Contents of issue # 5/2015
Concept of Single Civil Procedure Code: Suggestions of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
Gabov А. V., Ganicheva E. S., Glazkova М. E., Zhuykov V. М., Kovtkov D. I., Lesnitskaya L. F., Marysheva N. I., Shelyutto М. L.
Gabov A. V., doctor of legal sciences
Ganicheva E. S., PhD in law
Glazkova M. E., PhD in law
Zhuykov V. M., doctor of legal sciences
Kovtkov D. I.
Lesnitskaya L. F., PhD in law
Marysheva N. I., doctor of legal sciences
Shelyutto M. L., PhD in law
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: civil@izak.ru
This publication is the result of collective discussion at the Institute of Legislation and Comparative Law under the Government of the Russian Federation of the Concept of a common code of civil procedure adopted in 2014. The article deals with the problem of harmonization of legislation governing the consideration of the various categories of cases within the jurisdiction of the courts of general jurisdiction and arbitration courts. Particular attention is paid to the problems of access to justice, coordination of legislative activity, taking into account the future prospects of unification of the rules and institutions governing the procedural arrangements of civil, administrative and criminal proceedings. The article describes the objective relationship between the development of an of procedural law and the law on the judicial system, which must be taken into account when solving problems to ensure the effective operation of the courts at all stages of trial and in all judicial instances. Certain problems that arose after the unification of the higher judiciary authorities are reviewed, recommendations aimed at improving the structure and organizational forms of the Supreme Court of the Russian Federation are given.
Keywords: civil procedural law, arbitration procedural law, civil justice, the types of civil proceedings, special proceedings, administrative proceedings, access to justice, an oral order of cases trial, evidence and proof, the unification of procedural law, the appellate court acts verification, the appeal proceedings, the supervisory review.
DOI: 10.12737/10714
Positive Modifications in Law
S. B. Nanba, A. E. Pomazanskiy, F. V. Tsomartova
S. B. Nanba, PhD in law
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: const@izak.ru
A. E. Pomazanskiy, PhD in law
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: const@izak.ru
F. V. Tsomartova
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: social@izak.ru
The article aims to identify the positive potential of the deviations in law. The authors explore issues related to the definition and essence of positive deviations in law, identification of causes, factors and conditions of their occurrence, elaboration on mechanisms for the development of positive deviations in law; identification of the consequences of such deviations. Special attention is given to self-regulation and civil initiatives as the favourable environment for the emergence of positive deviations in law and legal technologies of registering such deviations. The authors emphasize the interrelationship between the legal models and legal deviations. Their coexistence is inevitable, they are inextricably linked, and only their combined study is able to explain the processes of interest. Positive deviations in law are not per se, but only from the point of view of the given legal models. The recognition of deviations as positive depends on the assessment of the relevant legal model. The authors offer their own definition of positive deviations in law as the stable displacement of means of legal regulation from regulatory purposes, which resulted in unforeseen socially useful results. The authors conclude that positive deviations in law facilitate the selection of variants of lawful behavior and legal discretion, and are a source of lawmaking, as well as they promote correction of archaic legal models or creation of new ones.
Keywords: positive deviations in law, legal modeling, self-regulation, civil initiatives, legal monitoring, regulatory impact assessment.
DOI: 10.12737/10716
Subject of Law: Sociologist’s Opinion
Khlopaeva N. A.
Khlopaeva N. A., PhD in social sciences
The State Duma of the Russian Federation
1, Okhotny Ryad, Moscow, 103265, Russia
E-mail: hlopaeva@gmail.com
This article reviews the behavioral aspect of law as one of core factors of laws’ efficiency. In order to overcome gaps between law-making, legal consciousness and law enforcement, the author suggests investigating motives of the subject’s choice of this or that strategy for its legal status’ enforcement. On the basis of general scientific cognitive methods such as comparison method, historical method, analysis and synthesis methods, the author offers her own model typology through which the subject of law enforces its status. Factors of efficient enforcement of a government employee’s status are considered in the context of the administrative reform, as well as the global tendency to transition to the concept of a service-oriented state. The author identifies ways of overcoming restrictions in the process of assimilation of management concepts and technologies from business into the state management sphere. The author suggests expanding the list of government employees’ performance indicators through the inclusion of qualitative criteria, as well as through implementation of relevant educational programs.
