Contents of issue # 12/2015

doctor of legal sciences, professor

The Institute of State and Law of the Russian Academy of Sciences
10, Znamenka st., Moscow, Russia, 119019
E-mail: vechirkin@yandex.ru

The author employed comparative linguistic and content analysis to examine the terminology used in the British, French and German constitutions, other legal acts and international instruments to mean the concept of “supremacy of law” in the sense it is used in the Russian legal sources and legal literature (sometimes also of use is the term “domination of law”) and to reveal the differences in the origin, content and meaning of such word combinations existing between those used in the Russian language (other Slav languages) and foreign languages of Western Europe, also to show inadequacies of certain terms. The article shows that the principle of supremacy applies only to the notion of a state and to the notion of legitimacy (although the State in such terms is often understood to be a society in general). It deals with the definitions of “supremacy of law”, which were offered by international authorities. Furthermore, the author suggests such definitions should be modified to become more specific.

Keywords: supremacy of law, the term supremacy in foreign languages, a law-governed State, the principle of legality.

DOI: 10.12737/16624

  Full text in Russian

doctor of legal sciences, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: theory@izak.ru

The article examines modern trends in the development of domestic legislation. The author believes that the research traditions of the 1930—1950s do not any longer correspond to the realities of the legal system of today. The most important trend in modern dynamics of law is the individualization of the legal scope of regulation. Today we witness the creation of new types of laws — management, organization — to provide for the terms and conditions for social, political and other various types of events (Olympic Games, football World Cup, etc.). Also we witness the emergence of statutory laws which are created to lay down special status for various enterprises, organizations, agencies. The author believes that not all of those draft laws are of objective necessity. Examples are many. Other rules of individualization are subject to analysis. In general, it is concluded that the trend of individualization (fragmentation) is gaining momentum, and this is to be taken into account when we study the structure of the legislation and the structure of law.

Keywords: legal regulation, individual legal regulation, legislation, system of legislation, the crisis of law.

DOI: 10.12737/16625

  Full text in Russian

candidate of legal sciences

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: theory@izak.ru

The article deals with the law enforcement practices, the impact of such practices on contemporary law making and perfection of laws. Special attention is given to the analysis of possible forms of interaction between various subjects of law enforcement, institutions of civil society and law-making institutions. Subject to analysis is the role of executive, judicial powers in the law formation processes, in the process of implementation of such legal norms, development of a legal system and dynamic functioning. The author make the conclusion to the effect that realization of law and law enforcement are both conducive to perfecting legislation. Modern trends should correspond to the realities in a given sphere of law and to reflect the situation in a state and society. This pursues the objective of adoption of the Law in compliance with the required standards of formal certainty and conducive to positive changes in the life of a society. The article reveals the role of a legal monitoring process to ensure feedback which makes the combination of a law making process and enforcement natural and smooth. Further development of legislation is viewed as expedient and efficient on the basis of the data collected through the monitoring process and dynamics forecasted.

Keywords: practices, law enforcement, realization, monitoring, feedback.

DOI: 10.12737/16626

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doctor of historical sciences, associate professor

Tyumen State University
10, Semakova st., Tyumen, Russia, 625003
E-mail: krest_e_a@mail.ru

While staying in an honorable exile, M. M. Speranskiy continued to attend to important state issues. Large-scale transformation of management and court system in Siberia crowned his efforts as a general Governor of Siberia. Article is devoted to opportunities of the reformed judicial organization of the western part of the region which became effective to administer justice. The author draws attention to the human and material resources of justice, as well as the ability to improve the quality of the administration of justice. The famous reformer failed to create efficient judicial mechanisms, he failed to see the specific features of the region and thus could not come to the right decisions. Audits did not improve the legal proceedings, the administrative authority was unable to influence the Justice processes, the financial position of the courts was poor, the region was not attractive for the legal profession. Hardships of the Siberian life and service did not attract judicial workers of the European part of Russia. Poverty, long cases, the lack of qualified employees, judges abuse — all these characterized the state of the judicial system in Western Siberia at that time.

Keywords: М. М. Speranskiy, “Siberian establishment”, functioning of the system of justice, Western Siberia.

