Annotations № 1 (142) / 2022

THEORY OF LAW AND STATE

Osintsev D. (Yekaterinburg) Legal regulation: a discrete or a system-activity approach?

The classification of legal regulation methods has been almost unchanged for several decades. There are two basic methods – permission and prohibition. We are talking only about the discrete side of legal influence – the regulation of individual actions. However, these methods of influence are hardly suitable for all levels of activity. Within the framework of a holistic legal regulation of the basic principles and priorities of the constitution of social structures and processes, it is necessary to supplement the list of methods of legal influence with restrictions and algorithms, conditions and requirements, as well as displacements of negative incidents and statements of value-oriented practices.

Key words: prohibitions and permissions, legal influence, system of law, values in law, legal algorithms

Golubtsov V. (Perm) Temporal conflict-of-law rules as legal means to overcome temporary contradictions between legal rules

The article is devoted to a special kind of specialized (subsidiary) rules of law, the function of which is to resolve temporary contradictions between main (substantive) legal rules. It is noted that the scientific theory of temporal conflict-of-law rules has not been formed and develops inconsistently due to, among other reasons, the absence of the law «On Normative Legal Acts in the Russian Federation» aimed at legalizing the general wordings of such rules. The author identifies a broad and a narrow interpretation of temporal conflict-of-law rules and proves that they are a kind of conflict-of-law rules aimed at resolving conflicts between legal norms that came into force at different times. A temporal conflict is considered as a contradiction between legal rules of different levels that simultaneously regulate the same relations and are in legal force at the time of such regulation. The author criticizes the existing legal and technical approaches to institutionalize temporal conflict-of-law rules, and proposes a general formula for their institutionalization.

Key words: conflict-of-law rules, temporal legal rules, temporal conflict-of-law rules, effect of legal norms over time, entry of legal rules into force, temporality of law

INTERNATIONAL LAW

Tyurina N., Shakirzyanova L. (Kazan) The structure of the legal model of the regional scientific space

The importance of scientific and technical cooperation is increasing in regional integration associations. However, none of them has proposed a normative description of a common scientific space as one of the components of an integration association. For the EAEU, the model of the scientific space is of particular interest, since the regulation of scientific and technical cooperation in this organization has been poorly developed. The article discusses some general parameters of building the legal model of the regional scientific space, which could be the basis for the scientific and technical cooperation in the EAEU. The authors identify the following components of the model structure: ideology, regulators, subjects, a common digital space, financing, and risks, – and offer a brief description of them.

Key words: model, model structure, regional organizations, scientific space

COMPARATIVE JURISPRUDENCE

Atabekova N., Bolotbekova E. (Bishkek, Kyrgyz Republic), Uraimova T. (Osh, Kyrgyz Republic) On the constitutional powers of the President of the Kyrgyz Republic in the social sphere

The article is devoted to the role of the head of state in the development and implementation of social policy. The material of the study is the norms of the Constitution of the Kyrgyz Republic in various editions, adopted from 1993 to the present, as well as certain provisions of the constitutions of the CIS countries. An analysis of the constitutional norms and provisions that establish the powers of the President of the Kyrgyz Republic in the social sphere is carried out. The authors come to the following conclusions: 1) the vertical of power in Kyrgyzstan is strengthening, and this, on the one hand, increases the responsibility of the president in governing the state and the social sphere as well, and on the other hand, contains the risk of authoritarianism; 2) it is reasonable to adopt a constitutional law regulating the organization of the activities of the President of the Kyrgyz Republic; 3) the political will of the head of state is necessary for reducing corruption, which hinders the development of the state and the social sphere as well.

Key words: constitution, social sphere, institution of presidency, president, social policy, corruption

CONSTITUTIONAL LAW AND PROCEDURE

Galstyan N. (Moscow) The constitutional model of power in the Russian Federation as a factor of limitation of the political competition

The article is devoted to the constitutional aspects of the influence of the current structure of power in Russia on the level of political competition. The author considers the system of checks and balances established in the Russian Constitution as a key mechanism of political competition. The place of the president, the parliament and the executive branch in the political market is analysed based on constitutional regulation, and the main institutional factors restraining the development of political competition in Russia are identified. Special attention is paid to the central place of the head of state in the political arena, which predetermines features of his relationship with the legislative and executive branches of power. The author raises a thesis that the current structure of power in Russia does not contribute to the development of real political competition and leads to an imbalance in the political market.