Keywords: sociology of law, subject of law, legal status, types of social behavior.
DOI: 10.12737/10718
Co-Management by Indigenous Minorities of the North over Arctic Territories in the Period of Their Commercial Development
G. N. Chebotarev, E. F. Gladun
G. N. Chebotarev, doctor of legal sciences, professor
Tyumen State University
10, Semakova st., Tyumen, 625003, Russia
E-mail: chebotarev@utmn.ru
E. F. Gladun, PhD in law, associate professor
Tyumen State University
10, Semakova st., Tyumen, 625003, Russia
E-mail: efgladun@yandex.ru
The authors explain the significance of the presented subject by the current intensive industrial development of the Arctic territories of the Russian Federation and other Northern countries, which apart from positive economic and social benefits, also brings climate change, environmental problems and destroys traditional lifestyle and economy management of indigenous minorities of the North. The article proves that in many countries indigenous minorities of the North are interested not only in enforcement and guarantees of their rights on the part of the state, but also in making managerial decisions on the use and protection of territories which is the traditional place of their inhabitance and economic activity, together with government authorities and resource-users. The authors view co-management as an efficient model of interrelations between the state, local self-government and indigenous minorities of the North. The authors analyze international rules, foreign laws and regulations, and legislation of the Russian Federation that create legal framework for the implementation of the co-management model in the Arctic territories of Russia. In their article the authors indicate gaps in federal legislation in the area of protection of the Northern indigenous peoples’ rights to govern the territories of their traditional inhabitance and economic activity. In the end the authors state the possibilities to fill the gaps in the federal and regional legislation on the indigenous minorities’ rights, in particular, they suggest approving and ratifying international documents on indigenous peoples, including co-management norms, into the RF legislation, and also expanding possibilities of government and local authorities on indigenous minorities’ involvement into management over the Northern territories.
Keywords: indigenous minorities of the North, Arctic, territories of traditional lifestyle, co-management by the state and indigenous peoples, legal mechanisms of co-management.
DOI: 10.12737/10719
Set of Criteria for Determining Non-Pecuniary Damage Compensation as Remedy for Civil, Family and Labor Rights of Citizens
M. N. Maleina
doctor of legal sciences
Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, 123995, Russia
E-mail: aspirantstudent@yandex.ru
The article justifies the system of criteria, on the basis of which the compensation amount for non-property damage shall be determined. There are highlighted some common criteria applied in case of violation of any civil, family or labor rights; particular criteria used in violation of specific subjective rights, and the criteria for reducing and increasing the amount of non-property damage. Common grounds of increase of the amount of compensation are proposed as followers: causing both moral and physical damage by violation the same non-property right; causing non-pecuniary damage in connection with the simultaneous violation of several non-property rights. The author proves the necessity of introducing in the law such common grounds of reducing of the amount of compensation as: form and degree of fault of the victim; financial situation of a tortfeasor — citizen; expiration of a long period of time after the occurrence of damage and under certain conditions; voluntary taking actions by a tortfeasor to mitigate the effects of non-pecuniary damage caused before filing a suit. It is considered by the author to be fair to protect the interests of victims by establishing in law the minimum amount of compensation for non-pecuniary damage, linking it with the fold of the minimum wage.
Keywords: non-property damage, physical and mental suffering, compensation for moral damage, remedy, determining the amount of compensation, life, health, intangible benefit, honor, privacy, integrity of personal freedom, individualization, copyrights, consumer rights, employee rights.