DOI: 10.12737/16627

  Full text in Russian

doctor of legal sciences, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: civil@izak. ru

The article speaks of the ways and methods designed to perfect rules of the Civil Code of the Russian Federation relating to the compensation of damages caused by accidents. In defines specific features pertaining to the structure of obligations relating to the damage caused by a source of excessive danger. It explains the legal meaning of the power of attorney for driving as the basis to determine the proper defendant in legal claims for compensation. The author speaks of the need to establish all persons responsible for the damage caused along with the owner of the vehicle and to qualify them all guilty for the consequences.

Keywords: source of increased danger, subject structure of obligations, the power of attorney to drive a vehicle, elements of obligations, the relevant obligations.

DOI: 10.12737/16628

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candidate of legal sciences

The North-Eastern Federal University in Yakutsk
58, Belinskiy st., Yakutsk, Republic of Sakha (Yakutia), Russia, 677000

E-mail: rum.ykt@mail.ru

Analyzed is the novelty contained in Article 2 of the Civil Code of the Russian Federation. It provides for the inclusion of corporate relations into the sphere to be covered by civil law. The author firmly believes that such a novelty has an impact on the fundamental issues of the theory of corporate law, namely, the legal nature of corporate relations and its autonomous content. And it is important to identify corporate law as an independent branch of civil law. The author concludes that it is necessary to distinguish between the basic and derivative corporate relations. The corporate relations are of an absolute nature. In the light of what was stated it becomes evident that the imperative norms do have superiority to regulate corporate relations. The absolute nature of corporate relationship is an objective reason of the peremptory norms regulating corporate relations. It is concluded that the legal structure of a legal person is the most complex phenomenon in civil law. No other legal relationship does not arise with the birth of a new legal entity. It is impossible to differentiate norms, which, on one hand, define the legal status of a legal person, on the other hand - define the content of thus emerged relationship. This construction is the result of said relationship. Legal essence of this legal entity is manifested in respect of participation in legal entity or its management. And this determines the essence of all that relates to the legal status of a legal entity.

Keywords: corporate law, corporate relations, subject of the civil legal regulation, legal entity, corporation, corporate legal relationships.

DOI: 10.12737/16629

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candidate of legal sciences

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: ecology@izak.ru

The author presents a brief analysis of the conceptual foundations of legal monitoring, developed at the Institute of legislation and comparative law under the Government of the Russian Federation. The author stresses the importance of monitoring activities with a view to improving the legal system. The analysis of the current regulatory framework for legal monitoring develops further to the investigation of peculiarities of monitoring enforcement in the field of ecology. The article examines the organization of monitoring enforcement of the Federal bodies of Executive power which are to implement the state policy, legal regulation, control and supervision in the field of environmental protection and natural resources management. Attention is drawn to the planning of monitoring activities and its outcome. The author offers recommendations for the development of monitoring enforcement in the field of ecology.

Keywords: legal monitoring, law enforcement, legal regulation in the sphere of ecology and natural resources management.

DOI: 10.12737/16630

  Full text in Russian

doctor of legal sciences, professor

The Academy of Management of the Ministry of Internal Affairs of the Russian Federation
8, Zoi i Aleksandra Kosmodemyanskih st., Moscow, Russia, 125171
E-mail: skoblikov@list.ru

The article reveals and justifies the idea of monitoring by parliamentarians of law-making  results, and suggests the implementation model for this idea. The article proposes to start the implementation with the most important areas of law-making: to support fighting organized crime and corruption. By way of illustration, the author uses the interdisciplinary institute of the pretrial agreement on cooperation and the criminal law rule on the enhanced responsibility of persons holding supereminence positions in the criminal hierarchy. The article highlights a number of problems in contemporary law-making, which are reveled in examples and backed up by statistics: inflation of laws, haste and lack of proper justification in adopting them, inconsistencies in legislation requirements, gaps in legal regulation, legislature’s isolation from legal science, etc. The author notes that all these are corruptogenic factors, and proves the message that the author’s suggestions can partially correct the problems. The author argues that under the conditions of the reformed electoral legislation, the political competition will increase and this will help to implement the declared ideas.

Keywords: fighting organized crime, combating corruption, parliamentary control, problems of the Russian legislation, enforcement monitoring, pre-trial agreement on cooperation, supereminence in the criminal hierarchy.

