Annotations № 5 (140) / 2021

PROBLEMS OF LEGAL SCIENCE AND EDUCATION

♦ The new nomenclature of scientific specialities – new horizons of jurisprudence? (an interview with I. Matskevich)

Kozhevina М. (Omsk) Thoughts about the subject specificity of scientific specialities and the formation of new legal sciences

The author reveals the features of the nomenclature of scientific legal specialities at different stages of the development of domestic legal science. She identifies and analyses the reasons for the adoption of a new classifier at the present stage. Interdisciplinarity is defined as the main condition for the development of science. In this regard, it is proposed to include in the passport of the scientific speciality 5.1.1 new scientific disciplines that generalize the theoretical and historical experience of domestic legal science (legal science studies and history of legal science), as well as auxiliary disciplines that expand the cognitive capabilities of science (legal source studies and legal historiography). It is pointed out that these areas of scientific research are poorly developed in domestic jurisprudence, and there are few generalizing works of a scientific, historiographic and source-study nature. The subject and tasks of each of the considered scientific disciplines are revealed.

Key words: legal science, scientific speciality, history of legal science, legal science studies, legal historiography, legal source studies

Ponkin I., Lapteva A. (Moscow) Theory and practice of reasoning in the structure of legal education

The authors describe the concept, nature and features of legal reasoning. They say that there are generally no disciplines devoted to the theory and practice of reasoning in the structure of educational programs for lawyers; however, legal practitioners must have the appropriate skills. Lawyers acquire the skills of legal reasoning first as part of their higher education, and then develop them during their professional activities. Legal reasoning can be considered as theoretically, logically and normatively based and correct formulation of conclusions about the legal content, relations, conditions, and consequences based on a clearly established set of legal or legally significant events in relation to rules of law and norms of extra-legal regulation, their elements and complexes. The authors present their own understanding of different formats of teaching methods and techniques of effective legal reasoning in the structure of lawyers’ professional education.

Key words: legal education, theory and practice of reasoning, legal reasoning, science, applied analytics

Babenko V., Rybakov O. (Moscow) Features of the development of source studies and historiography in the system of legal sciences

The authors deal with the problem of the development of ancillary legal disciplines and consider the place and role of historiography and legal source studies in legal science. It is pointed out that there is a need to generalize the accumulated experience of investigating source studies and historiography in jurisprudence. The authors think that the widespread use of the philosophical approach and the historical method will make it possible for legal source studies and historiography to be fully reflected in legal research. It is proposed to single out legal source studies and legal historiography as special academic disciplines at the master’s and postgraduate levels, as well as to define clearly their content in the passport of the speciality 5.1.1 of the new nomenclature of scientific specialities.

Key words: legal source studies, legal historiography, legal sciences, classification, philosophical approach, historical method

THEORY OF LAW AND STATE

Bogatyrev G. (Moscow) The exchange theory of E. Pashukanis: philosophical and theoretical foundations

E. Pashukanis is known primarily as a radical Marxist and an author of the exchange theory of law. However, his contribution to the development of the ideas of the sociological positivist school of law is not given proper attention in modern doctrine. In his theory, Pashukanis combined Marxist and «bourgeois» approaches to law. However, unlike his colleagues, he did not try to reconcile these approaches, but, on the contrary, pushed them against each other. Pashukanis resolved the resulting conflict in favour of a sociological and positivist approach to law. This conclusion can be made on the basis of his critique of some key legal concepts: a legal norm, a subject of law, and an offence. Trying to reduce the phenomenon of law to the process of economic exchange, Pashukanis drew a line between law and economics and implicitly affirmed the autonomy of law. This circumstance prevented the further development of the Marxist foundations of his theory. The paradoxes of Pashukanis’ exchange theory can become for modern lawyers a source of arguments in favour of the autonomy of law in relation to economics, as well as in favour of the primacy of the content of social relations over their form.

Key words: exchange theory of law, sociological positivism, Marxism, socialist law

Burmistrova S. (Chelyabinsk) Assessment of the resolution of conflicts of interest in regulatory legal acts and draft regulatory legal acts

The article considers which of the examinations or procedures can be used to assess the resolution of conflicts of interest in regulatory legal acts (draft regulatory legal acts). The author asserts that it is quite possible to predict the occurrence of conflicts of interest of participants in public relations before the legislative work is over. Since these are legitimate interests equally deserving realisation, the legislator resolves the future conflict and fixes the result in the norms of law. The theoretical foundations of resolving conflicts of interest in regulatory legal acts (drafts of such acts) are presented. The author indicates the methods that can be used to resolve and assess the resolution of conflicts of interest during the creation and subsequent amendment of regulatory legal acts. It is argued that the only basis for resolving conflicts of interest is often the moral principles of conscientiousness, reasonableness, and justice. The author’s understanding of these categories is given.