DOI: 10.12737/10721
Legal Regulation of Adjudication in Civil Code of the Russian Federation (Issues of Conflict Rules)
T. P. Lazareva
PhD in law
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: pil@izak.ru
The article deals with conflict of laws regulation of transfer of creditor’s rights to another person (assignment of claims (cessions) and transfer of rights under the law) in terms of amendments to Part III of the Civil Code of the Russian Federation. The author notes that though amendments to the separate article on cession are not fundamental, the amendments of other articles of the Civil Code of the Russian Federation, concerning contractual obligations, do influence regulation of relations between the parties in assignment. The article pays special attention to the new conflict of law rule regulating the transfer of the creditor’s rights under the law. Relevant court practice is analyzed. On the basis of comparing legislations of specific countries, as well as norms of EC No. 593/2008 (‘‘Rome I’’) Regulation and EC No. 864/2007 (‘‘Rome II’’) Regulation the author draws the conclusion that despite some differences in conflict of laws regulation of the transfer of the creditor’s rights, in general the Russian rules comply with modern trends in private international law in the majority of European countries.
Keywords: transfer of the creditor’s rights, assignment of a claim, transfer of the creditor’s rights under the law, conflict of law regulation.
DOI: 10.12737/10722
Institute of Criminal Records and its Legal Consequences
A. A. Gravina, N. M. Кhromova
A. A. Gravina, PhD in law
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
N. M. Кhromova
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: hromova-nm@yandex.ru
In their research dedicated to the criminal conviction institute and its legal consequences, the authors consider it not only as a criminal legal category but also as a general legal concept. For this purpose the authors analyze the legal nature of conviction and its consequences as a criminal legal category as well as the impact of these consequences on general civil relations, in particular, on labor relations. The authors also investigate the issue of consequences after expunging or cancellation of conviction. They analyze the current Russian law on legal restrictions relating to expunging or cancellation of conviction. On the basis of this analysis the authors draw the conclusion on ambiguity of the imposed restrictions after expunging or cancellation of a conviction and on the occurring conflict of law. For readers’ reference the authors analyze legal initiatives of representatives to State Duma of the Federal Assembly of Russian Federation as well as opinions of competent state authorities in charge of this issue.
Keywords: conviction, criminal legal category, general law category, legal consequences, legal positions, conflict.
DOI: 10.12737/10723
On the Issue of Responsibility for Money or Other Property Laundering
A. A. Kharlamova
PhD in law
Ural Law Institute of the Ministry of Internal Affairs of the Russian Federation
66, Korepina st., Yekaterinburg, 620057, Russia
E-mail: 9122020@mail.ru
The article deals with the essence of legalization (laundering) of money or other property acquired through commission of crimes. The author analyzes the existing language of the object of legalization in the Russian criminal law, including their contents and the relationship inter se and with other categories, the impact of the legislator’s concepts on criminal and legal assessment of socially dangerous acts. The author focuses on the changes to the Criminal Code of the Russian Federation introduced in connection with tightening of measures on anti-money laundering, and their implications for the application of criminal law institutions. On the basis of the study of specific judicial decisions and preliminary investigation files the author explores controversial questions of crime classification envisaged by Art. 174 and 1741 of the Criminal Code of the Russian Federation.
Keywords: money laundering, legalization (laundering) classification, object of legalization, responsibility for legalization (laundering).
DOI: 10.12737/10725
Legal Structure of Budget Immunity: Theoretic and Legal Analysis
N. A. Povetkina
PhD in law, associate professor
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: pna127@mail.ru
The article presents theoretical and legal analysis of the concept of “immunity of the budget”. The article notes the role and importance of immunity of the budget as special legal structure to ensure compliance by the state with all assumed financial obligations, fulfilled at the expense of the budgets of the RF budget system. Diversity and ambiguousness of understanding the category of immunity in science are pointed out. Various concepts of immunity both in general legal and industry-specific format are analyzed. The author concludes that, despite the fact that the immunity of the budget does not possess all the attributes of legal immunities, it can be referred to as such, but with specific features. The article defines the purpose, functions and characteristics of the budget immunity. The author provides an original definition of the “immunity of budget” concept as a legal regime that does not permit mandatory recovery proceedings at the expense of budgets from the budgetary system of the Russian Federation.