DOI: 10.12737/16631

  Full text in Russian

candidate of legal sciences

The Elabuga Institute of the Kazan (Volga region) Federal University
89, Kazanskaya st., Elabuga, Republic of Tatarstan, Russia, 423600
E-mail: timur.kfu@gmail.com

Ensuring sustainable social and economic development of the country, especially in the present unstable economic situation, is indispensably connected with fighting corruption. Today, corruption as the main threat to observance of the principle of legality, is universally accepted. The problem of fighting corrupt practice is topical not only for the scientific community, but also for all government bodies. Rise in corruption in this country indispensably demands thorough understanding of international experience of the countries with the developed civil society institutions. The international community makes all efforts to consolidate the work on the prevention and suppression of corrupt practice. The article attempts to study and analyze the legislation of foreign countries concerning corruption fight and control. As part of the objective, for the purpose of the analysis several non-CIS countries were chosen. In conclusion, the author offers proposals on the improvement of the anti-corruption legislation.

Keywords: corruption, crime, counteraction, fight, foreign countries, public servants.

DOI: 10.12737/16632

  Full text in Russian

candidate of legal sciences

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: crim@izak.ru

Over the last decades corruption was taking on a huge scale to become the most dangerous phenomenon in the world community and has made such crime transnational. However, there is no generally accepted definition of a corruption corpus delicti. The difficulty is that corruption manifests itself in various forms. International legal acts in general define such crime as transnational corpus delicti of corruption. Such definition includes: bribery (active and passive) of public officials, abuse of influence for corruption purposes, illegal enrichment, money laundering, particular forms of making obstacles for justice, introduction of criminal liability for legal entities. Universal human environment can be achieved through implementation of internationally accepted standards in national legislations.  This article deals with implementation of the relevant international anti-corruption rules into the Russian Criminal Code, it also draws attention to those international rules which should be included into the Criminal Code to make anti-corruption actions successful. The article justifies amendments to the Russian Criminal Code relating to illegal enrichment, it extends the definition of bribery to include non-material benefits. The issue of re-introduction of the confiscation of property as a separate type of punishment has been raised more than once. Criminal liability for legal entities should make an issue. By way of concluding, the author suggests the framework definition of the corpus delicti of corruption as an international crime.

Keywords: corruption, anti-corruption actions, implementation, international legal act, transnational crime, crime of corruption nature, bribe, active bribe, passive bribe, illegal advantage, illegal enrichment, commercial bribe, money laundering, criminal liability of legal entities, confiscation of property, corpus delicti of a corruption crime.

DOI: 10.12737/16640

  Full text in Russian

doctor of legal sciences, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: crim@izak.ru

The article deals with the issues relating to humanization of criminal proceeding system as a method to be employed to regulate said sphere and the principle of humanism which is already provided for by the currently existing laws on criminal proceedings and the Constitution of the Russian Federation. The author speaks of humanistic values to be introduced into the criminal proceeding system, the importance thereof for the development of the relevant laws. Special attention is given to the moral aspects of the procedural norms. Observation of the principle of legality, respect for human dignity – all these require procedural guarantees to exclude any violations, and to ensure broader participation of the victims and representatives of the community at all stages of justice administration. The article examines the features of the legal status of the parties to the criminal proceedings, their rights and obligations against the background of the principle of humanism. Also attended to are the issues relating to the organizational and procedural legal guarantees in criminal proceeding processes, development of humanistic outlook. The author advocates for the inclusion into the criminal procedural code of the principle of humanism, so that the relations between the parties of the criminal process should be based on respect, observance of the fundamental rights, freedom and legitimate interests of a human being.

Keywords: criminal proceeding, the instrument of humanization, legal status of the parties in court proceedings, guarantees, humanistic values.

DOI: 10.12737/16641

  Full text in Russian

doctor of legal sciences

The Supreme Court of the Russian Federation
15, Povarskaya st., Moscow, Russia, 121260
E-mail: office2@izak.ru

Article 619 of the Civil Code of the Russian Federation has been of well established application with regard to the mechanism of the lessor’s right for early dissolution of the lease contract. Certain difficulties do exist in relation to the practices of the right to refuse a tenant lease. The article analyzes the legal practice with regard to the unilateral refusal to perform the obligations under the lease. Recommendations to address the problems identified through the establishment of a mechanism ratio rules of the Civil Code on the general grounds of termination of a civil contract, and the grounds for early termination of the lease. It has been determined that the formulation by the parties of “abstract” grounds for withdrawal does not meet the principle of respect for the economic stability of civil turnover. The grounds for unilateral termination of the obligations in the lease are to be substantiated in detail. 