Key words: political competition, President of the Russian Federation, executive branch of power, separation of powers, parliamentarianism

CIVIL LAW AND PROCEDURE

Malbin D. (Moscow) Reclamation from a bona fide acquirer of property acquired at public auction

The current legislation establishes the conditions for the protection of a bona fide acquirer. Recently, the list of cases when a thing cannot be reclaimed from a bona fide acquirer has significantly expanded. One of the examples of protection of a bona fide acquirer is the impossibility of reclaiming property acquired at organized auction. This limitation of vindication is related to the need to ensure the stability of civil turnover and enhance credibility of organized auction. At the same time, the legislator takes into account the conditions of property sale at organized auction: such auctions are held in public and in accordance with the procedure established by law. However, the legislator does not take into account a situation when, at public auction, someone acquires a thing that does not belong to a debtor. A bona fide acquirer of a thing at public auction should be protected from the reclamation of the thing, since the alienation of the thing at public auction is carried out by a legally authorized entity with the assistance of the state represented by the Federal Bailiff Service of the Russian Federation, and bidders have no reason to doubt the legality of alienation of the thing at such auction. In fact, the acquisition of a thing at auction is a public conflict-free appropriation of a thing when the circumstances of such appropriation do not raise doubts about its legality. In any case, this issue should be resolved through the argumentation set out in the Resolution of the Constitutional Court of the Russian Federation No. 16-P of June 22, 2017 that says that the right of a public legal entity to reclaim a residential premise from a citizen should be restricted. Otherwise, it would mean that, on the one hand, the state organizes the enforcement of judicial acts and the sale of property at public auction, and on the other hand, it reclaims the property sold at this auction. Protection of a bona fide acquirer of a thing at public auction seems to be a necessary addition to the institution of protection of a bona fide acquirer.

Key words: good faith, ownership, property, public auction, property protection, reclaiming

ADMINISTRATIVE LAW AND PROCEDURE

Stepkin S. (Moscow) The limits of application of the Federal Law «On the Procedure for Considering Appeals of Citizens of the Russian Federation»

The implementation of the constitutional right of citizens to appeal should have the widest state guarantees, thereby, the legislation, adopted in the development of the constitutional norm on the right of citizens to appeal, should be as clear as possible, should not allow double interpretation and should not be substituted by judicial practice. The legal category «a function of public importance» proposed in 2012 by the Constitutional Court of the Russian Federation was not defined in the legislative act initiated by the Government of the Russian Federation and adopted in 2013. The absence of a definition of the concept «functions of public importance» in legislation and by-laws, as well as in judicial practice and scientific works impedes the determination of the limits for the application of the Federal Law «On the Procedure for Considering Appeals from Citizens of the Russian Federation» and thus makes it difficult to exercise the right of citizens to appeal. The author gives his own definition of the concept mentioned above and formulates some proposals for changing federal legislation.

Key words: appeals of citizens, function of public importance, limits of the law on appeals, right to appeal

Koshelev D., Varakosov D. (Yekaterinburg) Initiation of proceedings on administrative offenses against unidentified persons

The authors examine the current regulatory framework concerning the stage of initiation of proceedings on administrative offenses. They consider separate problems accompanying the initiation of proceedings on administrative offenses when the person involved in the illegal incident has not been identified. As a result, they propose some amendments to the Administrative Code of the Russian Federation that would ensure the rights of participants of proceedings on administrative offenses and help to bring the perpetrators to justice.

Key words: unidentified person, initiation of proceedings on administrative offenses, offense, administrative process

LABOUR AND SOCIAL LAW

Akhmetyanov D. (Moscow) Understanding of freedom of labour in Soviet and Russian labour law science

The article examines how the understanding of the category of «freedom of labour» has been changing from the formation of the Soviet state to the present day. The influence of state ideology on the understanding of freedom of labour in the Soviet period is noted. The opinions of Soviet scientists on certain aspects of this legal category are analysed and commented on. The article examines the manifestations of freedom of labour in Soviet legislation and its direct consolidation as a principle in modern domestic legislation. The author concludes that the category under consideration has a multidimensional nature, its content is determined by various factors and it is still relevant for labour law regulation.

Key words: freedom, freedom of labour, freedom of labour contract, Constitution of the Russian Federation, Labour Code of the Russian Federation

Filippov V. (Moscow) The use of judicial practice in the regulation of labour relations at the local level

The article deals with the issue of considering judicial practice as a source of labour law. The article substantiates that judicial practice can be classified as secondary sources of law, supplementing the law but not replacing it. Judicial practice is subject to the rule of law, interprets it and cannot go beyond its content. The author identifies the types of judicial practice in terms of their mandatory and recommendatory nature for the parties to labour relations, describes the structure of judicial practice and offers tools to strengthen the role of judicial practice in regulating labour relations at the local level. The author includes four elements in the structure of judicial practice: the practice of the Constitutional Court of the Russian Federation, the guiding practice, the case law, and the current practice of the Supreme Court of the Russian Federation. Except the current practice, all elements of this structure are mandatory for the parties to labour relations. According to the author, the implementation of certain provisions of judicial practice in local regulatory acts of organizations, taking into account the requirements of Article 8 of the Labour Code of the Russian Federation on the invalidity of provisions less beneficial for an employee, will enable the preventive resolution of labour disputes.

