The second issue 2017
STATE AND LAW
|Grachev N. I. The Principle of Unity of State Power as the Real Legal Basis for Its Organization and Activities
The intent and functions of the state power in a society suggest its arrangement on the basis of certain principles which are currently not always in line with those set forth by the constitutional legislation as independent foundations of the constitutional order. One of such principles is the principle of unity of state power. This article deals with its political and legal substance, its correlation with the principle of separation of powers, historic forms of its effectuation, and modern mechanisms for its implementation in the state construction practice of some particular states. The research methodology rests on system and structure-function analysis, concrete historical approach and comparative law approach, which allow the author to conclude that unity of state power is a consistent historical characteristic, being the permanent foundation of state-formed societies which constantly reproduces itself in the course of their evolution, during and after revolutionary transformations, regardless of its confirmation in the constitutional legislation.
|Andreev N.Yu. Sovereignty of State: Attempt of Reconceptualization
Author tries to investigate legal construction of the sovereignty, divide political and legal aspects of the sovereignty. For this author retraces movement of the sovereignty doctrine, from roman times till nowadays. As a result, it proves authentic of the state sovereignty and state legal personality.
|THEORY AND METHODOLOGY OF LAW|
|Solovev S.G. Institute of Redistribution of Powers — the End of the Russian Self-Government Fundamentalism
This research paper is about the conceptual, theoretical and practical aspects of legal institute of authority redistribution between local government bodies and the bodies of the Russian Federation state power.
Prerequisites for introduction, the content and an expert estimates of specified legal Institute prospects are investigated in the paper. From the goal-setting theory position in the study the main objectives for which achievement the local self-government was included in the state system mechanism of the Russian Federation are formulated and author’s vision of hierarchy of these purposes is offered. Considering the hierarchy of local self-government objectives attempt to estimate the prospects of improvement the authority redistribution mechanism between local self-government bodies and the bodies of the Russian Federation state power is made and also to formulate the prediction of rather probabilistic results of analyzed legal institute introduction to the local self-government modern system.
|Skachkova A.E. General Mechanism of Legal Regulation as a Theoretical-Legal Aspect and the Vector of Scientific Research
The author examines theories of the mechanism of legal regulation (MRP), defines the MPR as the proper law-making activity in a particular sphere of legal relations (legal rules, legal acts of different levels of legal regulation, the form and legal effects), represents the vision of a single mechanism of legal regulation as a general model, its stage and elements. Illustrated by the example of budgetary relations, that failure imperative policymaking federal regulations subjects of Federation, municipal formations, as part of the failure of the legal acts (lack of legal regulation of questions related to their conduct as «mandatory» legislation), and the adoption of legal acts containing norms, contradicting law, has greater legal force corruption-factors are a significant obstacle to the realization of constitutional rights and freedoms of man and citizen. At the same time these flaws make ineffective protective provisions for legal liability. It is proved that the Prosecutor’s office of the Russian Federation is the sole authority of the Federal state power, which, also thanks to unity and centralization, has authority to verify compliance with the rule of law in the public sector, including the implementation of the federal imperative positive requirements of subjects of Federation, municipal formations, to assess the completeness and comprehensiveness of the legal regulation, as well as the ratio of regulatory and enforcement legal norms.
|PHILOSOPHY AND THEOLOGY OF LAW|
|Fetisov T. Kenotic Law in the Holy Scriptures of the Old and New Testaments
The article describes the origins of the Bible kenotic-sky law. The author considers the key to the concept of kenosis Christology, in the context of the theocratic principle of absolute power is in their communications ontological unity of love and justice, morality and law. The aim of this study is theological and philosophical and legal basis proposed by the author of the new term — «kenotic right». As part of this work is also carried out an analysis of the theocratic sense of justice, in which the key role given to obedience. One of the conclusions of the article is that the right is much broader allocated to it by the legislative boundaries and includes everything that is able to be a regulator of normative human behavior in society, and, in particular, religious ideas and values. This means that epistemological contours of this study go beyond the boundaries of biblical studies, freeing the philosophical-legal science hermeneutical space for theology right.