Key words: examination of regulatory legal acts (draft regulatory legal acts), assessment of regulatory impact, assessment of actual impact, conflicts of interest, methods of resolving and assessing the conflicts of interest

PUBLIC ISSUES AND POLITICAL SCIENCE

Antoshin V., Ilyaeva P., Faizrakhmanov R. (Yekaterinburg) Challenges of ensuring public safety in the Sverdlovsk region

The article examines the issues of ensuring public safety as one of the state policy directions aimed at achieving a state of security for the individual, society and the state; it also analyses the relevant legal framework. The authors substantiate the need for normative improvement of the conceptual apparatus of documents regulating the issues of ensuring public safety. In particular, they propose to define clearly such concepts as «public safety», «public peace», «state policy in the field of ensuring public safety». The main attention is paid to the legal framework and directions of state policy in the field of ensuring public safety at the level of the subject of the Russian Federation – the Sverdlovsk region. The results of the expert interview conducted by the authors show the shortcomings of ensuring public safety in the Sverdlovsk region. The experts identified the following problems: lack of specialists responsible for civil defence and protection of the population and territories in municipalities; inefficient interaction of the profile executive body of the Sverdlovsk region with remote municipalities; insufficient level of civil responsibility of the population.

Key words: state policy, national security, public safety, subjects responsible for ensuring public safety, threats to public safety

INTERNATIONAL LAW

Kadusheva O. (Moscow) The advisory opinion of the Court of the Eurasian Economic Union in the Leasing Case: new aspects of advisory jurisdiction

Taking as an example the advisory opinion of the Court of the Eurasian Economic Union in the Leasing Case, the author analysed different functional aspects of advisory jurisdiction of the Court of the EAEU. It is noted that relevant practice of the Court of the EAEU follows a pattern of some other international courts, mainly the International Court of Justice. Besides the solution of different organisational problems of the Union, the advisory jurisdiction of the Court of the EAEU could be sued to avoid current jurisdictional constrains of the Court as well as to settle different conflict situations. Advisory jurisdiction offers for this purpose some advantages comparing with dispute resolution jurisdiction of the Court.

Key words: Court of the EAEU, advisory opinions, international courts, legal order of the EAEU

CRIMINAL LAW AND PROCEDURE

Engel’ V. (Moscow) Contemporary definitions of extremism: a comparative analysis

The author answers whether the absence of a generally accepted international definition of the term «extremism» is an obstacle to cooperation between different countries in the fight against extremism. He analyses the legal features of the three wide-spread definitions of modern extremism and concludes that each of them is based on a threat to the basic values of the state. The absence of a single standard of extremism is explained by the fact that each country has its own specific values and standards of social structure. Each of the models of extremism implies the presence of different groups of extremists. At the same time, analysing the trends in the legislative practice of different countries, the author concludes that security interests have become priorities for voters in the face of the growing terrorist threat, and this has encouraged even those countries that traditionally belong to the camp of «old democracies», to adjust their views on traditional democratic values and to depart from them under certain circumstances. In the future, this may lead to a convergence of positions of different countries in the assessment of extremism.

Key words: extremism, terrorism, hatred, social group, democratic values, legal system, social security

Gustova E. (Moscow) Notes to criminal-law norms: problems of legal interpretation

The article deals with the interpretation of criminal-law norms by using such a legislative technique as notes-definitions. Science-based criteria for their classification are proposed. The author analyses the reasons for the existence of notes in the Criminal Code of the Russian Federation and the shortcomings of their textual fixation. It is stated that the absence of notes in some criminal-law norms negatively affects forensic practice. The author proves the need to use notes in modern Russian legislation and proposes recommendations for improving legislative techniques in terms of designing notes of the Special Part of the Criminal Code.

Key words: interpretation of criminal law, note, application of criminal law, legislative technique

Volchetskaya T., Osipova E., Avakyan M. (Kaliningrad) Extent of modern forms of violence among youth and measures to prevent them

The purpose of this study is to identify the main trends associated with the spread of modern forms of violence among young people (bullying and cyberbullying, school shooting, manifestations of the ideology of extremism and terrorism, etc.). The article describes the characteristics of the main modern forms of violence among young people and adolescents and demonstrates their relationship with the ideology of extremism and terrorism. The authors analyse the results of the survey with the participation of 2574 respondents who made up three target groups: pupils aged 14–18 and school teachers in the Kaliningrad region, as well as young people aged 18–35 who live in the Kaliningrad region. Information that is important both for the disclosure and investigation of violent crimes and for their forensic and criminological prevention is identified. The authors propose the main directions of prevention and counteraction to certain modern forms of violence among young people.

