Fourth issue 2017
BUSINESS AND LAW
|Bochkarev S. V. Problems of legal policy in the sphere of business
For at least the last decade, the country’s authorities have paid particular attention to the creation of a comfortable business environment in the Russian Federation. A lot has been done on the way to a good goal. The changes have affected many branches of the law. At the same time, a number of problems on the way to creating a comfortable business environment remain relevant and acute. In particular, the validity of the findings of the Commissioner for the Rights of Entrepreneurs in Russia and the specialists of the Center for Strategic Research — the main moderators of the topic of pressure from law enforcement agencies on business — is questionable. The author analyzes the causes and root causes of the pressure of law enforcement agencies on business. It is recommended to develop and introduce into the criminal procedure a special procedure for consideration at the pre-trial stage of the issue of the possibility of transferring a criminal case in the sphere of business relations to the civil law plane.
|Bogustov A.A. The Problem of Determining the System of Private Law and the Model Law «On Entrepreneurship»
The article examines the problems caused by the adoption of a Model law on entrepreneurship. The consequences of the possible inclusion this statute in national legal systems are analyzed. The common and private methods of scientifi c knowledge are put in a basis of research. At a spelling of work such general scientifi c methods of research, as supervision, the description, a method of the analysis and synthesis, an induction and deduction, and as methods of rather comparative-law and historical-law research were used. It is concluded that the Model Law on Entrepreneurship, which seeks to introduce the dualism of private law in the national legal systems of the post-Soviet countries, is not only unable to make legal regulation of economic activity more eff ective, but also to create new problems in this area. They are in the delineation of civil and business law, the impossibility of clearly establishing the boundaries of their actions, duplicating the legal material. In addition, there arise the question of the need to adopt certain model laws both in terms of their practical infl uence on the development of positive law and the improvement of legal doctrine. Inadequate scientifi c justifi cation of the recommendations may lead to the rejection of their national legislators and the impracticability of the harmonization of law in the post-Soviet space.
|Markovic V., Vicentijevic K., Petrovic Z. Term and Legal Position of an Individual Entrepreneur in Republic of Serbia
An entrepreneur is a business-able physical person who performs activities to gain the profi t and who is registered according to law. Starting from the national and theoretical and legal solutions and court practice from comparative law, the authors analyze the concept and the legal position of an individual entrepreneur noticing the problems and inconsistencies in legal regulations. The authors of the work make a few conclusions and suggestions: 1) terminology is not coordinated with legal terminology from comparative law. In our law, the legal term is “entrepreneur”, which is a too wide and unspecifi ed term because in economic profession this term represents the genus term for individual and collective entrepreneurship; 2) analyze all forbidden activities for entrepreneurs, judge the reasons pro et contra and work on eliminating prohibitions and favoring legal entities; 3) set by law the bankruptcy of an individual entrepreneur i.e. the individual bankruptcy of a physical person; 4) work on passing a separate legislation in the fi eld of the individual entrepreneurship, especially on passing and changing the laws which would regulate handicraft s (including old craft s and jobs of home industry), free professions as well as agricultural activity.
|Tymoshenko A. A. Protection of Entrepreneur’s Rights: New Approaches to the Formation of the Criminal Policy of the State
The article examines some problems of protecting the rights of entrepreneurs against unreasonable criminal prosecution through the implementation of criminal policy. It is noted that the existing problems of the pressure of unscrupulous law enforcers on business can be resolved through the proper application of the law. Only the creation of an adequate system of checks and balances in the construction of a model of proper criminal justice among the system of law enforcement agencies will allow realize the set goal. It is also necessary to refl ect on the revision of the existing fundamental norms of the criminal procedure law and establish, as an independent goal of criminal procedural activity, the identifi cation and investigation of crimes.
|Merkushina S. I. Entrepreneurial Risks in Criminal Law
The article deals with the notion of «ordinary entrepreneurial risk», the possibility of using it as a criterion for distinguishing civil liability for non-fulfi llment of obligations and criminal liability for criminal acts involving non-fulfi llment of contractual obligations, the possibility of applying this concept in the sphere of the right regulation of social relations arising in connection with the commission of crimes, the ratio of ordinary business risk and reasonable risk (art. 41 of the Criminal Code of the RF).
