Contents of issue # 8/2018

Russian Legislative Tradition: Ontology of the Process  Pdf 16


leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

The article formulates and justifies the notion of legislative tradition. It is noted that for the analysis of legislative traditions the same conceptual approaches as for the legal tradition as a whole are applied. Among them, the author highlights the following: the legal tradition is largely irrational, so it can not be investigated solely within the framework of materialistic methodology; legal tradition is inseparably linked with the subject of law, which by its actions embodies the rule of law in life; legal tradition is dialogical, it exists only because there are other, different from her tradition. The article shows the peculiarities of Russian law-making traditions in historical retrospect. Among the factors determining the peculiarities of the Russian legislative tradition, the author highlights the following: features of the historical fate of the country and the people living on its territory; model of the relationship between power and society; the dominant forms and methods of state power; the existing hierarchy of sources of law; the relationship of law with other social regulators, primarily, morality and religion. The article deals with the author's periodization of the formation of domestic law-making traditions, within the framework of which there are six main stages. The peculiarities of each stage in relation to the legislative process are revealed. According to the author, the most important stages for the formation of Russian legislative traditions were those that can be combined within the period of the Russian Empire. During this period, such legislative traditions as the leading role of the government in matters of legislative initiative, large-scale borrowing of foreign legislation, the desire to systematize and codify the legislative array were formed and manifested.

Keywords: legal tradition, legislative tradition, Russian Empire, law, legislation, systematization of legislation.

DOI: 10.12737/art_2018_8_1

Adobe pdf 24  Full text in Russian

Principles of Law in the Doctrines and Legislation of Countries of the Continental Legal Family  Pdf 16


Minister of Justice of the Russian Federation, candidate of legal sciences
14, Zhitnaya st., Moscow, Russia, 119991

The principles of law, enshrined in legislation, guide law enforcement to the correct definition of goals and objectives of legal regulation. At the same time, these norms do not restrict the list of principles of law. Many of them follow from the sense of justice and are reflected directly or indirectly in law enforcement acts. Their understanding and perception by society is based on legal awareness, legal culture, legal understanding and the prevailing dogma of law. In the Russian Federation, a great contribution to the development of the principles of law is made by the courts, in particular the Constitutional Court of the Russian Federation, which discloses in its resolutions the content of the principles of law. The article attempts to define the basic principles of the law of the continental legal family, which developed together with the society in the course of the historical process, and they got the generally accepted meaning. The principles of law, enshrined in the constitutions of individual countries, as well as the approaches to their interpretation by national courts, endowed with the corresponding powers, are examined. The study aims to predict the possible ways of developing the rights of the countries of the continental legal family as the most suitable for using the comparative legal method in connection with their proximity to the legal system of the Russian Federation. It is substantiated that the legislation and judicial practice should be developed taking into account the global trends that largely stem from the interpretation of the principles of law in states with a similar legal system. The application of the principles of law in the European Union is analyzed, within a framework of which the significance of the legal approaches of the continental legal family is growing, mostly because of the withdrawal of the UK from the EU.

Keywords: doctrine, principles of law, legality, justice, continental legal system.

DOI: 10.12737/art_2018_8_2

Adobe pdf 24  Full text in Russian

Legal Forecasting as Factor of Improvement of the Russian Legal System  Pdf 16


 senior research fellow of the Institute of State and Law of the Russian Academy of Sciences, candidate of legal sciences, associate professor
10, Znamenka, Moscow, Russia, 119019

