№ 6 (153) / 2023

INTERNATIONAL LAW

Likhachev M. (Yekaterinburg) Persona in international law: the genealogy of the oblivion

The article takes on critical approaches to the personality and more generally to the personhood in international law. Employing methodology of critical genealogy the author deconstructs the structures of conventional personality in international law as to its origins, methodological taking and ontological status. There is no uniform and stable meaning continuum of the international personality and subjectivity as the ideas about those and that involved in international legal realm are strongly influenced by the considerations of the power maintenance and imposing of hierarchies. Nothing is predetermined naturally as to the international personality and its bearers. The anthropocentrism and anthropomorphism has nothing to do with human emancipation. On the contrary – it resulted in human subjugation by the state and statehood. To replace discrete modernist personality the notion of the legal presence is proposed. The presence as a methodology troubles the supremacy of those who power and put to the light those who and that what were suppressed.

Key words: international legal personality, international legal presence, critical genealogy, human being, State, positivism

Batalov A. (Montréal, Canada) Specifics of international regulation of air services and WTO rules

The article examines the specifics of international regulation of air services and shows the trends towards its liberalisation based on bilateral and regional multilateral agreements providing for wide or even unlimited access to air transportation markets and almost full freedom for commercial air transport activities. The articles considers the possibilities and problems of applying rules and principles of the General Agreement on Trade in Services (GATS) to the air transport industry, including air transport itself. On the one hand, it is concluded that international air law has no formal restrictions for extension of the GATS to any air transport services. On the other hand, despite significant progress in liberalising international regulation of air services and applying free market principles thereto, States still do not consider air transport as an inalienable element of global trade and remain within the framework of a balanced exchange of market access rights through the system of bilateral and multilateral regional agreements frequently affected by political and other non-economic factors. Therefore, application of GATS to air transport does not appear realistic in the foreseeable future. At the same time, further development of regional cooperation in the area of international regulation of air services seems quite promising.

Key words: air transport, air services, trade in services, liberalisation of international regulation of air transport, World Trade Organization, regional cooperation

PUBLIC ISSUES AND POLITICAL SCIENCE

Chebotarev G. (Tyumen) Public chamber as a special public-state institution of civil society

The article describes the role and place of public chambers in civil society, examines their constitutional and legal status. The author proposes to consider public chambers as a special public-state institution that performs intermediary functions in the interaction between civil society institutions and public authorities. Special attention is paid to the development of the system of public chambers in Russia; it is proposed to supplement the federal legislation with the norms that expand the forms of interaction between the Public Chamber of the Russian Federation and the public chambers of the subjects of the Russian Federation, between the regional chambers and the public chambers of municipalities, the public councils under the executive bodies of state power of the subjects of the Russian Federation. The author makes a conclusion about the significant role of public chambers in the consolidation of civil society institutions, the representation of public interests in the unified system of public power in Russia.

Key words: civil society institutions, public associations, public chambers, public authorities, forms of interaction

Ulyanov A. (Chelyabinsk) Parliamentary control as a means of evaluating and improving the efficiency of public authority

The article studies the main forms of parliamentary control as a legal means of assessing and improving the efficiency of public authority in Russia. The problems of application in the Russian practice of such forms of parliamentary control as reports of the Government of the Russian Federation, parliamentary investigation, parliamentary (deputy) inquiries, and «government hours» are outlined. The author comes to the conclusion that parliamentary control, on the one hand, allows to assess the work of parliamentarians and institutions of representative democracy, and, on the other hand, is an important means of enhancing the efficiency of the entire system of public authority. It is noted that in the Russian constitutional practice not all forms of parliamentary control can be equally implemented.

Key words: efficiency of public authority, parliamentary control, parliamentary investigation, parliamentary inquiry, «government hours»

COMPARATIVE JURISPRUDENCE

Petrova K. (Yekaterinburg) Formal unenforceability of an arbitration agreement and problems of its interpretation in Russia and Germany

The parties to an arbitration agreement do not always realise that the wording of the arbitration clause is important for determining the competence of the arbitral tribunal, and do not pay due attention to the content of the agreement or clause at the stage of concluding contracts. This leads to the fact that clauses are recognised as pathological in court proceedings, and courts make polar decisions on the future fate of such arbitration agreements. Russian judicial practice is replete with court decisions in which an arbitration agreement is recognised as unenforceable due to ambiguity of its content. The author proposes to consider pathologies of the content of the arbitration agreement as one of the grounds for its formal unenforceability. The author concludes that it is necessary to enshrine in Russian legislation a rule according to which courts, in order to decide on the enforceability of an arbitration agreement, should completely abandon its literal interpretation, investigate the will of the parties and the circumstances of the conclusion of the agreement.

