employment, employment contract, labour law, Eurasian Economic Union, International Labour Organization
ECONOMICS AND LAW
Vinnitskiy A., Kharinov I. (Yekaterinburg) Parameterization of construction: regulation upgrading and problems of eliminating redundant restrictions
The research subject is the provisions of the current urban planning and related legislation, which establish the limiting parameters of the permitted construction (reconstruction) of capital construction projects. The authors consider the construction parameterization system as a whole. They identify the potential for mitigating (cancelling) certain parameters of the permitted construction and analyse the ratio of the limiting parameters of the permitted construction of the municipal level with the federal requirements. A methodology for assessing the redundancy of the limiting parameters of the permitted construction is proposed. The article summarizes and analyses the relevant litigation and arbitration practice; as well as studies the regional experience in minimizing administrative barriers. A number of corruption-generating factors in the field of urban planning are mentioned.
Key words: urban planning law, limiting parameters of the permitted construction (reconstruction), coefficient of construction use of the territory (the land plot), building density, urban planning regulations, territory planning project, regulatory impact assessment
LEGAL HERITAGE
B. N. Chicherin on the place and role of history in the study of political thought (a brief introduction by S. Kodan)
PAGES OF HISTORY
Volgin E. (Moscow) The Russian law «On Political Parties» of 1995 and the problems of legal regulation of the activities of political associations in the 1990s
The article discusses the Russian law «On Political Parties» of 1995, which had been never adopted. The author considers this law as an integral document, which reflects specific approaches to understanding a political party in the 1990s. He concludes that this document was highly eclectic and contained several gaps, inaccuracies and omissions. All these shortcomings could turn into serious legal collisions if the law were adopted. The author thinks that the legal drafters initially lacked a clear legal concept and often acted according to the current political environment. The law did not endow the party with special rights as the only collective participant in the political process and did not provide for the simultaneous depoliticization of other public associations. Although the author notes the numerous shortcomings of the law, he is reluctant to criticize the legal drafters’ approach. In fact, it was most consistent with the 1993 Constitution, which guarantees political pluralism that means not only ideological and political pluralism but also the variety of organisational and legal arrangements for the citizens’ consolidation.
Key words: political parties, public associations, State Duma, Federation Council
MUSEUM OF SLI – USLA – USLU HISTORY
Zipunnikova N., Kalinina A. (Yekaterinburg) Letters of congratulations as a source of knowledge about the history of legal education and science (on the example of the Ural State Law University)
The article attempts to consider a study of a non-traditional type of sources for lawyers – congratulations addressed to the university – as an independent problem (on the example of the Ural State Law University). A number of possibilities for studying such documents and texts are shown: the source reading, the cognition in the context of festive culture and the phenomenon of jubilee-mania, the analysis of the role of ideologemes, ideological formulas and clichés in Soviet legal education. The authors focus on the letters of congratulations addressed to the Ural State Law University from the 1970s to the present day, which are stored in the museum of SLI – USLA – USLU history. Their understanding allows us to «dissect» the levels of official propaganda, to characterize the recognition of the achievements of the university and its role in the educational and scientific space, to assess its impact on the professional legal environment, as well as to identify its partners. The similarities and differences between Soviet and modern open letters of congratulations are determined. A significant informative potential of these sources of knowledge about the history of legal education and science is underlined.
Key words: letter of congratulations, history of legal education and science, Sverdlovsk Law Institute, Ural State Law University, anniversary, Soviet lawyer, museum object