The relevance of a research of a perspective of legal forecasting is defined by strengthening of impact of scientific planning on acceleration of social and economic development of the country. In the article the methodological questions of legal forecasting consisting in definition of a concept, the sphere, types, levels, stages of legal forecasting, a ratio of theoretical and empirical levels of knowledge of process of legal forecasting, the principles of legal forecasting, justification of need of introduction in legislative process as its scientific basis of a predictive stage without which high-quality and effective lawmaking, justification of value of forecasting of legal behavior as the most important practical function of the theory and sociology of the right is impossible are investigated. Research methods: a system and structural method, an ascension method from abstract to concrete, historical, logical methods, an analogy method, a method of comparative jurisprudence, a legallistic method, the content analysis, legal modeling, an extrapolation method. Short conclusions: legal forecasting is a self-regulating part (a through element) of the legal system defining her monitoring - continuous process of observation of parameters of the legal phenomena and processes in comparison to their due state for the purpose of fixing positive and depersonalizations of negative tendencies in the legal sphere. Improvement of the regulatory base of regulation of the public relations is a prerequisite and the actual material of formation of predictive estimates of development of all legal system. Before intruding in regulation of the public relations, the legislator has to simulate as far as it will be effective. The legal system is designed not only to close gaps in regulation of the public relations and to eliminate defects of the existing regulations, but also to develop the rates advancing in relation to public processes. Anticipation of new spheres of legal regulation, forecasting of their formation and evolution, planning on this principles of the legislation on the next, medium-term and long-term prospects, - in it an essence of predictive and regulatory function of the right.

Keywords: legal forecasting, levels of legal forecasting, tendency and prospect of development of the legal phenomena and processes, regulatory and post-regulatory control, predictive stage of lawmaking, forecasting of legal behavior.

DOI: 10.12737/art_2018_8_3

Adobe pdf 24  Full text in Russian

The Implementation of the Law-Making Initiative on the Local Level  Pdf 16


leading research fellow of the Department of constitutional law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

The article is devoted to the implementation of law-making initiative on the local level. It is emphasized that this democratic institution is tackling the one of the main tasks of municipal reform - approach of the population to the local power. The article analyzes the content of various municipal legal acts regulating various procedural aspects of law-making initiative. The special attention is paid to the substantive content of law-making initiative. The practice of municipalities on this issue demonstrates different approaches to the definition of the substantive content of law-making initiative. The most common is the approach of determining the range of matters constituting the law-making initiative. In most cases, it is limited by matters of local significance. The author notes that the main problem of legal regulation of procedures for law-making initiative is the establishment of excessive, not due to the legal nature of local self-government, requirements that are overly complicating the process of its implementation. These requirements can relate both to the process of its implementation and to the grounds for its rejection by municipal authorities. The author states that, in principle, for giving the law-making initiative practical significance in the relevant municipal legal acts it should be provided for detailed regulation of the responsibilities of the local self-government bodies, as well as the rights of representatives of the initiative groups and the mechanism of their interaction, while simplifying requirements for the duties of the initiators. It is noted that the creation of appropriate legal mechanisms is a necessary but not sufficient condition for full realization of this democratic institution. In this regard, the author concludes that the focus in the improvement of this form of municipal democracy should be given to the interaction between the municipal authorities and citizens in order to develop a clear and understandable sequence of actions for the implementation of their legislative initiatives.

Keywords: local self-government, law-making initiative, popular sovereignty, local self-government bodies, municipal normative legal acts.

DOI: 10.12737/art_2018_8_4

Adobe pdf 24  Full text in Russian

Mixed-Member Proportional Representation: Main Characteristics New Content  Pdf 16


associate professor at the Department of constitutional and municipal law of the Kuban State University, candidate of legal sciences, associate professor
149, Stavropolskaya st., Krasnodar, Russia, 350040

The article is devoted to the analysis of federal and regional legislation that establishes the procedure for applying a mixed electoral system in the election of deputies of legislative bodies of state power and representative bodies of local self-government. The order of application of “closed” lists of candidates with division into regional groups corresponding to the territories of majority districts is analyzed. The author comes to the conclusion that one of the features of the last variation of the mixed system applied at the regional elections is the establishment of territorial unity of a part of the region-wide electoral district, according to which the elections are held according to a proportional system, with the corresponding single-mandate majority district. The division of the proportional list into regional groups strengthens the influence of the voters' voting on the mechanism for allocating mandates within the list. Absolute will of the party when forming a proportional list is still dominant, however, the distribution of mandates depends not on the sequence of location of candidates in it, but on the voting of voters. The author states that the models of the mixed electoral system currently applied in Russia are justifiably criticized as not taking into account all the votes cast in aggregate for both majority candidates and for proportional lists, in connection with which some of the votes are “lost”. A small number of mandates distributed within the proportional system leads to a distortion of proportional representation. The article analyzes the features of reassuring party documents, informing voters, preparing bulletins, pre-election campaigning of parties, distribution of deputy mandates in a mixed electoral system. Analysis of law enforcement practice leads to the conclusion that the use of a mixed system may provide for a wider range of interaction of its proportional and majority elements. Taking into account the need to implement the responsibility of elected deputies, the use of the recall institute, the optimization of the number of deputies elected by majority constituencies and in proportional lists, proposals are made to further improve the electoral legislation.