Key words: arbitration agreement, pathological arbitration clause, unenforceability of an arbitration agreement, interpretation of a contract

CRIMINAL LAW AND PROCEDURE

Karavaeva Yu. (Perm) Criminally significant legal states as special signs of the subject of crime

The high dynamism of criminal lawmaking may cause the need to rethink traditional criminal law institutions. In particular, the trend towards specialisation of criminal law observed in recent years causes an increased research interest in a special subject of crime, the signs of which the legislator often uses in order to differentiate responsibility. The doctrinal approach to its definition has an alternative – the status-role approach, outside of which, however, there is a number of signs characterising the subject of the act as a special one. These signs are represented by one or another criminogenic state of the individual that takes place at the time of committing a crime, which is reflected by the legislator who gives such states the criminal-legal meaning of the sign of the corpus delicti. At the same time, some states are a normative projection of real social properties of a person (for example, psychophysiological states of affect, intoxication), while others exist only in the legal plane (for example, a criminal record, administrative punishment). The state of the subject in this case is a condition for bringing to criminal responsibility, and its basis is the committed act containing the elements of the corpus delicti, including special signs of the subject. The expediency of highlighting these signs in criminal law is associated, first of all, with the need to create a methodological basis for the study of the mechanism of criminal behaviour.

Key words: special subject of crime, social status and role, legal states

Maksurov A. (Yaroslavl) The areas of application of special knowledge in criminal proceedings

The author points out the ambiguity of the category «special knowledge», considers the differences between special knowledge and common knowledge. The reasons for the use of special knowledge in the criminal process are investigated. It is noted that legal knowledge is excluded from the number of special knowledge that can be used by experts (specialists). Attention is drawn to the modern trend to determine the areas of application of special knowledge directly in special legislation. The author highlights the criteria for classifying knowledge as special and proposes to fix the relevant definition in the Code of Criminal Procedure of the Russian Federation. The author substantiates the possibility of application of special knowledge in criminal proceedings in four forms: conducting a forensic examination; using the assistance of a specialist in the investigation of a criminal case and within the framework of court proceedings; interrogations of both an expert and a specialist; audits, documentary and other checks.

Key words: special knowledge, common knowledge, sources of special knowledge, expert, specialist

PROCURACY SUPERVISION

Artemenkov V. (Moscow) On the classification of supervision activities of the prosecutor’s office of the Russian Federation

The article examines the problem of the definition by the federal law of the constitutional and legal concepts «supervision over the observance of the Constitution of the Russian Federation and the execution of laws» and «supervision over the observance of human and civil rights and freedoms», which appeared in Part 1 of Article 129 of the Constitution of the Russian Federation as a result of the constitutional reform of 2020. According to the author, this constitutional novelty does not limit the scope of the supervisory activities of the Russian prosecutor’s office to specific subjects that are obliged to observe the Constitution of the Russian Federation and to execute laws, as well as to respect human and civil rights and freedoms. At the same time, the Federal Law «On the Prosecutor’s Office of the Russian Federation» contains such a restriction. The author concludes that the federal legislator is in the process of defining the mentioned constitutional and legal concepts, the scope and content of which is not limited to the scope and content of the concept of «prosecutor’s supervision» (Section III of the named Federal Law). Based on this thesis, two approaches to classifying supervisory prosecutorial activities are proposed. The first one focuses on the self-sufficiency of the Constitution of the Russian Federation, its direct action, which allows to divide the constitutional and legal concept «supervision carried out by the prosecutor’s office» based on the fact that its scope and content are covered by the activities of all subjects obliged to observe the Constitution of the Russian Federation, human and civil rights and freedoms, as well as to execute laws. The second approach focuses on the Federal Law «On the Prosecutor’s Office of the Russian Federation», which enshrines the generic concept «prosecutor’s supervision» (Section III), the content of which is revealed in the specific concepts, that are the titles of Chapters 1–4 of Section III, and the corresponding scope of supervision.