|Karabaeva K.D. Modern Interpretation of Morals in the Context of Realization of Constitutional State Conception
The paper describes meaningful aspects of morality, morals and ethics basing on both an existing philosophic-historical tradition and interpretations of these ethical concepts by contemporary researchers specializing in the field of ethics. The paper focuses on up-to-date tendencies in social relations, which change considerably the conceptions of historically developed social institutes, public interests and demands. The author defines a role of law in realization of the constitutional state conception from the position of relationship of law and morality. The study is based on dialectical method, according to which society, human, and state are considered in the process of continuous modification and interconnection.
|CONSTITUTIONAL AND MUNICIPAL LAW|
|Pisarev A.N. Improvement of Legal Status Political Parties in the Russian Federation Taking into Account Foreign Experience of the Party Construction
In the article, from the point of view of modern trends in the development of Russian state and law, the main features and peculiarities of the legal status of political parties in the Russian Federation are determined. The actual problems of party building existing in the RF are analyzed. In accordance with the foreign experience of the legal regulation of party building, the main lines of activity of political parties are determined, due to the goals and objectives that they are facing, and proposals are made to improve the legal status of political parties in accordance with universal democratic and legal standards.
|Pavlova N.F. Sociological Support of the Strategic Process in Monocities, Municipalities: Legal, Theoretical, Methodical Approaches to the Implementation of the Federal Law № 172-FZ of June 28, 2014 «On Strategic Planning in the Russian Federation»
For the best implementation of Federal Law No. 172-FZ of June 28, 2014 «On Strategic Planning in the Russian Federation», it is necessary to include sociological support of the strategic process in the development of long-term programs, strategies for socio-economic development of the territories. It will ensure better participation of the population in developing solutions, which they will implement in the future.
|Sentsova (Karaseva) M.V. Tax and Civil Law: Alternatives, Alignment, Transformation
The article examines actual practical manifestations of the relationship between tax and civil law, and also analyzes the possibilities of establishing in the Tax Code of the RF a civil liability for causing harm.
|Shepenko R.A. The Implementation of the Principle of Self-Determination of Nations and the Tax Law: the Experience of Georgia
Colonial policy, wars and related processes have influenced on the development of law in general and tax law in particular. Under their influence the operation of legal norms in space was given the expansive or restrictive effects. There are two components of the restriction of the operation of tax law in space today: inner and outer. The implementation of certain legal principles may be the basis for such restrictions. In the given article some issues of implementation of the principle of self-determination of nations and related implications for the tax law of Georgia are discussed.
|Demin A.V. The Settlement Agreement in Tax Disputes
The author considers the settlement agreement as a transaction that is twofold: first, it puts a tax dispute (procedural aspect); second, it implies the emergence, change, termination, clarification of the substantive obligations of the parties (the substantive aspect). The settlement agreement in tax disputes is a typical example of optionality. It is the result of harmonization of the wills and mutually beneficial resolution of the conflict by the parties; the court only checks the legality of its conditions and approves its decision.
|Dementev I.V. Actual Problems of Tax Law Enforcement Mechanism
The article defines the concept and features of the tax law enforcement. It determines the structure of the mechanism of tax enforcement, including tax-procedural proving, the interpretation of tax law and the drawing of individual tax-legal act. The conclusion about the need to define in the Tax Code of the Russian Federation concept of evidence, object of the proving when taking a variety of individual tax-legal acts, the legal requirements for tax-procedural evidences. It is proposed to settle in the RF Tax Code the order official interpretation of legal norms, the form acts written explanations of tax laws and the procedure for their drawing and publication.
|Jilkin V.A. The Coordinating Role of the United Nations in Maintaining International Peace and Security and the Role of Russian Diplomacy in the Formation of an Equitable and Sustainable World Order
The article discusses the need to reform and strengthen the role of the UN and its Security Council. In the 21st century the center for regulating international relations and coordinating world politics should remain with the United Nations. Russia consistently stands for joint actions aimed at ensuring a democratic and fair world order on the basis of strict observance of the norms of international law, recognition of an unconditional value of cultural diversity, national sovereignty of states and the Charter of the United Nations. The eff orts of Russian diplomacy are based on a broad public consensus, a clear vision of Russia’s national interests, foreign policy priorities on the supremacy of international law and the provisions of the UN Charter.