Keywords: electoral system, proportional lists, majority districts, proportional representation, regional groups, recall institute.

DOI: 10.12737/art_2018_8_5

Adobe pdf 24  Full text in Russian

Subjective Civil Law and other Manifestations of Will and Interest in the Activities of Legal Entities  Pdf 16


head of the Department of civil law and corporate studies of the Russian State University of Justice, doctor of legal sciences, professor, honored scientist of the Russian Federation, academician of the Russian Academy of Natural Sciences
69, Novocheremushkinskaya st., Moscow, Russia, 117418

The basic starting point, which expresses the essence of law as a special social phenomenon, is human rights, the individual, his/her attitude to the state. The provisions of the Article 2 of the RF Constitution cannot be called an ordinary legal relationship, the relationship of a person and a citizen with the state is the starting point for the legal measurement of all social relations arising as a result of the of citizens’ and their associations’ activities. The purpose of this article is to show that consideration of subjective civil rights and obligations as elements of a legal relationship belittles their role as independent regulators of social relations, a legal category existing only in legal relations, even those, identified with the latter. The approach to subjective civil law as a self-sufficient legal category makes it possible to single out relations that are governed by law, but are not legal relationships, i.e. those or other manifestations of the will and interest of a person who do not receive full expression in subjective civil rights and obligations, but are expressed only in the connectedness, affiliation of persons. Interconnectedness is not a legal relationship, because their participants do not have pre-established civil rights and obligations, and they can arise in the event of circumstances specified in the law. The type of cohesion between persons is incomplete composition of civil rights and duties, i. e. parts, elements of subjective civil law (consent to the transaction, the right of pre-emption, the decision of the commercial entity’s general meeting to commit a major transaction or transaction in which there is interest). Corporate rights and obligations of participants, being a transformed form of civil rights and obligations of a legal entity, do not have their complete individualization, since their implementation is possible with the participation of other participants in the corporation, and the rights themselves become duties in certain cases. The approach set forth in the article makes it possible to consider subjective civil law as a self-sufficient one, as a rule, preceding the legal relationship and having in some cases a complex composition consisting of separate elements.

Keywords: constitutional provisions, sectoral norms of law, absolute law, subjective civil law, civil duty, legal relations, civil-law consequences, parts, elements of subjective civil law, digital rights, affinity of persons (affiliation), corporate rights and obligations of corporation participants, consent to the transaction.

DOI: 10.12737/art_2018_8_6

Adobe pdf 24  Full text in Russian

The Rights of Prior and Posterior Use as the Limitation on Exclusive Rights  Pdf 16


postgraduate student at the Department of civil law and procedure of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

This article discusses the exceptions to copyright infringement of the author’s exclusive rights, in particular the prior and posterior user rights. This article considers national and international regulatory frameworks and case law. The methodology is determined by the specifics of the chosen subject and includes a set of general scientific methods (analysis, synthesis, comparison). The key findings are: all rights has limitations, especially considering intellectual property rights, implying a balance between the rights of patent holders and the legitimate interests of third parties. The purpose of such balance in relation to the right of prior use is to protect the rights of third parties who independently used the invention prior to the priority date of the patent application. At the national level, countries independently determine the regulatory regime of the prior and posterior user rights. The countries of the Romano-German legal system (Germany, France) consider the right of prior use primarily as a personal right, the countries of the Anglo-Saxon legal family, primarily the United States, consider it as a means of protection in violation of the exclusive rights of the patent holder. The right of prior use in the Russian Federation is an independent right of the prior user expressed in the possibility of using the identical decision in a certain amount without any extension, which presupposes the possibility of applying to the court for the establishment of the prior user right. The prior and posterior user rights in the institute of intellectual property have similarities to servitude as encumbrance of property rights and are considered by the author as encumbrance, rather than limitation of exclusive rights.