Keywords: civil litigation, lease, contract enforcement, liability of the parties, termination of the contract, unilateral refusal to perform the obligations.

DOI: 10.12737/16643

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doctor of legal sciences, associate professor

Peoples' Friendship University of Russia
6, Miklukho-Maklaya st., Moscow, Russia, 117198
E-mail: elena_selina@bk.ru

Expert opinion and evidence is a new kind of evidence in criminal proceedings. There are still a lot of gaps regarding the expert’s opinion in law and in practice. The expert invited by the defender for the criminal case study, conducts a short survey using portable equipment, if it does not damage the materials under study. This requires the judge’s permission. Polygraph testing is carried out by a specialist. The expert can check everything that is available for public inspection: streets, buildings, countryside. The defender can announce in court the information obtained on the expert’s advice.

Keywords: expert, opinion, polygraph testing, research, lawyer, court, investigator, methodology.

DOI: 10.12737/16644

  Full text in Russian

candidate of legal sciences

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: mp3@izak.ru

The article analyses provisions of Article 15(4) of the 1993 Russian Constitution which states that “generally recognized principles and norms of international law and international treaties of the Russian Federation shall make an integral part of its legal system. The rules of the international treaty shall always apply”. In accordance with the Federal Law of 1995 “On International Treaties of the Russian Federation” the provisions of officially published international treaties that do not require domestic acts for implementation, shall apply directly. Other provisions of international treaties are implemented through legal acts. Some Russian jurists have taken the view, shared by the Supreme Court of the Russian Federation, that article 15(4) of the Constitution must be construed to mean that only ratified treaties take precedence over laws. Such a position originates in concepts of hierarchy of legal acts. This would mean that treaties not subject to ratification fall outside the scope of article 15(4) of the Constitution. Limiting the operation of article 15(4) to ratified international treaties only is unconstitutional. Refusing to apply a treaty concluded without ratification would prejudice the authority of the state, which bears state responsibility for the obligations assumed under intergovernmental and interdepartmental treaties. In this regard article 27 of the Vienna Convention on the Law of Treaties provides that “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.

Keywords: place of international treaties in domestic law, hierarchy of legal acts, domestic implementation of treaties, direct applicability, principle “pacta sunt servanda”, internal law, observance of treaties.

DOI: 10.12737/16645

  Full text in Russian

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: olgbelusva@rambler.ru

The article covers the questions about the areas and limits of harmonization of private law in the context of regional economic integration. The author reveals two mechanisms of approximation of legal systems — unification and harmonization of law, explores the instruments of such approximation on the example of the EU, CIS, EurAsEC, EEU. The author draws attention to the fact, that in the context of regional integration, the harmonization of law is the only possible mechanism, because economic cooperation is not restricted by the creation of the uniform rules, but actually affects public aspects of legal regulation, which, in its turn, broaches the question about state sovereignty. The author makes a conclusion that model legislation could be the orienting point for the adoption of legally binding acts in future. International agreements and acts equivalent to the EU directives are the only possible instruments for the consensus building on public-legal questions. Acts equivalent to the EU regulations are the most appropriate instruments for the unification of private law in the context of regional economic integration.

Keywords: harmonization, unification, integration, economic cooperation, private law, international agreements, model legislation, regulation, directive, sovereignty.

DOI: 10.12737/16646

  Full text in Russian

Russian State University for the Humanities
6, Miusskaya ploshchad, Moscow, Russia, 125993
E-mail: stantim88@yandex.ru

This article examines the sources of law relating to the liability for the crime of aggression. Currently, international treaties make the main sources of responsibility for the international crimes. However, we should not neglect customary international law, which is the major source of public international law. The role of the customary international law in the development of international law has always been dominant. In accordance with customary international law the main international Conventions were adopted on the maintenance of peace and security. These international treaties are the Hague Conventions of 1899 and 1907, the Kellogg — Briand Pact of 1928; also the London conference of 1933, and the Nuremberg military Tribunal. Resultant was the definition of aggression laid down in the Resolution 3314 (XXIX) of the United Nations General Assembly on 14 th  December 1974. The International Court of Justice relies on said Resolution. However, the customary international law must be further developed since the crime of aggression can be committed by non-military methods.

Keywords: international custom, convention, source of law, aggression, international crime.

DOI: 10.12737/16647

  Full text in Russian