|Shugurov M.V. International Legal Regulation of Technology Transfer for Purposes of Safe Producing and Using the Toxic Chemicals
The present article is devoted to analyzing the place and significance of obtaining the chemical security in the context of transition to sustainable development. As modes of ensuring rational producing and using the toxic chemicals is being considered appropriate technology created at the national level and in order of international cooperation. International transfer of given technology is marked out as an important direction of international interaction regulated by international law. Much attention is paid to analyzing the provisions of conventions on chemicals that include obligations to transfer the technology to developing countries bearing into mind their needs. Author formulates the package of measures indispensable to increasing the effectiveness of international legal regulation of technology transfer for purposes of ensuring the global chemical security.
|Okhotsky E.V. Legal Framework and Mechanisms of International Cooperation in the Field of Combating Corruption
The article attempts a scientific analysis of goals, tasks and principles of international cooperation in the sphere of counteraction of corruption, the main components and priorities for the implementation of the international system of legal regulation of anti-corruption activities, the main directions and forms of cooperation of Russia with international organizations and other countries in combating corruption. Emphasizes that corruption today is not a local phenomenon, far beyond the limits of national socio-political, economic and legal space of sovereign States, became a powerful material component to all the most dangerous types of local and international crime, requires attention both on the part of each individual state from the international community as a whole. The article presents analysis of international instruments on the fight against corruption. It is shown that at present the most concern are the types of international crime with the powerful corruption, terrorism, laundering of proceeds of crime, weapons trafficking, international drug trafficking. The author believes that to organize effective implementation of the state anti-corruption policy in the context of globalization and dynamic changes of the global order is impossible without scientifically validated political strategy and good knowledge of relevant international legal standards, without close cooperation between national law enforcement agencies and civil society institutions with relevant external legal, information-analytical, scientific and other institutions.
In the scientific revolution introduced the concepts of corrupt government, government corruption, and the export of corruption, a comparative analysis of their basic characteristics and features to highlight their contrast to such phenomena as the corrupt state, and systemic corruption. The author hopes that the ideas, evaluation, synthesis, and suggestions contained in the article, will be of interest to the reader and will become an additional source of intensification of scientific research in the subject field of the study of international cooperation in the sphere of counteraction of corruption.
|CRIMINAL LAW AND CRIMINAL PROCESS|
|Mischenko E.V. Processual Status of Person in Relation to Whom Resolving the Issue of Extradition for Criminal Prosecution or Enforcement of Sentence
This article is dedicated to problems, overlaps with unregulated processual status of person in relation to whom resolving the issue of extradition for criminal prosecution or enforcement of sentence in Russian’s criminal proceeding legislation. Based on Russian legislation, author researches following problems: detention of person who is the subject of extradition, custody, participation of attorney, extradition of person who could be under compulsory medical measures and so on. Some suggestions of additional articles in Russian Criminal Procedure Code, linked with lawyer’s participation in cases of extradition, order of person’s detention with purpose of extradition are included.
|Larinkov A.A., Shiplyuk V.A. The Problems of Determining the Place of Preliminary Investigation of Crimes Committed Using Internet, Cellular and Remote Banking Systems
The article is devoted to some problems related to the determination of venue of the criminal procedure checks, criminal cases and preliminary investigation of crimes committed using the Internet, cellular and systems of remote banking services. The authors in this paper offer possible ways of its solution. The authors present based on the analysis of current criminal procedural legislation, law enforcement practices and points of view of different scientists.
|Rumyantseva Yu.N. Improvement of the Criminal Legislation on Liability for Crimes: the Experience of Foreign Countries
The author identifies common approaches to the definition of a special subject of crimes in the legislation of foreign countries; gives comparative characteristics of existing interpretations of the term «officials» as a special subject of crimes in the legislation of France, Germany, USA and Japan; identifies some general characteristics with a focus on the future succession to the legislation of the RF. It is stressed particular the approach of differentiation of liability for misconducts, depending on the signs of a special subject in the law of Japan. Also here is suggested the introduction of a composite concept of officials with classifying it into types to the Criminal Code of the RF.