Keywords: patent law, exclusive rights, property rights, intellectual property, limitations of rights, encumbrance of rights, prior user rights, posterior user rights, easement.

DOI: 10.12737/art_2018_8_7

Adobe pdf 24  Full text in Russian

Financial Risks in the Budgetary Sphere: Doctrinal Understanding of Essence and Species Diversity  Pdf 16


head of the Department of administrative and financial law of the Novosibirsk National Research State University, doctor of legal sciences, professor
2, Pirogova st., Novosibirsk, Russia, 630090

Analyzing the legislative and doctrinal understanding of the budgetary sphere as one of the central spheres of the public finance, which is simultaneously a source of financial risks (the risks of the public financial security and the object of the impact of internal and external risks), the goal is to formulate the legal content of the concept of risks in the budgetary sphere, using general and specific scientific methods of cognition, to identify the essential features of the last one, which determine the formation of risks. The goal is also to consider their species diversity. The conducted research allows identification of risks in the budgetary sphere as a legal category and as the probability of occurrence of factors (events, acts) that affect the deviation of actual budget indicators from planned ones, as well as the non-fulfilment or improper execution of budgetary procedures established in the budget process. Classification series of risks in the budgetary sphere can be formed depending on the essential characteristics of the budgetary sphere (the risks of the budget system, differing in its levels and structural characteristics of the budget, and the risks of the budget process, which differ in its stages), on the legal nature of the relations emerging in it (the risks of property relations and the risks of administrative and management relations), on the legal form of relations (the risks of monetary liabilities and the risks of monetary obligations), on external expression (quantitative, measured in monetary terms, and qualitative, expressed in violation of budgetary procedures).

Keywords: financial sector, budgetary sphere, budget system, financial risks, financial security, financial stability.

DOI: 10.12737/art_2018_8_8

Adobe pdf 24  Full text in Russian

The Principle of Balance between Private and Public Interests and Legislative Regulation in Tax Matter  Pdf 16


leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

The implementation of experimental regulation substantially distorts the implementation of the principles of tax law, including the balance of private and public interests. It increases the risks of reducing sustainability in the public sector. Pilot projects, pilot regimes and experimental regulation in taxation are being increasingly used. The study of approaches to the legislative regulation of these processes, both in the Russian Federation and in foreign countries, is becoming ever more urgent. The purpose of the study is to identify the legal nature of experimental regulation in the tax sphere. The objectives are to analyze the regulatory framework of experimental regulation, including legislation and regulatory legal acts of the Russian Federation, its constituent entities, municipalities; to study doctrinal approaches, as well as foreign experience in the sphere under consideration; to make a distinction between this experimental regulation and other types of legal regulation in the field of taxation; to develop proposals for improving legislation. The methods of analysis and synthesis and comparative law are used to investigate the problems. General theoretical and branch approaches to experimental regulation, federal, regional and municipal experience, as well as legislation and the doctrine of foreign countries are analyzed in the article. Experimental regulation is classified as a kind of temporary measure with specific goals, scope and content. Its enforcing is delimitated from the staged entry into force of legal rules, i. e. pilot regulation. It was concluded that experimental regulation should be applied in the tax sphere as an exception, and it can’t cover the principles of tax law. The conduct of experiments in the tax sphere should be primarily formalized in the form of a legislative act (normative legal act of a representative body) in order to achieve a balance between private and public interests. The act should determine the objectives, duration, procedure and timing of summing up the results, the publication of the results, the basis and procedure for participation and withdrawal from the membership of the participants, as well as the relevant legal consequences. It’s proposed to consolidate the basic provisions on experimental regulation in the tax sphere in the Tax Code of Russia in order to create guarantees for the rights and legitimate interests of person.

Keywords: tax, legal system, experimental regulation in the tax sphere, pilot projects in the tax sphere, staged entry into force of legal rules, tax experiment, principles of tax law, the principle of the balance of public and private interests, the principle of equality.