|ECONOMICS AND LAW|
|Ruzanov I.V. Positive Discrimination and Its Application in the Economic Sphere
The problem of business’ governmental support in the light of constitutional equality principle is researched in this article. The mentioned principle is a cornerstone of person’s legal status in the modern democratic states. It is perceived as a prohibition of discrimination; however it also outlaws unjustifi ed privileges for some group of people. What are unjustifi ed privileges and how those privileges can be justified? Th ose questions are raised in the article. There are 2 main concepts of equality principle: liberal concept of opportunities equality and the concept of results equalities. The Russian Constitution states the second model. Consequently, the so-called reverse discrimination is possible. This kind of discrimination implies the creation of legal privileges for some group of people. The desire to support some groups, not to restrict them is in the heart of this model. Distinguishing the positive discrimination and ordinary discrimination is quite diffi cult problem and there were a lot of judicial disputes on the issue. However, in economic fi eld this problem is even more diffi cult because of the reasons described in this article. On the one hand, the effi ciency must be achieved; on the other hand the constitutional requirement of equality must be fulfi lled.The two mentioned values rather oft en contradict each other. It requires to work out the constitutionally based principles of governmental policy in this fi eld. It was suggested: public importance of privileges recipient’s business, reasonableness, targeting, competitiveness.
|Gruzdev O.S. Contractual Model of the Deliverable Futures Contract with the Participation of the Exchange
The present article analyses the contractual model of a deliverable futures contract with the participation of the exchange which under some regulations of current legislation plays the role of a trading authority. The author emphasizes that the exchange is a party to derivatives contracts and deliverable futures contracts, in particular. Furthermore, this provision is confi rmed by the analysis of the intention of the deliverable futures contract’s parties. Their intention is directed at the conclusion of an agreement just with the exchange and not with other trading participants. The author analyses the structure of contractual relations arising out of a deliverable futures contract (despite the fact that this contract is an agreement with the trading authority — the exchange) and points out that this contract can be characterized as a purchase and sale agreement according to Article 454 of the Civil Code of the Russian Federation (CC of RF).
|Semina E.D. To the Issue of Allocating Provisions for Doubtful Debts to the Expenses of Banks for Tax Purposes
In this article, the problem of allocating provisions for doubtful debts for unpaid interest on time to the expenses of banks for the purposes of corporate income tax is considered.
|Bazhanov S.V. Artifi cial Bankruptcy of Credit Institutions and Illegal Withdrawal of Bank Assets Abroad
Since the early 1990 in the Russian Federation there is a continuous outfl ow of capital abroad, as a result of which the assets earned by Russian businessmen, instead of investing in the domestic economy, go to support the civilized existence of «developed» bourgeois countries. For these purposes, the developed organizational and regulatory legal infrastructure is used. The bulk of fi ctitious operations and nonreturn of funds is carried out through a network of «laundering» banks, off shore companies and «one-day fi rms». Stable, highly professional organized transnational groups have been formed, including notaries, consulting companies, credit organizations, trust funds specializing in the withdrawal of capital and its placement in off shore zones or in countries with which the Russian Federation has concluded treaties in order to avoid double taxation. Methods of capital withdrawal are diverse, demand for them is provided by a developed infrastructure, legal and illegal mechanisms are closely intertwined, which complicates their timely detection and suppression. The Bank of Russia is doing a great job of neutralizing the shadow money fl ows of brokers and microfi nance organizations (MFI), as well as transit operations used to withdraw assets abroad, in the context of which about 300 banks operating on the domestic market lost their licenses, although they are involved in the transactions described not only credit organizations, but also other subjects of fi nancial legal relations, related, including with the circulation of securities. In the light of the above, the problem of improving the regulatory legal regulation and departmental (bank), as well as prosecutorial supervision over the execution of laws by the subjects of the credit and banking sector of the economy, including credit and non-credit fi nancial organizations (NFO), taking into account the nature, scope and specifi city of their activities, is actualized.