In the article is analyzed of foreign experience of regulation of liability for misconducts in the legislation of France, Germany, USA and Japan, as well as countries of the «former» republics of the USSR; highlighted common features with stress on peculiarities of technique for constructing lineups, the future of continuity.
The author makes the conclusion a number of proposals on improvement of structure of a crime under article 285 of the Criminal Code of the RF.
|Verbitskaya T.V. The Role and Importance of Counter-Terrorism Measures in Improving of the Russian Criminal and Criminal Procedural Law
The terrorism (especially international), organized (including armed) criminality represent phenomena, which encroach on the very possibility of states existence. These threats have always been of current interest, and, as stresses the international practice (first of all, development of tools and methods used by terrorists, illegal armed organized criminal groups), the government needs to take constantly, to improve measures, combating these phenomena. Russia has positioned itself as a state power, ready to make every eff ort to eliminate these threats, both within the world space as a whole and on the national level. In the article, on the base of international legal instruments, the achievements of Russian doctrine, it is analyzed federal law, by which there have been made changes to the Criminal Code of the RF and the Criminal Procedure Code of the RF, for establishing additional measures to counter terrorism and ensure public safety.
|Rotnova I.B. The Essence and Principles of Public Prosecution in Criminal Proceedings
The article deals with the concept and essence of the charge in the criminal process, the principles of activity and powers of the public prosecutor, comparative legal research of certain norms of Russian and Ukrainian legislation regulating the participation of the prosecutor in the consideration of criminal cases by courts is carried out.
|Neshpor E.A. Trends and Prospects of Development of Efficiency of Educational Influence on Convicted Persons in Correctional Institutions
In the present article considers topical issues of estimation of efficiency of educational-correctional impact applied in penal institutions. Detail reveals the author’s position on the essence factors that positively and negatively affect the performance of the forms and methods of the treatment of prisoners, as well as the ways of contributing to the further improvement of the effectiveness of the rehabilitation process.
|Demchuk S.D. Social Deviations as a Criminologically Significant Element of the Process of Social Development
Industrial and technological revolution increased material standard of living of people, but at the same time deep disparities in opportunities and prosperity between the richest and the poorest remain in countries all over the world and that preserved essential contradictions of social development. Growth of demand and consumption is not accompanied by an adequate development of social relationships, cultural progress and the improvement of the moral qualities of people themselves. A phenomenon of the consumer society sharply ratcheted up the problem of unmet needs and the surplus, led to the erosion of social values, institutions, norms and attitudes, as well as the weakening of the social control.
|PROSECUTION SUPERVISIONAND LAW ENFORCEMENT ACTIVITIES|
|Jilkin V.A. Corruption in Finland as a Threat to Political Stability and National Economy
The article explores the problem of corruption in Finland and the need to take appropriate legislative and administrative measures in accordance with the fundamental principles of the national legislation. Despite the data of Transparency International, according to which Finland ranks third in the list of the least corrupt countries, the report of the National Police Board and the studies of Finnish experts cite the data on the growth of corruption in Finland, including latent corruption. These problems point at the need of changing the legislation and taking measures to prevent and combat corruption, as well as forming efficient mechanisms of anti-corruption policy by the state, through combining preventive and punitive measures, improving the accounting and auditing standards and strengthening the international cooperation in recovery of proceeds from corruption-related crimes.
