Annotations № 5 (152) / 2023
INTERNATIONAL LAW
Tolstykh V. (Moscow) Buddhism and international law (concluded)
The interest in international legal aspects of Buddhism is relatively recent. At the beginning of the 21st century, this topic has acquired the character of an independent scientific direction: a circle of authors, who are exploring the field, has been formed, polemics on certain issues have emerged, publications have become regular. The emerging interest in Buddhist law is, in fact, an attempt to discover those ideas that would help overcome the crisis of modern international law. The author systematizes the statements on international relations contained in Buddhist sources and correlates them with the modern theory of international law. The texts that are the subject of analysis can be categorised into several groups. The first group includes suttas, i. e. statements of the Buddha and his disciples recorded in the Canon. The second group includes jatakas, i. e. parables about previous incarnations of the Buddha. The third group includes historical documents: in particular, edicts of the Indian king Ashoka (3rd century B. C.) and the poem «Mahavamsa» (Sri Lanka, 5–6th centuries). The fourth group includes doctrinal sources (commentaries, articles, etc.). The second part of the research examines the relationship between Buddhism and the concept of human rights; the author analyses the concepts based on the possibility of symbiosis of these systems of values, as well as the concepts that affirm their antagonism. The author considers the Buddhist concept of crime whereby forgiveness and re-education as a means of eliminating unwholesome states are considered more efficient than punishment. The following is the Buddhist ecological concept that emphasises the welfare of animals. Further, the author analyses the attitude of Buddhism to labour and entrepreneurship and pays special attention to the concept of Buddhist economics (E. F. Schumacher and others).
Key words: Buddhism, history and philosophy of international law, law of human rights, international criminal law, international environmental law, international economic law, international law of the sea
Ispolinov A. (Moscow) Impartiality of judges of the International Court of Justice when considering the South-West Africa case
The circumstances related to the International Court of Justice’s 1962 and 1966 judgments in the South-West Africa case are considered from the perspective of impartiality of judges and mechanisms for preventing a conflict of interest that could directly threaten legitimacy of the judgment and the court itself. It is emphasised that the personal qualities of judges have a significant impact on their assessment of the factual and legal circumstances, the course and results of the discussion of the case and the court’s judgment. The circumstances of adopting the ICJ judgments of 1962 and 1966 confirm the obvious need to create in any international court the institutional mechanisms to monitor the impartiality of judges, besides their voluntary resignation or removal from office. No less important are the mechanisms to prevent the so-called relative partiality, which arises when there is a conflict of interest in a case and which is eliminated by the recusal of a judge. The absence of such an effective mechanism can seriously affect the legitimacy not only of the court’s judgment, but also of the court as a whole.
Key words: International Court of Justice, South-West Africa, international justice, impartiality, conflict of interest, self-recusal of a judge
THEORY OF LAW AND STATE
Travnikov N. (Kurgan) Theoretical jurisprudence and criteria of scientific knowledge
Conceptual ideas about the essence of the state and law were formed during the period of underdevelopment of the scientific methodology of cognition of social phenomena and the embryonic state of empirical base on human social behaviour. In this regard, the fundamental provisions of jurisprudence are mostly based on abstract ideas of philosophers, sociologists, psychologists, legal theorists and are poorly based on facts from natural sciences. The rapid development of archeology, ethology, evolutionary biology and genetics makes it possible to consider the main issues of jurisprudence on the basis of scientifically established facts. The article briefly describes the criteria allowing to distinguish between scientific knowledge and various forms of pre-scientific perception of reality. Legal knowledge is compared with the main criterion of scientificity. It is concluded that the provisions of the general theory of law gravitate towards philosophical and worldview views and do not fully meet the positivist standard of scientificity. The rejection of the scientific picture of the world, creationism, dualism, the presence of a metaphysical component of the nation’s culture, and the specialisation of humanitarian education are considered as possible reasons for the removal of jurisprudence from exact sciences. The negative consequences of the lack of such requirements to legal research as reasoning and building judgments on the basis of facts are noted. It is proposed to adapt the concepts of the general theory of state and law to scientific facts about man and society.