Russian journal of legal studies. An analysis of the current situation shows that the majority of used, constantly modifi able schemes for the withdrawal of bank assets abroad, the transfer of cashless cash into cash is preceded by multi-way payment chains for accounts of all kinds of Russian organizations. In this case, the transit companies involved in them do not, as a rule, carry out real fi nancial and economic activities. Taxes and other mandatory payments are paid by them on a minimal scale or are not paid at all, and the operations conducted do not have a visible economic meaning. The management of the Bank of Russia regularly monitors the banking sector of the economy in order to track them in time and take appropriate preventive measures. Attention of credit institutions is drawn to transit operations with the isolation of inherent characteristics, for which purpose the regulator prepared, in particular, Letter No. 236-T of December 31, 2014 «On increasing the attention of credit institutions to individual customer transactions». This article examines the factors associated with the illegal withdrawal of bank assets abroad, including the artifi cial bankruptcy of credit institutions, complicated by the current state of the institution of bank secrecy.
|THEORY OF THE STATE AND LAW|
|Fedin I.G. Conscientiousness in Private and Public Sectors of Russian Law
Article is devoted to the questions connected with ways and extent of introduction of category «conscientiousness» in all branches of the Russian system of the law. The relevance of a research consists that in a wide range of modern scientifi c works there are no researches which are in a complex considering category «conscientiousness» in private and public branches of Russian law. Besides, the need for development of this category for public branches is almost completely ignored that the author fi nds unreasonable and gives arguments in favor of need of development of the principle of conscientiousness for the public sphere of the Russian legislation. The purpose of article is the complex analysis of category «conscientiousness» for identifi cation of the general signs of its manifestation in various segments of system of Russian law. Research problems, proceeding from the current legislation are: to disclose the general signs of category «conscientiousness» applicable both for branches private, and for branches of public law; to defi ne what nature, in the context of division of system of the right on private and public, is the most inherent category «conscientiousness». At permission of the tasks set in work general scientifi c methods, such as analysis, synthesis, comparison, including comparison and private scientifi c methods from which it is necessary to distinguish system approach were used. The following conclusions became result of the conducted research: as well as in the private-law sphere, the category «conscientiousness» is widely presented at various institutes and designs of public branches of the right, including branches of tax, administrative, penal law, procedural branches; the legislator, irrespective of character of the relations regulated by it, uses uniform model of qualifi cation of conscientious behavior; the category «conscientiousness» is all-legal and has more essential orientation to public regulation, following from which, and, gaining logical development, the principle of conscientiousness extends to private law.
|Baev V.G., Kalinina I.A. Implementation of the Objectives of Environmental Policy in the Framework of the State-Private Partnership as a Factor of Sustainable Development of Russia
The purpose of this article is to study the possibilities of public-private partnership in the in realization of environmental policy of the Russian Federation and the Concept of sustainable development. Authors consider that the Russian government should be solving in the process of development of the Russian economy problems of ecology (providing the favorable environment; decrease in anthropogenous load of the environment; increase in effi ciency of use of energy resources; correction of negative consequences of resource-intensive industrial development).
Russian journal of legal studies.
The public-private partnership is investigated as special legal institute and as a form of interaction between government and business. The potential of public-private partnership in solving problems in the sphere of ecology is studied in these planes. Public-private partnership is studied in various aspects: form of investment in environmental protection; mechanism of achievement of ecological interests of the state and society; a way of stimulation of introduction in economy of innovations which are capable to provide interests of ecosystems. Authors support adoption of the comprehensive and integrated programmatic law which will provide a triad of interests: investments — innovations — ecology. The analysis of legal base of public-private partnership and programmatic laws on sustainable development of the Russian Federation has allowed to draw a conclusion on absence between them direct connection. Th is has a negative impact on the implementation possibilities of state-private partnership to overcome the environmental crisis. Authors off er changes in the legislation for elimination of this inconsistency. They defi ne the problems of public initiative and public oversight in public-private partnership in the fi eld of ecology. Authors approve need of creation of mechanisms of public control for this sphere.