Key words: prosecutor’s office of the Russian Federation, supervision over the observance of the Constitution of the Russian Federation and the execution of laws, supervision over the observance of human and civil rights and freedoms, functions of the prosecutor’s office of the Russian Federation

Kalashnikov V. (Kemerovo) Organisation of prosecutorial supervision over the legality of criminal prosecution of business entities

The article focuses on the uneven distribution of legal remedies against unjustified criminal prosecution between unscrupulous participants of economic activity and citizens carrying out economic activity in the status of self-employed or without it. At present, criminals who have the formal status of entrepreneur or no status at all are afforded more guarantees than persons actually carrying out entrepreneurial activities or entrepreneurs who have been prosecuted for general criminal offences. It is noted that the objectives of raiding can be achieved by unlawful prosecution for any offence. It is proposed to extend the protective mechanisms of prosecutor’s supervision (with some exceptions) to business entities accused of committing not only economic crimes, but also general criminal offences. Some recommendations on simplification of prosecutor’s supervision in the considered sphere are formulated.

Key words: entrepreneurial activity, self-employed, means of prosecutorial supervision, economic crimes, general criminal offences, raiding

Shobukhin V. (Yekaterinburg) Legal support for the organization of prosecutor’s offices in the Urals in the 30s of the XX century: to the 90th anniversary of the formation of the prosecutor’s offices of the Sverdlovsk and Chelyabinsk regions         

The article is devoted to the 90th anniversary of the formation of the prosecutor’s offices in the Sverdlovsk region and the Chelyabinsk region. The prerequisites and conditions of their formation, the specifics of functioning of the prosecutor’s office of the Ural region are analysed. The features of the legal regulation of prosecutor’s activity, the specifics of structural organisation of the prosecutor’s office, the problems of legal status of prosecutorial staff are investigated. Special attention is paid to the tragic fate of prosecutors who became victims of political repression, and to the problems of staffing. The importance of popularising the history of the prosecutor’s office in society and the state-patriotic education of prosecutors is noted.

Key words: prosecutor’s office, prosecutor, court, the Urals, repression, bodies of justice

LABOUR AND SOCIAL LAW

Buyanova M. (Moscow) Protection of the rights and legal interests of employees as a task of labour legislation

The article considers some imperfections of legislative regulation of methods of protection of employees’ labour rights. It is proved that the obstruction of an employee in the exercise of such self-protection can be qualified as an administrative offense falling under Part 1 of Article 5.27 of the Code on Administrative Offences of the Russian Federation. Attention is drawn to the fact that labour law obliges trade unions to protect the rights of their members only; however, in accordance with the Federal Law «On Trade Unions, Their Rights and Guarantees of Activity», this organisation must protect not only trade union members, but also all employees. In this regard, it is proposed to amend the law on trade unions and the Labour Code of the Russian Federation. It is noted that when adopting local normative acts, the employer is obliged to request the opinion of the trade union (which, however, does not prevent it from adopting the act even if the trade union does not agree with it). Meanwhile, provisions on remuneration and bonuses for employees can be included in the collective agreement, which is adopted jointly by the employer and the trade union. But the employer may refuse to include the relevant rules in the collective agreement so as not to take into account the opinion of the trade union. To exclude such a situation, the author proposes to amend the Labour Code of the Russian Federation. When describing the role of bodies of control (supervision) over compliance with labour legislation in the protection of labour rights, the author emphasises that the subordination of labour inspectors to the Ministry of Labour and Social Protection of the Russian Federation calls into question their independence. Attention is drawn to the fact that, in accordance with Article 398 of the Labour Code of the Russian Federation, a collective labour dispute also includes unresolved disagreements between the parties to labour relations in connection with the failure or improper fulfilment of their obligations under the collective contract or agreement. It is proved that, since such a violation directly affects the rights of participants in labour relations and should be qualified as a violation of labour legislation, a collective labour dispute may become the subject of proceedings in a court of general jurisdiction.