Key words: Constitutional Court, Supreme Court, Constitution of the Russian Federation, sources of law, legal positions

ECONOMICS AND LAW

Popondopoulo V. (Saint Petersburg) The sources and external forms of expression of entrepreneurial law

The article deals with the correlation of the concepts of a source of law and an external form of its expression. Separate external forms of expression of entrepreneurial law are analysed. The author concludes that it is necessary to distinguish between the source of law as a set of socio-economic factors that predetermine its content, and the external form of expression of law. The source of entrepreneurial law is a set of socio-economic factors that determine the legal regulation of entrepreneurial activity as the free activity of individuals. External forms of expression of entrepreneurial law are legislation, customs, legal practice, doctrine, generally recognized principles and norms of international law, and international treaties of the Russian Federation. The redundancy of legislation as a means of regulating entrepreneurial relations is also noted.

Key words: entrepreneurial law, sources of entrepreneurial law, external forms of expression of entrepreneurial law, entrepreneurial legislation, customs, legal practice, generally recognized principles and norms of international law, international treaties

Golubitchenko M., Ostrovskaya N. (Saratov) Features of the legal status of digital financial assets

Currently, the financial and legal doctrine needs to assess the legal status of digital financial assets. The authors state that the system of acts regulating the rules of circulation of digital financial assets in Russia is still being formed and requires close attention. It is summarized that international regulation of the issuance and circulation of digital assets could protect cryptocurrency investors. At the same time, it is important to take measures to increase the level of awareness of citizens about the risks associated with the use of cryptocurrencies.

Key words: digital financial assets, cryptocurrency, cryptocurrency investor, digital currency

Zaychikova O. (Saint Petersburg) Tax determination by the calculation method: problems of legal regulation

The right of tax authorities to apply the calculation method is established by the provisions of subparagraph 7 of paragraph 1 of article 31 of the Tax Code of the Russian Federation, in accordance with which the amount of tax payable by taxpayers to the budget system of the Russian Federation is determined. Despite the legislative consolidation, the scientific community has not developed a unified position on what is the object of determination by the calculation method: the amount of tax or the tax base. The development of the concept of the actual amount of tax liability in judicial practice has enriched the designated discussion. The article analyses the existing scientific approaches for determining the amount of tax by the calculation method, examines the legal positions of the higher courts and considers the examples of particular tax disputes. Based on this, the author distinguishes between such concepts as the amount of tax, the tax base and the actual amount of tax liability. As a result, the need to amend the current rules of the legislation of the Russian Federation on taxes and fees is justified.

Key words: calculation method, actual amount of tax liability, presumption, assessment method, calculation procedure, tax amount, tax base

PAGES OF HISTORY

Smirnov V. (Yekaterinburg) The enemy in the board of defenders (1937–1939)

May 26, 2022 marks the 100th anniversary of the Decree of the Central Executive Committee of the RSFSR on the establishment of boards of defenders. Initially, they united the «best legal forces», and since the mid-1930s they have moved to the backyard of the legal system after personnel purges and repressions. In the summer of 1937, the chairman of the Sverdlovsk Regional Board of Defenders N. F. Ostrovsky, his deputy V. P. Postnikov, chairman of the local trade union committee A. F. Toropova, members of the presidium of the Board V. A. Bryushkov, M. N. Vetlugin, A. N. Kuznetsov, chief accountant I. I. Zalevsky, defenders N. E. Ilyin and N. I. Korpachev were arrested. The last six fell under the order No. 0047 of the People’s Commissar of Internal Affairs of the USSR N. I. Yezhov from July 30, 1937 «On the operation to repress former kulaks, criminals and other anti-Soviet elements». The troika of the Sverdlovsk NKVD sentenced five of them to execution, and V. A. Bryushkov was sentenced to ten years in a camp. All were rehabilitated in the 1950s. Ostrovsky, Postnikov and Toropova, according to criminal case No. 3098, were held as members of a «subversive counter-revolutionary group associated with representatives of the right». The investigation materials were sent to a special meeting at the NKVD of the USSR, but they decided to take the case to court. It was considered on September 11–16, 1939 in Sverdlovsk on a visiting session of the Chelyabinsk Regional Court. All the defendants were acquitted after serving more than two years in prison. The pages of that case mirror the situation of the 1930s and the place of the defendants, assigned to it by the authorities, among other legal institutions. The current article is a follow-up of the article «Red Terror in the Urals (1923–1940)» published in the 1st issue of the journal for 2018.

Key words: enemies of the people, V. I. Stalin, troikas of the NKVD of the USSR, execution, rehabilitation, Sverdlovsk Regional Board of Defenders

LEGAL HERITAGE

P. I. Stuchka on the national component in the Soviet constitution (a brief introduction by S. Kodan)