Key words: scientific criteria, exact sciences, humanitarian systems of knowledge, research result, fact, opinion, biological and social reasons for rejection of scientific knowledge, problems of legal research
Orlov D. (Nizhny Novgorod) On the problem of determining the cost of legal regulation
The article discusses some problems of the quality of regulatory legal acts and their implementation, among which are redundancy and unreasonableness of legal regulation, irrational use of resources. This leads the author to the problem of cost estimation of legal regulation. A small number of scientific works on this topic is noted. The author outlines several potential directions for studying the cost of legal regulation: identification, systematisation and analysis of factors indicating the need for legal regulation; assessment of the quantity, quality and relevance of regulatory legal acts; search for opportunities for «real» interaction between law-making bodies and law enforcers.
Key words: legal regulation, cost of legal regulation, assessment of lawmaking and law enforcement procedures, effectiveness of legal regulation
Manuilov A. (Yekaterinburg) On the peculiarities of legal regulation of cyberspace
The article examines the problems of cyberspace regulation. The virtual environment needs to be regulated due to the expansion of its influence on all aspects of social life. The author emphasises that the regulation of cyberspace is possible only if its specific features are taken into account, which primarily include the absence of physical barriers and territorial restrictions. The author analyses key models of cyberspace regulation, highlighting their advantages and disadvantages. Particular attention is drawn to the role of non-governmental institutions in the legal regulation of cyberspace.
Key words: cyberspace, legal regulation, jurisdiction, information and communication technologies, self-regulation
PUBLIC ISSUES AND POLITICAL SCIENCE
Shiraliev I., Denisov D. (Yekaterinburg) Conflict of interests in the activities of members of public councils under executive bodies of subjects of the Russian Federation
The article discusses certain problems related to the legal status of the persons of the subject of public control, as well as the issues of their responsibility for committing corruption offences. A comparative analysis of the concepts of «conflict of interest» enshrined in the federal laws «On Combating Corruption» and «On the Fundamentals of Public Control in the Russian Federation» is carried out. The authors put forward some proposals for improving the Russian legislation regulating relations in the field of counteraction to corruption and public control.
Key words: counteraction to corruption, prevention of corruption, subjects of public control, conflict of interest, personal interest, public council under a government body
Uvarov A. (Sochi) Issues of the system of federal relations development in Russia
The article analyses the content of the Federal Law «On general principles of organisation of public power in the subjects of the Russian Federation». Following the constitutional amendments of 2020, it strengthens centralisation in the regulation of federal relations. Attention is drawn to the establishment in the law of additional principles of organisation and activities of public authorities of the subjects of the Russian Federation; however, their appearance did not entail a qualitative change in this institution of power. The author compares the current provisions on the procedure for the formation and status of the supreme public authorities of the subjects of the Russian Federation with similar provisions of the Federal Law «On general principles of organisation of legislative (representative) and executive bodies of state power of the subjects of the Russian Federation» (which is no longer in force); distinctive features and some shortcomings of modern legal regulation are noted. Special attention is paid to the issues of responsibility of regional bodies and officials to federal public authorities. The article considers various ways and forms of redistribution of powers (differentiation, allotment, withdrawal, transfer) between regional and federal levels of government in Russia.
Key words: distribution of powers, joint management, public authorities, federation, subjects of a federal state
COMPARATIVE JURISPRUDENCE
Kokotova M. (Yekaterinburg) Unity or diversity of opinions in the acts of local consultative bodies
The article is devoted to the structure of acts of consultative bodies representing the population of municipality before its authorities. The legal regulation of activity of the economic and social counsels of the autonomous communities of Spain and regional, economic and social counsels of France, municipal consultative bodies of Portugal and Deutschland is characterised. The author analyses the idea of common will and its realisation in legal regulation and practice. Options for reflecting in the decisions of consultative bodies the opinions of their members are considered, and the advantages and disadvantages of each option are discussed. The author noted that voting is an efficient way to express the will of the majority and legitimate the legal act; moreover, it is easier to organise a vote then to describe all the existing positions. Although, dissenting opinions allow to defend minority’s interests and to present the real correlation of positions. It is concluded that since the decisions of consultative bodies are not legally binding and are intended to provide useful information to local authorities, it is preferable to reflect different positions and provide their justification.
Key words: local consultative bodies, common will, unanimity, vote, dissenting opinions
CRIMINAL LAW AND PROCEDURE
Lopatina T. (Smolensk) Limits of criminal liability in medical risk conditions
The article examines the issue of the limits of criminal liability of medical workers and formulates the features of liability in conditions of reasonable medical risk that may arise under the influence of objective and subjective factors. The criteria of reasonableness of risky actions during medical intervention are analysed. It is indicated that the scope of criminal liability of medical workers is associated both with the special status of the subject of liability and with the specifics of determining the limits of the performance of professional medical duties. The need for a uniform practice-oriented interpretation of the concept of reasonable risk in medical activity is emphasised, which will contribute to the elimination of its arbitrary application in judicial and legal practice. The conclusion is made about the need for legislative regulation of criminal liability in the field of medical services and adoption of guiding explanations of the Supreme Court of the Russian Federation on the issue of reasonable risk in medical activity.