Key words: labour legislation, protection of labour rights of employees, self-protection, trade unions, control (supervision) over compliance with labour legislation, individual labour disputes, collective disputes

Tolkachev N. (Tomsk) Electronic documents as a means of proof in judicial resolution of labour disputes

The article discusses the problems of research and evaluation by the court of electronic documents as evidence when considering disputes arising from labour relations. The thesis is formulated that insufficient legal development of the category «electronic evidence» has led to increased requirements to the procedural form of electronic documents (for example, the requirement to submit a notarised protocol for the inspection of an electronic document). If such requirements are not met, the court may recognise the electronic document as inadmissible evidence. The article focuses on such electronic evidence as information from electronic document management systems (EDMS) and electronic correspondence (in messengers, social networks, by e-mail). The article analyses the prospects of using information from EDMS for evidentiary purposes within the framework of judicial resolution of a labour dispute. It is concluded that information from EDMS may not have the necessary evidentiary value, unlike electronic correspondence. Electronic correspondence, in turn, appears to be the most ambiguous evidence in terms of admissibility in labour dispute resolution practice. It is noted that the use of instant messengers, social networks and e-mail has become commonplace in labour relations. However, this method of electronic communication between the employee and the employer is not regulated. The conclusion is made that legal regulation of such communication at the local level will help to overcome the problem of verification of electronic documents and, as a consequence, the problem of admissibility of electronic evidence in civil proceedings on labour disputes. The proposal to introduce the section «Procedure of electronic communication between the employees and the employer» into the structure of internal labour regulations is formulated.

Key words: electronic evidence, admissibility of evidence, electronic document management systems, correspondence in instant messengers, correspondence by e-mail, labour disputes

ECONOMICS AND LAW

Vinnitskiy A., Kharinov I. (Yekaterinburg) Specialties of the legal regime for the use and development of land plots in flood zones   

Based on an analysis of the water and urban planning legislation and the practice of their application, the authors conclude that flood zones are a specific type of zones with special conditions for the use of territories due to their intended purpose. It is argued that the authorities cannot verify the sufficiency of engineering protection measures for the land plot if the design documentation is not required for an individual residential or garden house under construction, and private developers – real estate owners automatically assume the negative consequences of such development. It is substantiated that the powers of public authorities in the field of implementing measures for engineering protection of territories and objects from the negative impact of water are based on the norms of urban planning, not water legislation. At the same time, the powers of public authorities include the creation of engineering protection structures only for general purposes; and legal entities and individuals – owners of real estate should not be involved in their construction.

Key words: zones with special conditions for the use of the territory, flood zones, water bodies, engineering protection, delimitation of powers of public authorities, individual housing construction, restrictions on land rights

PAGES OF HISTORY

Sokolova E. (Yekaterinburg) The funeral ceremony of the members of the Romanov House as an integral part of the legal policy of the Russian state (second half of the XVII – first quarter of the XVIII century)

The article analyses the organizational-ideological and organizational-legal means that were used in the political and legal practice of the official funeral ceremony of the Russian state in the second half of the XVII – first quarter of the XVIII century. On the basis of a wide range of carriers of historical-legal information the peculiarities of the funeral ritual are determined in relation to the position of the deceased in the socio-political hierarchy of the ruling persons and their closest relatives. The correlation of the sacred and political-legal motives of the Romanovs’ funeral ceremony is revealed, taking into account the tendency to oust the highest church hierarchs from the sphere of state power. The conclusion is made about the interdisciplinary nature of this problem and its prospects for the study of ways to legitimise the Russian autocracy during the formation of imperial institutions of supreme state power.

Key words: funeral ceremony, legal policy, interdisciplinarity, autocracy, imperial power, means of legitimisation

MUSEUM OF SLI – USLA – USLU HISTORY

Zipunnikova N., Kalinina A. (Yekaterinburg) Traditions of legal education and science in the light of ego-sources: values and meanings

The article actualises the issue of the potential of ego-sources for cognition of the evolution of education and science, in particular, jurisprudence. Attention is drawn to ego-terminology, the variety of ego-documents and their significance in the context of anthropological turn and the development of memory studies. The special role of ego-materials in the study of the history of the Russian education and science is shown; the auto-texts of the censor and professor A. V. Nikitenko are considered separately; the need to turn to subjective sources in the study of the so-called transitional periods is emphasised. The appeal to ego-sources in the study of the experience of legal education and science is associated with the need to expand the source space and multidimensional characteristics of such experience. The emphasis on scholarly issues and the «teacher – student» line in connection with the inclusion of auto-documents in the study of the history of training of lawyers and jurisprudence is noted. The experience of the Ural State Law University named after V. F. Yakovlev in involving various sources of personal origin in scientific, educational, and museum practices is characterised. The conclusion about the need for self-sufficient comprehension of ego-documents in an interdisciplinary way is made.

Key words: ego-sources, educational and scientific space, history of legal education and science, Ural State Law University named after V. F. Yakovlev, sources of personal origin, preservation of memory