Key words: youth violence, countering extremism and terrorism, bullying, cyberbullying, violence prevention, crime situation

QUESTIONS OF INVESTIGATION AND OPERATIVE RESEARCH ACTIVITY

Grigoriev A. (Yekaterinburg) On the shortcomings of the legal regulation of using the results of operative-research activity and the materials of checking information about crimes in proving

The article is devoted to the problem of verifying the results of operative-research activity and the materials received by officials of preliminary investigation bodies at the stage of initiating criminal proceedings, which are used in proving a criminal case. The Criminal Procedure Code of the Russian Federation allows using information received in such ways as evidence, but it does not directly oblige the law enforcement officer to check it by investigation and, in fact, states that the documents containing this information must comply with the requirements of the Criminal Procedure Code. However, the results of operative-research activity and the materials of checking information about crimes cannot themselves meet these requirements. The need to verify the results of operative-research activity and the materials of checking information about crimes received at the stage of initiating criminal proceedings in accordance with the Criminal Procedure Code is deduced in science and law enforcement practice from articles 75, 89, and part 1.2 of article 144 of the Criminal Procedure Code. However, such a need is not established by law. To resolve this problem, it is necessary to amend the Criminal Procedure Code of the Russian Federation.

Key words: results of operative-research activity, materials of checking information about crimes, evidence, initiation of a criminal case, criminal procedure decision

CIVIL LAW AND PROCEDURE

Malbin D. (Moscow) Reclamation of a residential premise from a bona fide purchaser

The Federal Law No. 430-FZ of December 16, 2019 «On Amendments to Part One of the Civil Code of the Russian Federation» amended Article 302 of the Civil Code of the Russian Federation, according to which residential premises cannot be reclaimed from a bona fide purchaser at the claim of a public legal entity if three years have passed since the registration of the property right of a bona fide purchaser. The Federal Law No. 430-FZ of December 16, 2019 was developed and adopted due to the Resolution of the Constitutional Court of the Russian Federation No. 16-p of June 22, 2017. At the same time, this law failed to implement the legal position of the Constitutional Court of the Russian Federation. The innovation has some legal and technical inaccuracies, by virtue of which the new provisions can be qualified both as an addition to the institution of protection of a bona fide purchaser and as an addition to the rules on the acquisition of ownership rights by prescription. Besides that, the new institute is similar to the ancient Roman institute longi temporis praescriptio, since the possibility of reclaiming a thing by the owner is extinguished by the expiration of a three-year period. At the same time, it is incorrect to establish any period of possession of a thing for the acquisition by a bona fide purchaser of the ownership right to a residential premise. Restrictions on reclamation of residential premises from a bona fide purchaser are necessary as they ensure protection of the right of citizens to housing guaranteed by Article 40 of the Constitution of the Russian Federation.

Key words: bona fides, possession, ownership, residential premise, reclamation

ECONOMICS AND LAW

Baybekov R. (Moscow) Corporate acts of sports organisations and local regulations: a concept, characteristics, and correlation

The article is devoted to the sources of regulation of sports relations at the local level. It presents various views on the name and definition of the range of regulations approved by sports organisations. The indicated sources are referred to as «corporate acts of sports organizations». The author provides his own definition of corporate acts of sports organisations and proposes a list of their characteristics. These characteristics make it possible to establish the place of the investigated sources in the legal system, as well as their relationship with other sources. The author makes a comparison between corporate acts of sports organizations and local regulations and concludes that they cannot be equated to each other. Despite this, it is still possible to consider both sources as a part of corporate regulation.

Key words: corporate acts, local regulations, sources of labour law, sources of sports law, sports organisation

LEGAL HERITAGE

O. I. Chistyakov on the constitutional-legal and real nature of the RSFSR (a brief introduction by S. Kodan)

LIBRARY

Review of the book: Formation of a modern international legal concept for the exploration and use of outer space: a monograph / A. Ya. Kapustin, V. R. Avkhadeev, A. A. Golovina, etc.; ed. by A. Ya. Kapustin. – Moscow: The Institute of Legislation and Comparative Law under the Government of the Russian Federation : INFRA-M, 2021. – 264 p.