|Igonina N.A. The Rights of Socially Vulnerable Categories of Citizens in Russia. Oversight Activities of the Prosecutor’s Office for Their Protection
The article deals with problems of realization of constitutional rights and freedoms of man and citizen in Russia (education, protection of life and health, for social protection and social security, for work, etc.). Indicators of the quality of life in their unity and the relationship with constitutional personal and socio-economic human rights and the degree of their implementation in Russia on the basis of analysis of the country’s population and life expectancy, and the results of the comprehensive observation of living conditions of the population (KUZH) are indicated. The necessity of improving the quality of life of the population of the country is grounded. Caring for a person is ranked among the key tasks of the state, the factors of social vulnerability of citizens are named. The notion of the object of the human rights of the prosecutor’s office is formulated. The position of perfection of prosecutor’s-supervision legal means for strengthening protection of socially vulnerable categories of citizens is grounded. Prosecutor’s activity outside the criminal law sphere is generalized on the example of the prosecutor’s supervision over the observance of human and citizen’s rights and freedoms and illustrated with examples of the practice of supervising the observance of citizens’ housing rights in the sphere of shared housing construction.
|Gavrilova M.N. Participation of the Prosecutor in Resolving the Issue of Termination of the Criminal Case by the Appellate Court
The article analyzes the legal status of the prosecutor in resolving the question of the termination of the criminal case by the court of appeal in rehabilitating and non-rehabilitating grounds, including in connection with the refusal of the prosecutor from prosecution.
|Kostyuk I.V. Employment and Self-Employment as Forms of Income-Generating Activities
In this paper we study the concepts of employment and self-employment in terms of income-generating activities. The analysis of these concepts, their correlation and characteristics is carried out. The general and particular criteria for employment and self-employment have been identified for securing the legal category of «self-employed citizens» as forms for the realization of income-generating activities, along with employment under an employment contract and entrepreneurial activity, but not identical with them.
The approaches of the legislator to the legal regulation of the employment of the population, the use in this context of the expression «self-employed citizens» are considered. The analysis of economic and legal categories «profit» and «income» is carried out with the purpose to reveal bases of differential fastening in legislative acts concerning the form of realization of income-producing activity.
|Budnik R.A. Inclusive Mechanism of Copyright Regulation in Russia
The paper is dedicated to research of prerequisites for establishment of inclusive legal regulating mechanism of copyright relations in the information society. We have studied the question of necessity to take in account inherent properties of intellectual works while developing the rules of their legal regulation. We consider that natural theory of law supposes the existence of two kinds law morality and its influence on the legal system. We have fulfilled analysis of the embodiment of morality of duty and morality of aspiration in copyright legal provisions. It is demonstrated that the legal enforcement of morality of aspiration allows to authors standing for maximal proliferation of their works for free to realize own intellectual rights with greater effectiveness. To support the positive influence of morality of aspiration on copyright legislation in the interests of society and intellectual rights holders, the author of this article recommends enhancing development of the inclusive regulating mechanism of copyright relations in Russia.
|LAW TRAINING AND EDUCATION|
|Hatova Zh.M. On Some Aspects of Improving the Quality of Legal Education
In an article the author, citing the practice of the Federal Service for Supervision in Education and Science, relying on legislation, the experience of the teacher of the university, draws attention to some shortcomings in teaching students in legal disciplines and proposes measures on their elimination. Using specific examples, the author suggests actively using fieldworks in teaching students, not only for educational purposes, but also for proper educational impact and the formation of a proper civic position.
|Kerimov A.D. When the State No Longer Functions «Сlearly as a Clock».
Review of the Monograph by Doctor of Juridical Sciences, Professor I.V. Ponkin «Theory of Deviantology of Public Administration: Uncertainties, Risks, Defects, Dysfunctions and Dips in Public Administration»
|Demidov N.V. Review of the Thesis I.I. Andrianovskaya «Continuity in the Labor Law of Russia»
This article is a review of the thesis «Continuity in the Labor Law of Russia» by I.I. Andrianovskaya. In the reviewed dissertation and this review, the problems of historical continuity of the norms and institutions of labor law in Russia are analyzed. The author of the thesis made an attempt to reveal the patterns and tendencies of the development of the labor law of Russia, considered continuity as a legal category, and traced the successive links in the labor law of Russia. The author of the review notes that the value of the thesis is represented by theoretical generalizations made on historical and modern material. In the review of the thesis, controversial points were noted about the criteria by which certain norms and institutions are recognized as successive in the work, the lack of criteria for assessing the degree of continuity and its quality.