|CONSTITUTIONAL AND MUNICIPAL LAW|
|Jilkin A.D. Development of the Russian Constitution and Political Alternatives in Early 1992
Working out of the Constitution of Russia in early 1990s was held at the time of dramatic events in our country. Among them the crash of USSR, GKChP action, the confl ict between the president and the parliament, contradictions between the central and regional authorities and radical liberal economic reforms. The start of those reforms in early 1992 and attendant confl icts between diff erent political actors made the great infl uence on the process of working out of the Basic Law of the country and even drove it. The author use institutional set-up in its historical version. The article presents an analysis or alternative constitutional projects written in early 1992 by those who reckoned themselves among supporters of democratic reforms. The author reviews and compares not only key issues of submitted texts, but tries to discern purposes and objectives of the political actors supported each of them. The analysis of researching projects let come to conclusion that even at that time Yeltsin team intended to adopt Basic Law in the version that could empower the president to act without references to the parliament. In general researching alternatives seems to be promising trend which is important for both: understanding of the political discussion content and process in the early 1990s and ways of evolution of the Russian Constitution and state in future.
|Antonov D.E. Analysis of the Infl uence of Changes in the Information Space of Russia on the Electoral Process of Modern Russia
The article makes an attempt at a theoretical analysis of the structure of the national information space of Russia. The author describes the impact of the transformation of the structure of the information space on the election process on examples of elections to the State Duma and municipal elections in Moscow, using the methodology of studying system dynamics. According to the results of the study, it is concluded that in the context of the political process mediatization, social media, as channels and tools of information and communication exchange within the information space, will increasingly infl uence the electoral process.
|LAW ENFORCEMENT ACTIVITY|
|Jilkin V.A. Implementation of International Legal Provisions on Preventing Corruption in the Russian Federation and Abroad
Th is article presents issues of the fi ght against corruption and analysis of anti-corruption processes in Russia, Finland, Israel, Great Britain and the USA. Issues of international cooperation in the anti-corruption sphere have already been considered by the United Nations, the World Bank, the International Monetary Fund, the World Trade Organisation, the Organisation of American States, the Organization for Economic Cooperation and the European Union. The fi ght against corruption in the Russian Federation is one of the key areas of consolidation of the statehood and it is being performed step by step through improvement of the legislation, activities of law enforcement, regulatory and public authorities of all levels as well as cultivation of civil intolerance to any manifestation of this social blemish. Russia is actively engaged in international dialogue on a wide range of issues for preventing corruption within the scope of coordination activities and international cooperation in diff erent areas, including issues of anti-corruption in the sphere of sports, ecology and education. Cooperation with relevant international authorities and international organizations is one of the priorities of the General Prosecutor’s Offi ce of the Russian Federation. Given that the Russian anti-corruption system is based on the national legal culture in the context of historical, social and economic development and specifi c social needs and interests, the author emphasizes that anti-corruption cooperation shall be based on respect for national legal systems and compliance with the international law under coordination of the UN. Legislative proposals on the need for introducing grounds for application on recovery of property, owned by corrupt offi cials and registered under a third party’s name, to the public revenue and increasing the terms of imprisonment for bribery, which shall be prepared for further improvement of the anti-corruption law.