Key words: criminal liability of medical workers, medical risk in criminal law, medical error, limits of medical risk
Mirasov R. (Chelyabinsk) Development of forms of guilt in Russian legislation
The article provides the author’s periodisation of the historical development of forms of guilt and other signs of the subjective side of the crime. Such ancient sources of law as the Russian Truth, the Dvina Charter, the Pskov Judicial Charter, the Novgorod Judicial Charter and the Belozersk Charter are considered. It is briefly analysed how the ancient documents resolved the issue of distinguishing between intentional and unintentional acts. The author notes that the first attempt to divide crimes into intentional, unintentional and accidental ones was made in the Cathedral Code of 1649; in the Military Article of 1715 intentional, careless and accidental crimes were specified. Only in the documents of the 19th century four forms of guilt and their characteristics were designated, and they were further developed in Soviet regulatory legal acts.
Key words: crime, guilt, forms of guilt, subjective side of crime, direct intent, indirect intent, criminal thoughtlessly, criminal negligence
QUESTIONS OF INVESTIGATION AND OPERATIVE-RESEARCH ACTIVITY
Nelyubin K. (Naryan-Mar), Belyakov A. (Yekaterinburg) On the application of the social ties conception in homicide investigations
The article considers the concept of social ties in the context of the relationship between the murderer and his / her victim. From the position of different branches of knowledge (sociology, psychology and criminology) the structural elements of social tie are considered: deeds, communicative situations, social statuses and roles, zones of social space. The authors conclude that the use of knowledge about these elements will allow not only to establish the identity of murderers more effectively, but also to achieve a reduction in crime.
Key words: social ties, deed, communicative situation, social status, zone of social space, murder
CIVIL LAW AND PROCEDURE
Elfimova E., Svalova N. (Yekaterinburg) Legal regime of the enterprise under Russian civil legislation
The authors indicate that the concept of «enterprise» has a dual meaning: it is both a subject and an object of law. They emphasise the ambiguity of the issue of civil turnover of an enterprise as a real estate object. Based on the analysis of civil legislation, law enforcement practice and the views of certain scientists on this problem, the authors draw conclusions about terminological inaccuracy when using the concept of «enterprise» as a legal entity, about the misconception of participants in civil turnover, who often substitute the concept of «enterprise» with the concept of «business» or transfer separate property (movable, immovable, etc.), assuming that the contract is aimed at the transfer of the enterprise. In addition, there is a threat of unprotectability of a commercial designation due to its use by trade and other enterprises that do not meet the requirements of civil legislation. In order to eliminate these inaccuracies and contradictions, it is proposed to amend the civil legislation.
Key words: enterprise, property complex, unitary enterprise, civil turnover, commercial designation
PROCURACY SUPERVISION
Ergashev E., Bakirova D. (Yekaterinburg) On some problems of conducting prosecutor’s inspections
Inspection is used in most prosecutorial activities, including non-supervisory ones. Many problems arising in the conduct of prosecutor’s inspections are related to the lack of proper legal regulation of this legal means. The legislation on the prosecutor’s office does not provide a definition of the concept of «prosecutor’s inspection»; moreover, there are no provisions on the structure of the inspection. There are different approaches to the methodology and tactics of inspection activities. The question of when to notify the supervised body of the intention to conduct an inspection remains open. The following questions are also relevant: whether the rules for conducting inspections set out in Article 21 of the Law on Prosecutor’s Office apply to other areas of prosecutorial activity; is it necessary to issue a decision to conduct an inspection for each fact of violation of the law? In addition, the authors address the issue of non-supervisory inspections carried out by prosecutors when considering criminal cases in the courts.
Key words: legal means of the prosecutor, prosecutor’s inspection, structure and types of prosecutor’s inspection, legality
LABOUR AND SOCIAL LAW
Golovina S., Belozerova K. (Yekaterinburg) Payment of forced absenteeism: a way to protect an employee or a measure to punish an employer?