DOI: 10.12737/art_2018_8_9

Adobe pdf 24  Full text in Russian

The Concept of Complicity: Theoretical Background and Legal Formalisation  Pdf 16


head of the Criminal-Law Research Department of the Russian State University of Justice, doctor of legal sciences, professor
69, Novocheremushkinskaya st., Moscow, Russia, 117418

Complicity in a crime is a traditional institute of the Russian Criminal Law. Throughout centuries of its legal history it has been accompanied by quite tense scholar discussions which could not be considered completely closed nowadays. This situation contributes to the unstable nature of law-making practice and leaves unsolved many practical issues of legal classification of crimes committed in complicity, which necessitates ordering the existing scholars’ views. By employing methods of scientific, dogmatic, comparative and historical analysis, as well as the analysis of the domestic courts’ practice, the author attempts to review the existing approaches to conspiracy, in order to determine the basic parameters of this concept in the current Russian legislation. As a result, a number of significant conclusions have been made, which help to assess adequately the grounds and limits of conspiracy and thus the basic principles of classification of crimes committed in conspiracy. A common ground, shared by most of the Russian criminal-law specialists today is that: conspiracy is a necessary component of Criminal Law’s structure and could not be taken out of it; conspiracy exists in relation to a crime, common to several jointly acting persons; limits of conspiracy are defined by the perception of possible culpability and a mode of person’s participation in a crime. At that, the starting point in the process of complicity construction is defined by the essential question of whether accomplices take part in “someone’s” crime or rather commit, along with an actual perpetrator, a common single crime. Modern Russian doctrine of complicity is based on the following points: accomplices take part in a crime common for them; possible modes of complicity are not limited by organisers, aiders and abettors and co-perpetrators; complicity can exist only with relation to intentional crimes. Along with that, a legal concept of complicity brings together basic principles of both the accessory theory of complicity and the theory of independent responsibility of accomplices. It is stated that, on the one hand, complicity could take place only where an act by a perpetrator takes place (accessory element). But this act does not in itself pre-determine the responsibility of accomplices, where every one is individually responsible.

Keywords: doctrine of complicity, accessory complicity, theory of independent responsibility of accomplices, basis of accomplices’ responsibility.

DOI: 10.12737/art_2018_8_10

Adobe pdf 24  Full text in Russian

Challenges to Combat Bullying: a Legislative Response  Pdf 16


leading research fellow of the Department of constitutional, administrative, criminal legislation and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

In accordance with the Concept for the development of the child neglect and juvenile delinquency prevention system for the period until 2020 in Russia, special antisocial actions such as intimidation, harassment of children by classmates, the spreading of a false, defamatory information in social networks; placement in the information and telecommunication network "Internet" of video clips with scenes of beatings, torture and other violent actions against young children and adolescents require special attention. Prevention of bullying in school has long been the subject of legislative process in foreign countries. Evaluation of such experience is also important for Russian legal science, especially since studies of this negative phenomenon and issues related to its prevention and overcoming in the Russian scientific literature are carried out mainly by specialists in the field of pedagogy, psychology or psychiatry. Using the historical and comparative legal method, the author analyzes the legislation and law enforcement practice of a number of foreign states (USA, United Kingdom, Philippines and Kazakhstan). According to the author a study of a sufficiently long legislative experience of other states in this area helps to understand the level of the problem and possible consequences of normative regulation. Although the approach to combating bullying in schools in these countries differs, it is important that the solution to this problem is raised to the legislative level and covers various ways of bullying, including cyberbullying, when the victim's humiliation (eg, anonymous threats, edited photos, revenge porn, etc.) is carried out via the Internet and mobile phones. The author believes that the absence of a legal definition of bullying makes it difficult to prevent violence in school. The prohibition of bullying in a separate law (or the law on education) will have an important preventive value.

Keywords: foreign laws against bullying, school bullying, cyberbullying, violence, intimidation, harassment, information in social networks.