Keywords: budget immunity, legal regime, purpose and functions of immunity of budget, characteristics of budget immunity.
DOI: 10.12737/10726
On Economic Analysis Theory in Fiscal Law (Conceptual Framework)
I. A. Khavanova
PhD in law
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: fin@izak.ru
The article is devoted to economic analysis’ conceptual framework in the tax law. The author examines modern aspects of the correlation between Law and Economics, the content of the principle of the economic basis for tax, expresses her opinion on the matter of the possibility to verify the economic feasibility of taxes and fees in the context of constitutional proceedings. Special attention is attributed to the issues of application of economic analysis’ methodological tools in tax law. In 2012, while considering tax disputes arbitration courts focused on the application of economic analysis. Based on the analysis of law enforcement practice, the author identifies problematic issues in the use of economic analysis in the tax law interpretation, defines the scope of economic analysis and its specific features. The article introduces concepts of “economic and legal impact area” and “economic and legal impact coverage area”, identifies their characteristics and specific features of a regulatory nature.
Keywords: economic analysis, tax law, economics, efficiency, tax disputes.
DOI: 10.12737/10727
Diffusion in Law as Trend for Private International Law Unification: To the Issue of Data Protection Law Object
N. G. Doronina
doctor of legal sciences
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: office2@izak.ru
Foreign law can be an important object of informational legal relations. Different states compose unified registers of legislative acts. In the long run creation of national information resources on the basis of the current legislation contributes to interpenetration of legal norms into foreign legal systems. In the age of globalization cooperation between states on a contractual basis opens large-scale prospects for establishing business and other contacts between citizens and legal entities of different state affiliations. But the use of this method of law unification faces difficulties related to implementation of the international treaties’ norms into the national legal system. Also difficulties stem from the fact that after implementation into the national legal system international treaties’ norms do not have a uniform interpretation. Due to the existence of the problems in unification of law through international treaties other ways of unification of law of various states are being explored. Diffusion in law, based on the penetration of foreign law norms into the national legal system is one of such ways. The way of diffusion in law envisages the application of unified categories of institutes and legal rules enacted in this or that state as the most efficient legal norms, institutes. This way of unification of law gains more and more recognition due to the fact that it does not face the problems characteristic for unification of law through international-treaties, but accomplishes the same goals Tire ensures harmonious interaction between various legal systems in law.
Keywords: information law, private international law, unification and harmonization of law, characterization and diffusion of law, the Bustamante Code, principles of the law, information technologies, systematization of legislation, registries of normative acts.
DOI: 10.12737/10728
Globalization of International Economic Relations, Information Technologies and Move to a New Level of Diffusion in Law
N. G. Semilyutina
doctor of legal sciences
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
E-mail: foreign3@izak.ru
Globalization of international economic relations directly depends on the level of information technologies’ development. At present the development of information law has created favourable conditions for interpenetration of the rules of foreign law. This penetration is called diffusion in law. The article investigates the aspect of interpenetration of legal ideas and decisions through contracts concluded by participants in civil law relations. In business relations’ practice, parties frequently borrow not only legal language, but also legal structures from foreign contract forms. In case of a conflict situation there arises a problem of interpretation of th elegal formula which the parties have imported from a foreign law and copied in their contractual relations. Traditional approach assumes that a court, when interpreting contractual provisions, even imported from a foreign law, follows its law, i.e. lex fori. Development of international relations demonstrates imperfection of such approach, since such approach does not allow identifying the parties’ true intentions while concluding the contract. Development of international relations, amplification of economic relations results in the fact that the parties increasingly use international structures in their practice. For example, UNIDROIT Principles, to which the parties may refer in their contracts. But other states also use the UNIDROIT Principles and include them into their most recent codification. In such a way there appears “grass-root diffusion”, i.e. through the development of private contractions relations.
Keywords: contract law, contractual relations, private international law, classification in private international law, the UNIDROIT Principles 2010, unification.
DOI: 10.12737/10729