|Yuan Xun The Problem of Illegal Migration from China to Russia and Solutions
In the article raises the complex problem to describe the components of the phenomenon of Chinese illegal migration in the Russian Federation, to identify ways of solving problematic issues. The investigation of the interpretation and application of the term «illegal migration» in regulatory documents and scientifi c publications of the United States, European Union and Russia. Outlines the author’s understanding and classifi cation of the term as applied to the Russian migration situation. Shows the scale and form of Chinese illegal migration in Russia, examines the factors that aff ect the actualization of this problem, which can be classifi ed in two main groups: factors aff ecting the penetration of Chinese illegal immigrants in Russia, and the factors that attract the attention of Russian society to Chinese migration. Ambivalent results were made: on the one hand, Chinese migration, including its irregular component contributes to the solution of the problem of labor shortages in agriculture and construction, especially in the Far East and Eastern Siberia. On the other, Chinese illegal migrants to Russia, is а real problem, which to some extent has a negative impact on the economy and society of the Russian Federation. In addition, the article States that the Chinese migrants (including illegal) in some cases become victims themselves, and in Russian society continues to evolve xenophobia and negative attitudes towards migrants. The study is fi xed and develops the idea that there are three major ways to combat illegal migration: 1) improving the legislative framework and the eff ectiveness of its enforcement, 2) international cooperation on a bilateral and multilateral basis and 3) the effi ciency of law enforcement agencies in developing and carrying out special operatively-preventive events.
|Golovko I.I. The Limits of Prosecutor’s Participation in Civil and Administrative Proceedings
The article deals with the powers of the prosecutor outside the criminal justice and the limits of this activity. The aim is to establish the content of the public prosecutor’s participation in the proceedings outside the courts. It is established that the criteria limits the participation of the prosecutor in civil and administrative proceedings are: the rules of law; region relations; the circle of persons, the rights, freedoms and interests protected by the Prosecutor; the range of subjects to which the public prosecutor has the right to make claims in court; ways to protect the rights and freedoms of other persons; the specifi city of the prosecutor’s participation in the proceedings of the diff erent stages; procedure in certain situations; preventing the deterioration of the supervised entities, violation of rights of other persons.
|Gorshkova I.D. Legal Needs of Potential Benefi ciaries of Free Legal Aid (Based on the Results of a Study of Disabled People and Low-Income Groups in Th ree Regions of the Russian Federation)
Part of the results of quantitative research among vulnerable groups of citizens covered by the Federal Law on Free Civil Legal Aid in the Russian Federation is presented. The survey was conducted in the Tambov, Ulyanovsk and Volgograd regions within the framework of the Council of Europe project in cooperation with the Ministry of Justice of the Russian Federation «Project on Free Civil Legal Aid and Assistance for Vulnerable Groups in the Russian Federation» (2015-17). Aft er presenting the context of the study, regional empirical material with generalizing characteristics on general issues is presented: the frequency of legal problems in target groups, the most common legal needs, how they operate, faced with legal problems, etc.
|Barkalova E. V. Actual Problems of Exemption from Criminal Liability for Tax Crimes in Connection with Compensation for Caused Damage
In this article are analyzed the problems of determination of the amount of damage caused by commission of tax crimes. The author delineates the concepts of «damage» as the circumstance to be proved, in cases of commission of tax crimes and as a part of the grounds for exemption from criminal liability for commission of tax crimes under the art. 76.1 of the Criminal Code of the Russian Federation and art. 28.1 of the Code of Criminal Procedure of the Russian Federation. Various scientific points of view and judicial-investigative practice on application of the mentioned above grounds for exemption from criminal liability are considered.
|Nalimov R.Yu. On Some Approaches to Assessing the Eff ectiveness of the Staff Reserve
The article describes the main approaches to determination of personnel reserve eff ectiveness of the state civil service of the RF. Special attention is paid to the model of balanced scorecard that has practical application for evaluating the eff ectiveness of personnel reserve.
|Chestnov I.L. Postclassical Anthropological Theory of Law in the Systematic Presentation of V.I. Pavlov: Review of the Textbook Pavlov V.I. «Problems of the Theory of State and Law». — Minsk: Academy of the Ministry of Internal Aff airs, 2017. — 262 p.
The article gives a summary of the main provisions of the textbook V.I. Pavlov «Problems of the theory of state and law». Of particular interest is the author’s concept of postclassical anthropology of law. The work details the postclassical understanding of the law. Anthropology of law is revealed as a human dimension of law. It is important that the author shows the possibilities of applying his concept to practice.