DOI: 10.12737/art_2018_8_11

Adobe pdf 24  Full text in Russian

Implementation of the Judgements of the European Court of Human Right in the Context Criminal Procedural Law Development  Pdf 16


leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

The article focuses on the issues of implementation of the judgments of the European Court of Human Right in Russian criminal procedural law. It pays particular attention to judgements in which standards of fair trial in criminal procedures are developed. The author notes that although mentioned standards are mainly reflected in Russian legislation, however, their further implementation is clearly needed, which is confirmed by the number of rulings of the European Court of Human Rights in respect of Russia. As a research task the author made an attempt to analyze and assess the state and perspectives of implementation of European standards of fair trial in the amendment of criminal procedural law; provide science-based recommendations for improving their implementation process. A combination of methods of scientific knowledge, among which dialectical method occupies the foremost place, provided the methodological basis for this study. Philosophical, universal scientific research methods and special legal methods were also used. Special attention was given to comparative and systematic research methods. It is concluded, that European standards of fair trial serve as a key reference for national legislative development of criminal justice. It is therefore necessary to continue their further implementation, which requires joint efforts, firstly, of Russian legislator in part of timely amendment of national legal provisions and institutions, taking into account international obligations of Russia; secondly, of the Ministry of Justice in part of monitoring and supervision of law enforcement, execution of decisions adopted by the Constitutional Court of the Russian Federation and the European Court's judgments; thirdly, of the Supreme Court of the Russian Federation in part of control of proper fair trial standards application in the courts of general jurisdiction.

Keywords: the European Court of Human Rights, decree, criminal process, fair trial, independence of judges, standards, legislation, state, citizen.

DOI: 10.12737/art_2018_8_12

Adobe pdf 24  Full text in Russian

On Some Law Enforcement Issues Arising When the Procedural Status of a Participant in Criminal Proceedings Changes  Pdf 16


professor at the Kazan Law Institute of the Academy of the Prosecutor General's Office of the Russian Federation, candidate of legal sciences, associate professor
41, Moskovskaya st., Kazan, Russia, 420111

The article examines the problems that arise when the procedural status of participants in criminal proceedings changes in the light of the latest amendments in the domestic criminal procedural legislation. In the criminal procedure law there are new grounds and conditions for changing the procedural status, or existing rules of procedural production reflected in the decisions of the Constitutional Court of the Russian Federation are clothed in the form of laws. The absence of established investigative and judicial practice on these issues leads to the fact that law enforcement officials make different decisions on the same issues. The author insists that in case of violation of the constitutional rights of participants in criminal proceedings, when changing their procedural status, law enforcement should make decisions on recognizing evidence inadmissible. The article considers two cases of changing the procedural status of a participant in a criminal process. The first part of the article will deal with changing the status of a lawyer to a witness. The author draws attention to the increasing instances of giving evidence by lawyers not in the interests of his client in the absence of consent to this suspect (accused). This trend is linked to the adoption of the federal law of 17 April 2017, No. 73-FZ. The second part of the article refers to the change in the procedural status of the suspect (accused), in the event that a criminal case is set aside for him in a separate proceeding. With regard to the issue of interrogation of a person in respect of whom a criminal case was set aside for a separate proceeding and who was not provided with his right to participate in an advocate's free of charge in the main criminal case, we managed to find just one court decision to declare this interrogation inadmissible. In the investigation practice, the rights of these participants are not properly protected, lawyers are not provided for free, and these persons are questioned as witnesses, although their procedural status is not fully defined in the Criminal Procedure Code. It seems to us that no matter how this participant is named, he should be provided with a defender in the main criminal case. The investigator must also ensure his other constitutional rights in the proceedings on the main criminal case. The author emphasizes the importance of observing the constitutional rights of participants in criminal proceedings when their procedural status is changed.

Keywords: legal status, procedural status, participant in criminal proceedings, change in procedural status, pre-trial cooperation agreement, lawyer, witness, criminal case, commission of crime in complicity.