Recovery of payment for forced absenteeism is widely used in law enforcement practice. The necessity to recover such payment in case of illegal transfer or dismissal of an employee is pointed out in the norms of the Labour Code of the Russian Federation dedicated to the reinstatement of an employee in his / her previous job. However, neither the term «forced absenteeism» nor the rules of its payment are disclosed by the legislator. As a result, approaches to the definition of the period and the legal essence of forced absenteeism differ significantly, leading to ambiguity in law enforcement practice. Such legal uncertainty generates a violation of the constitutional principle of equality of human and civil rights and freedoms, because in similar conditions some reinstated workers are in a more favourable position then others. The article substantiates the necessity to consider the payment of forced absenteeism as compensation, and the obligation to pay such compensation is a special case of material liability. This approach allows to determine the moment of completion of the period of forced absenteeism and the grounds for its payment.
Key words: payment of forced absenteeism, material liability of employer, damage, restoration of violated right, protection of labour rights, measure of employer’s liability
Zaykov D. (Moscow) Counting error in labour relations: problems of interpretation and peculiarities of judicial practice
The institution of unjustified enrichment, regulated by civil law, is applied in various branches of Russian law. It acquires special significance in labour relations where it is expressed in the recovery of overpaid wages from an employee. By analogy with civil law regulation, one of the grounds for refusing to recover such amounts is the presence of a counting error. At the same time, the legislation does not disclose the content of this concept, which has led to the emergence of various approaches to its interpretation in law enforcement and judicial practice. A narrow interpretation of the counting error as an arithmetic error made when calculating wages (other payments) has become widespread. According to a broad approach to the interpretation of a counting error, it is not only an arithmetic error, but also a technical error that occurred as a result of a computer system failure. The Constitutional Court of the Russian Federation put an end to this dispute: it gave an exhaustive interpretation of the counting error, but at the same time created prerequisites for an unjustified expansion of the grounds for collecting overpaid wages from an employee. The author concludes that the prevailing position in judicial practice on the concept of «counting error» does not correspond to the current level of digitalisation and automation of society, and therefore it is necessary to replace the term «counting error» and define its content at the legislative level.
Key words: counting error, unjustified enrichment, wages, employee
ECONOMICS AND LAW
Formakidov D. (Perm) Commercial concession agreement: legal nature and essential conditions
The article analyses the legal nature of relations arising from the commercial concession agreement. The legislative regulation of this agreement is examined and a comparative legal characteristic of commercial concession and related contractual constructions is given. The features of a commercial concession agreement are identified, allowing recognise it as a type of licence agreements. It is established that the only essential condition of the agreement under study is its subject – the actions of the copyright holder to provide the user with the rights to use a set of exclusive rights, business reputation, and commercial experience of the copyright holder. Some ways to improve the regulation of relations arising from a commercial concession agreement are proposed.
Key words: commercial concession agreement, franchising, franchise, license agreement, contract system
Solovev M. (Yekaterinburg) Features of public procurement under extraordinary legal regimes
The article studies the provisions of the legislation regulating the modification of the ordinary procedure of public procurement under special administrative-legal regimes. The main features of procurement procedures under extraordinary legal regimes are considered, including: 1) simplified procurement mechanisms characterised by efficiency and greater discretion of the law enforcer; 2) deviation from the general rules of transparency; 3) deviation from the rules of immutability of contracts. It is noted that COVID restrictions, as well as the sanctions pressure of unfriendly states, have clearly demonstrated the hierarchy of principles of public procurement: the priority is given to the principles of efficiency, all other principles, including transparency and ensuring competition, should be applied to the extent that they do not conflict with the need to ensure the most effective satisfaction of state and municipal needs.
Key words: public procurement, state and municipal procurement, special administrative-legal regimes
PAGES OF HISTORY
Zaytseva I. (Yekaterinburg) Improvement of the organisation and activity of the Russian advocacy (following the scientific discussions of the 1950s and 1960s)
The article analyses the main proposals for improving the organisation and activities of the RSFSR advocacy, expressed in the course of scientific and practical discussions that took place in the Soviet legal periodicals in the 1950–1960s. The author focuses on the historical traditions of regulating certain aspects of the organisation of advocacy, its activity and the status of an advocate in different periods and on a certain continuity of these traditions. A brief conclusion is made that the Soviet legislation and the modern Russian legislation took into account a number of proposals made by the participants of the analysed discussion.
Key words: advocacy, advocate’s activity, advocate’s status, state management of the advocacy, independence of the advocacy, remuneration of advocates’ labour