DOI: 10.12737/art_2018_8_13

Adobe pdf 24  Full text in Russian

Minimization and Prevention of Environmental-Legal Risks  Pdf 16


leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

This article analyzes the legal nature of environmental legal risks and their mitigation and prevention. Discusses the concept, types and characteristics of environmental-legal risks, the difference between the environmental and legal risks from environmental risks. The article analyzes the means of minimizing or preventing ecological and legal risks. Under the environmental and legal risk arising in the sphere of nature, we can understand the likelihood of any negative legal consequences for the legal entity in the process of planning and implementing economic activities in the sphere of nature. The environmental-legal risks can be classified as: the involvement of legal liability for committing environmental offenses; receipt of a negative conclusion of the state ecological examination; refusal to issue permits; suspension or termination of the right of nature; compensation for environmental damage; the prohibition of business activities; withdrawal of the land plot. Environmental-legal risks are proposed to differentiate the risks arising in the sphere of economic activity in the process of environmental management, and environmental and legal risks associated with the development of projects of normative legal acts in the field of environmental protection and natural resource management. The article discusses means of minimizing and preventing environmental-legal risks arising in the sphere of economic activity in the process of environmental management, such as assessment of environmental impact, public ecological expertise, ecological audit, ecological insurance. The minimization and prevention of the environmental and legal risks arising from the development of projects of normative legal acts in the field of environmental protection and natural resource management can be referred to the legal examination of drafts of regulatory legal acts, anti-corruption expertise, the procedure of regulatory impact assessment, public discussion of draft laws in the Public chamber of the Russian Federation.

Keywords: environmental protection, legal uncertainty, environmental and legal risk, legal risk, risk minimization, environmental auditing, environmental insurance.

DOI: 10.12737/art_2018_8_14

Adobe pdf 24  Full text in Russian

Concept and Features of the Land Plot as Object of the Civil Rights  Pdf 16


first deputy Chairman of the Moscow regional Duma
72, Mira ave., Moscow, Russia, 129063

The article analyzes the definition of the land plot’s concept as an object of ownership, contained in the Land Code of the Russian Federation. Proceeding from a literal interpretation of this Code’s norms, it follows that land legislation, as well as civil law, includes land plots to real estate objects, qualifying them as an individually defined thing. However, is the approach of the legislator justified in a view of exception of the land plot concept as an object of land legal relations from the special codified act, and does it includes the concept of land as an object of ownership? To answer this question the author analyzes the relations regulated by the land and civil legislation, as well as the objects of land and civil legal relations. The article notes that many norms of the Land Code do not have a direct relationship to land regulation, and in their legal nature have a civil-law character. In the author's opinion, such an approach of the legislator in regulating property relations, arising in connection with the ownership, use and disposal of land plots, as well as in dealing with them, is erroneous. As a result, the article concludes that the absence of a clear distinction between public relations, constituting the subject of regulation of land and civil legislation, leads to duplication of norms within various branches of law and numerous conflicts of the current legislation. Special attention is paid to the characteristics of a land plot as an object of civil rights, on the basis of which the author offers his own definition of the of land plot concept as an object of civil rights.

Keywords: land legislation, civil legislation, land plot, land, objects of civil rights, real estate.

DOI: 10.12737/art_2018_8_15

Adobe pdf 24  Full text in Russian

Competitive Law: Results of the Discussion and the Decision of the Russian High Attestation Commission’s Presidium  Pdf 16


E. Yu. GRACHEVA, head of the Department of financial law, first vice-principal of the Kutafin Moscow State Law University, chairman of the Expert Council of the High Attestation Commission of the Russian Federation, doctor of legal sciences, professor
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123286

N. A. VLASENKO, chief research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, professor at the Peoples’ Friendship University of Russia, expert of the High Attestation Commission of the Russian Federation, doctor of legal sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

The authors inform about the results of the discussion on the independence of competition law as a legal branch and its consolidation in the Nomenclature of Scientific Specialties in Law, which provides for the academic degrees conferment. The Presidium of the High Attestation Commission of the Russian Federation decided not to single out the competition law as a separate scientific specialty in jurisprudence, but to supplement the scientific specialty 12.00.07 — corporate law, energy law — with competition law. Thus, it was proposed to the Ministry of Education and Science of the Russian Federation to amend the Order from October 23, 2017 No. 1027 “On Approval of the Nomenclature of Scientific Specialties, According to which academic degrees are recognized” (registered in the Ministry of Justice on November 20, 2017, No. 48962) in the specialty 12.00.07 corporate law; energy law. The scientific specialty should be called: 12.00.07 corporate law; competition law; energy law. It is also recommended to make corresponding amendments to the passport of scientific specialties on the law.

Keywords: antimonopoly legislation, market competition, single economic space, competition of goods, competition of services, free movement of goods, nomenclature of scientific specialties in jurisprudence, passport of scientific specialties on the law.

DOI: 10.12737/art_2018_8_16

Adobe pdf 24  Full text in Russian

Legal Support for Complex Development of Territories  Pdf 16


Contents of issues: