V. N. Sinyukov
Kutafin Moscow State Law University, Moscow 125993, Russian Federation
In 2019 the professional community has celebrated the 95th Birth Anniversary of the outstanding Soviet and Russian legal theorist S. S. Alekseev. The article considers some aspects of its theoretical heritage in the context of the modern development stage in science and practice of regulation. The author focuses readers' attention on those aspects of his doctrine, which contributes to a new understanding of the current issues attributed to modern legal regulation without setting the task to analyze systematically his creative heritage. The article contains an assessment of the Soviet development stage of the theory of law, argues its irreducibility to the prevailing Marxist ideology at that time. It is concluded that the national legal ideology is not equivalent to the political and economic views that prevail in society at various stages of its history.
The S. S. Alekseev's cognitive mission in the theory of law is transmission of the domestic theory of law from the pre-revolutionary to the modern stage of social development. In a global sense, S. S. Alekseev's theory of law substantiates the independent place and role of Russia and Eastern European countries on the legal map of the world. It also attempts to eliminate the former socialist legal family as only a political and not a right-cultural phenomenon and scientifically untenable. Alekseevtheorist created the doctrine not only of law as an idea in his universal understanding, but also of national law, historical and geographical law, Eastern European and Eurasian cultural area. The doctrinal conceptualization of domestic legal thinking occurred in the Soviet period and this historical result of the development of domestic law was largely summed up by S. S. Alekseev.
The importance of Alekseev's ideas for achieving the conceptual integrity of the Russian law and order is shown. The role of the category of the mechanism in legal regulation as a theoretical concept of Russian law, different from the Western European legal tradition, is revealed. The author shows the originality of the mechanism in legal regulation design as a combination of philosophical-sociological and special-legal angles as a view on the law. The article analyzes Alekseev's perspective ideas of the theory of law, in particular the legal influence mechanism, legal regulation limits, general prohibitions and permissions and nature of legal normativity. Alekseev's legacy plays an important heuristic role in the internal reception of the national law school in the following areas: philosophical and interdisciplinary development of legal methodology; Genesis of a new legal objectivity; search for an actual legal paradigm; creation of a modern legal language.
S. S. Alekseev, Soviet law school, law, legal regulation, Russian legal system, socialist legal family, domestic tradition of law, European law, Constitution, norms of law, legal relations, acts of realization of law, mechanism of legal regulation, mechanism of legal influence, General permits, General prohibitions, excessive normativity, legal dogma.
Sinyukov V. N. Theory of Law of S. S. Alekseev and Its Role in Developing Domestic Legal Doctrine. Journal of Russian Law, 2020, no. 2, pp. 5—20. (In Russ.) DOI: 10.12737/jrl.2020.013
Alekseev N. N. Russian people and state. Moscow, 1998. (In Russ.)
Alekseev S. S. Collected works. Moscow, 2010. (In Russ.)
Alekseev S. S. General theory of law. Vol. II. Moscow, 1982. 360 p. (In Russ.)
Alekseev S. S. Mechanism of legal regulation in the socialist state. Moscow, 1966. (In Russ.)
Belyaev M. A. Post-Soviet legal thinking and its subject. Problems of post-Soviet theory and philosophy of law. Moscow, 2016. 296 p. (In Russ.)
Berg L. N. Legal impact: instrumental aspect. Ekaterinburg, 2019. 182 p. (In Russ.)
Golovko L. V. Post-Soviet theory of law: difficulties of positioning in historical and comparative legal context. Problems of post-Soviet theory and philosophy of law. Moscow, 2016. 296 p. (In Russ.)
Kazimirchuk V. P. Social mechanism of law. Sovetskoe gosudarstvo i pravo, 1970, no. 10, pp. 37—44. (In Russ.)
Marochkin S. Yu. the European Court of human rights and the Russian constitutional Court twenty years later: back to the future? Rossiyskiy yuridicheskiy zhurnal, 2019, no. 1. (In Russ.)
Theoretical jurisprudence: traditions, modernity, prospects. Alexis reading. Ed. By V. D. Perevalov. Ekaterinburg, 2014. Vol. 1. 256 p. (In Russ.)
Yu. A. Tarasenko
Law Institute, Russian University of Transport, Moscow 127994, Russian Federation
The fictitious bankruptcy institute in pre-revolutionary Russian law is developed in the logic of dividing insolvency into force majeure and guilty. The beginning of this development is laid in Russian Pravda in the rules on commercial insolvency. However, the norms of early Russian law hadn't yet regulated the current situation in which the debtor hid the property, deliberately creating the appearance of its insolvency. The objective of this work is to trace at what stage in Russian law the lawmaker's reaction to unlawful acts committed in order to conceal property from creditors and imitated force majeure bankruptcy appeared. For this purpose, the article analyses the norms of Russian Truth, Judicial Code of Ivan III, the Cathedral Code of 1649, bankruptcy laws of the 18th — 19th Centuries.
As a result the study reveals for the first time the norm governing fictitious insolvency found only in the 17th Century, in the Council Code. At the same time the emergence of this norm was a natural process of evolution of Russian law from the insolvency of the guilty, which occurred as a result of the ill-conceived, often unreasonable actions of the merchant, to the insolvency of the willful, creating only the appearance of bankruptcy. However, this achievement in Russian law didn't develop further. Since the 18th Century, during the period of Peter's reforms, bankruptcy legislation, which experienced the strong influence of foreign law, lost the norm of fictitious insolvency. It emerged only after its adoption at the beginning of the 20th Century. In the Criminal Code the category of fictitious bankruptcy appeared again.
The author believes that the brief coverage of the evolution of the fictitious bankruptcy institution described in this article allows one to conclude that in early feudal Russian law the category of false bankruptcy developed completely independently, since there were no direct analogues in foreign law of the early medieval period (Barbaric Truths, Eclogue).
fictitious bankruptcy, insolvency, false bankruptcy, force majeure, Russkaya Pravda, Cathedral Code, Ivan III Code, trade.
Tarasenko Yu. A. Evolution of the Fictitious Bankruptcy Institute in the Russian Pre-Revolutionary Legislation. Journal of Russian Law, 2020, no. 2, pp. 21—28. (In Russ.) DOI: 10.12737/jrl.2020.014
Berkovich N. V. Bankruptcy: Criminal Law and Criminological Aspects. Cand. diss. Saratov, 2002. 206 p. (In Russ.)
Complete collection of laws of the Russian Empire. Collection I. Vol. 11. Art. 8300; Collection II. Vol. 7. Art. 5463; Collection III. Vol. 23. Art. 22704. (In Russ.)
Khakulov M. Kh. Wrongful (deliberate and fictitious) bankruptcy. Cand. diss. Kislovodsk, 2000. 161 p. (In Russ.)
Kievan Rus. Ed. by V. N. Storozhev. Vol. 1. 2nd ed. Moscow, 1910. 664 p. (In Russ.)
Monuments of Russian law. Iss. 3. Monuments of law during the formation of the Russian centralized state. XIV — XV centuries. Moscow, 1955. 527 p. (In Russ.)
Monuments of Russian law. Iss. 6. Moscow, 1957. 503 p. (In Russ.)
Shershenevich G. F. Doctrine of insolvency. Kazan', 1890. 461 p. (In Russ.)
Tikhomirov M. N. Study Guide for Russian Truth. Moscow, 1953. 192 p. (In Russ.)
I. N. Bartsits
Institute of Public Administration and Civil Service, Russian Presidential Academy of National Economy and Public Administration, Moscow 119571, Russian Federation
The author of the article pays attention to the delimitation of the “constitutional custom” concept from other similar terms (for example, from constitutional custom), considers the features of codification of constitutional customs and their existence on the state-legal landscape. The risks of using constitutional customs in the practice of public administration are highlighted and ways of dying off constitutional customs and constitutional traditions are systematized.
The purpose of the study is to form an expanded idea of the origin, existence and death of constitutional customs and constitutional traditions in the state legal life based on the analysis of scientific sources, texts of the constitution, other constitutional legal norms and judicial practice.
The article uses methods of comparative law, as historical data are classified and interpreted. The law enforcement practice and, thanks to a systematic approach, the conclusions about the “life cycle” of constitutional customs and constitutional traditions in public administration are synthesized.
Conclusions: a comparative analysis of the constitutional customs of various countries, the features of their appearance and existence allows one to talk about their ambiguous role in the political culture and constitutional tradition of various countries. The processes of the emergence and death of constitutional custom require coordination with all subjects of political life. If one constitutional custom is supplanted by another rule, it is necessary to determine its status, role and support measures in subsequent state legal practice. It is possible that until the new rule is recognized as constitutional custom, it is necessary to try on the role of constitutional habit.
constitution, constitutional customs, constitutional traditions, constitutional habits, constitutional habits, codification of constitutional customs.
Bartsits I. N. Constitutional Customs: Risks and Ways to Manage Them. Journal of Russian Law, 2020, no. 2, pp. 29—44. (In Russ.) DOI: 10.12737/jrl.2020.015
Bradley A. W., Ewing K. D. Constitutional and Administrative Law. 15th ed. Longman, 2010.
Brazier R. Constitutional Reform: Reshaping the British Political System. Oxford, 2008.
Close D. B. The Formation of a Two-Party Alignment in British Parliament. London, 1987.
Franquet A. Ch. Le gouvernement et le Parlement britanniques. Vol. 1: Le gouvernement. Vol. 2: Constitution du Parlement. Vol. 3: La procaedure parlementaire. Paris, 1887.
Jenkins D. Common law declarations of unconstitutionality. International Journal of Constitutional Law, 2009, vol. 7, iss. 2.
Joint Committee on Conventions, Conventions of the UK Parliament, HL Paper 265-1, HC 1212-1, para 279.
Kokotov S. A. Konstitutsionnye konventsii v istorii gosudarstvennogo stroitel'stva Kanady. USA i Kanada: ekonomika, politika i kul'tura, 2002, no. 7.
Kumarisingham H. The Indian version of first among equals — executive power during the first decade of independence. Modern Asian studies, 2010, vol. 44, no. 4, pp. 709—751.
Marshall G. Constitutional Conventions: The Rules and Forms of Political Accountability. Oxford, 1993.
Politicheskiy stroy sovremennykh gosudarstv. St. Petersburg, 1905.
Pronnikov V. A., Ladanov I. D. Yapontsy (etnopsikhologicheskie ocherki). 2nd ed. Moscow, 1985.
Romanova M. I. Parlamentskaya reforma 1832 goda v Anglii i ee posledstviya. Novaya i noveyshaya istoriya, 2005, no. 4.
Rumyantsev A. G. Nemetskoe obshchestvo, gosudarstvo i pravo v 1949—2009 godakh: chto bylo, chto izmenilos' i chego mozhno ozhidat'. Sravnitel'noe konstitutsionnoe obozrenie, 2009, no. 3.
The British Constitution in the Twentieth Century. Ed. by V. Bogdanor. Oxford, 2003.
What's a Sewel Convention and why did it feature in the Brexit court ruling? Available at: https://www.bbc.com/news/uk-scotland-scotland-politics-38731693.
A. V. Grigoriev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
In modern conditions, one of the trends of social development is the transition to the so-called information society. The Informatization (digitalization) processes have a significant impact on the mechanisms of implementing the right of citizens to participate in the management of state affairs. In particular, this is manifested in the complex impact of information (digital) technologies on the institutions of democracy, which leads to the emergence of the electronic democracy phenomenon.
The article analyzes the specifics of exploiting information technologies within the institutions of direct democracy. It is noted that information technologies are able to enhance the effectiveness of existing institutions and at the same time create impulses to the development of fundamentally new types of normative regulation. The article reveals mechanisms of influence of new information technologies on the content and implementation of the civil right to participate in the state management. Digital and information technologies give a new quality to the functioning of state institutions and provide concretization of already existing rights of citizens.
There are conclusions about the importance of electronic democracy, its role and place in the modern constitutional and legal regulation in the article. In the case of imperative institutions of direct democracy, the main task of electronic democracy should increase the accuracy and reliability of accountability to meet the will of Russian citizens and attract the largest number of citizens of the Russian Federation; in the case of the dispositive (consultative) institutions of direct democracy the main task is to transform the nominally and legally enshrined institutions into their real form. The aim of electronic democracy regulation should be the maximum degree of implementation of the constitutional democratic foundations in the Russian Federation. The article highlights the risks for the institutions of direct democracy associated with digitalization. Taking into account the identified factors, the regulation of the relevant public relations should ensure the control of citizens and civil society institutions over the mechanisms of accountability to the will through information (digital) technologies and transparency of the relevant mechanisms and procedures.
institutions of direct democracy, constitutional legal relationships, e-democracy, information security, digitalization, e-voting, public initiatives.
Grigoriev A. V. The Implementation of the Right to Participate in State Management in the Digital Age. Journal of Russian Law, 2020, no. 2, pp. 45—57. (In Russ.) DOI: 10.12737/jrl.2020.016
Constitutional and legal foundations of the anti-corruption improvements are expected in Russia and abroad Constitutional and legal foundations of the anti-corruption improvements are expected in Russia and abroad. Ed. by S. A. Avak'yan. Moscow, 2016. 568 p. (In Russ.)
Khabrieva T. Y., Chernogor N. N. The Law in the Conditions of Digital Reality. Zhurnal rossijskogo prava = Journal of Russian Law, 2018, no. 1, pp. 85—102. DOI: 10.12737/ art_2018_1_7 (In Russ.)
Khau Dzh. Crowdsourcing: why the power of the crowd is driving the future of business. Moscow, 2012. 288 p. (In Russ.)
Komarova V. V. E-democracy — myth or reality. Uchenye zapiski Khudzhandskogo gosudarstvennogo universiteta im. akademika B. Gafurova. Seriya: Gumanitarnye nauki, 2016, no. 3 (48), pp. 44—52. (In Russ.)
Komarova V. V. Forms of direct democracy. 3rd ed. Moscow, 2014. 424 p. (In Russ.)
Legal basis of public control in the Russian Federation: article-by-article scientific and practical commentary to Federal law No. 212-FZ of July 21, 2014 “On the basis of public control in the Russian Federation”. Ed. by M. A. Fedotov. Moscow, 2017. 209 p. (In Russ.)
M. N. Grachev, A. S. Madatov Democracy: research methodology, analysis of prospects Moscow, 2004. 192 p. (In Russ.)
Mikheeva T. N. Current trends in legal regulation of the status of the Public chamber of the Russian Federation. Yuridicheskiy mir, 2013, no. 5, pp. 11—13. (In Russ.)
Moskaleva O. V. The dangers of digitalization. Zhilishchnoe pravo, 2017, no. 10, pp. 63—71. (In Russ.)
Pavlushkin A. V., Postnikov A. E. Legal Mechanism of Distance Electronic Voting (Feasible Model Analysis). Zhurnal rossijskogo prava = Journal of Russian Law, 2009, no. 11, pp. 5—13. (In Russ.)
Shakhray S. M. Constitutional law of the Russian Federation. 4th ed. Moscow, 2017. 624 p. (In Russ.)
Shul'ga-Morskaya T. V. Electronic voting: experience and prospects of Switzerland and Russia. Advokat, 2013, no. 3, pp. 57—72. (In Russ.)
Speech by the Chairman of the Central election Commission of Russia V. E. Churov “Electronic voting”. Available at: http://tag.ikso.org/News_2011/vistupl.htm (accessed 12.03.2019). (In Russ.)
Tikhomirov Yu. A., Krysenkova N. B., Nanba S. B., Margusheva Zh. A. Robot and Human: A New Partnership? Journal of Foreign Legislation and Comparative Law = Zhurnal zarubezhnogo zakonodatel'stva i sravnitel'nogo pravovedeniya, 2018, no. 5, pp. 5—10. DOI: 10.12737/art.2018.5.1 (In Russ.)
M. I. Kleandrov
Institute of State and Law, Russian Academy of Sciences, Moscow 119019, Russian Federation
The research deals with the issue of the institute of oath of a Russian judge, which is important in the mechanism of judicial power. It reveals that the excessive conciseness issue in the text of the oath does not allow either legislatively or in any other way to bring the judge to any responsibility for violation of the oath, especially in comparison with domestic historical analogues. The author draws attention to the fact that it is impossible to bring the judge to disciplinary responsibility for violation of judicial oath, primarily because of deficiency provided by the current legislation in its core, where disciplinary offense of a judge is considered as the offense of ethical nature. The author believes that ethical offense should be implied by the ethical measures of punishment, not legal, in particular — disciplinary. This is why a mechanism of ethical responsibility of the judges is needed and the author proposes such model. At the same time, it is possible that a judge commits a serious ethical offence, which is not a disciplinary offence (nor is it a crime or an administrative offence). This should result in the expulsion of a judge from the judiciary. It should be considered as a violation of the oath by the judge, entailing (as a result of a serious disciplinary offense) the constitutional responsibility of the judge in the form of early termination of powers.
The aims and objectives of this study is to provide scientific justification for the creation of better mechanisms of ethical, disciplinary and constitutional responsibility of judges, which requires adjustments of: federal legislation, corporate norms of the judicial community, law enforcement practice, and ideally — the Constitution of the Russian Federation.
General scientific (analysis, synthesis, system, functional, etc.) and private-scientific methods of legal science (formal-legal, comparative-legal, historical-legal, etc.) are applied in the research.
The result of this study is the proposal made by the author, which implementation can increase the efficiency of the domestic justice mechanism and the fairness of judicial decisions issued by judges.
court, judge, judge's oath, judge's responsibility, constitutional responsibility.
Kleandrov M. I. The Institute of Oath of a Russian Judge: Defectiveness of the Formula and Constitutional Responsibility for Violation. Journal of Russian Law, 2020, no. 2, pp. 58—71. (In Russ.) DOI: 10.12737/jrl.2020.017
Akimova E. Ya. Peculiarities of Legal Regulation of Formation of Judicial Corpus in Germany. Rossiyskiy sud'ya, 2011, no. 11, pp. 84—95. (In Russ.)
Aranovsky K. V., Knyazev S. D. Institute of Oath of Judge of the Constitutional Court of the Russian Federation: Origins, Features, Role. Zhurnal rossijskogo prava = Journal of Russian Law, 2011, no. 10, pp. 134—141. (In Russ.)
Bedzhanova T. E., Osmanova Kh. O. On the Issue of Understanding Constitutional Responsibility. Zakon i pravo, 2019, no. 7, pp. 64—65. (In Russ.)
Collection of Acts on the Court and the Status of Judges of the Russian Federation. Iss. 5. Moscow, 2012. Book 3. 510 p. (In Russ.)
Commentary on the Constitution of the Russian Federation. Ed. by Yu. V. Kudryavtsev. Moscow, 1996. 552 p. (In Russ.)
Frezer Dzh. The Golden Bough: A Study in Magic and Religion. Moscow, 1980. 286 p. (In Russ.)
Giro P. Private and Public Life of the Greeks. St. Petersburg, 1916. 683 p. (In Russ.)
Goshulyak V. V. Theoretical and Legal Issues of Constitutional Responsibility. Konstitutsionnoe i munitsipal'noe pravo, 2009, no. 24, pp. 9—12. (In Russ.)
Kleandrov M. I. Judicial Ethical Responsibility Mechanism: Issues of Formation. Moscow, 2017. 240 p. (In Russ.)
Kleandrov M. I. On the Council of the Judiciary in the Russian Federation. Moscow, 2016. 160 p. (In Russ.)
Lipitskiy D. A. On the Legal and Technical Constructions of Sanctions of Constitutional Responsibility. Pravovoe gosudarstvo: teoriya i praktika, 2018, no. 4 (54), pp. 104—111. (In Russ.)
Serkov P. P. Constitutional Responsibility in the Russian Federation: Modern Theory and Practice. Moscow, 2014. 464 p. (In Russ.)
The Collection of Decisions of the All-Russian Congress of Judges and Decisions (Appeals) of the Council of Judges of the Russian Federation (1991—2012). Vol. I. Moscow, 2012. 532 p. (In Russ.)
The Judicial Statutes of November 20, 1864, Setting Out the Reasoning on Which They Are Based. Part 3. St. Petersburg, 1866. 757 p. (In Russ.)
Tuzmukhamedov B. R. The Tribunal Leaves — Questions Remain: Once Again About the Inconspicuous Problems of International Courts. Nezavisimaya gazeta, 2016. August 24. (In Russ.)
Yaroshenko N. I. Foundations of Constitutional Legal Responsibility in the Field of Normative Control. Zhurnal rossijskogo prava = Journal of Russian Law, 2014, no. 1, pp. 101—112. DOI: 10.12737/1821 (In Russ.)
V. P. Gayduk
Tyumen State University, Tyumen 625000, Russian Federation
The author raises the regulation's formation issues emerged in employing intellectual property in the context of digitalization of society based on a balance of interests of authors, copyright holders, users, society and the state. The purpose of the research is to formulate basic provisions to regulate copyright and intellectual property relations in the future.
The empirical research methods are: observation, experiment, measurement, interpretation; general scientific methods: axiomatic method, hypothetical-deductive analysis, synthesis, induction, abstraction, idealization and verbal modeling.
The results of the study are: it is proposed to revise the basics of intellectual property law based on the possibilities of the digital environment and self-regulation of relations in the field of intellectual property. Namely it is: recognition of the author's rights as inalienable natural rights, as well as recognition of citizens 'rights to access and use the intellectual products; the possibility of free use of intellectual products in the digital environment by users for non-commercial purposes, unless otherwise established by the author (copyright holder); the concept of a bona fide user; the right of the author to dispose the exclusive right for the intellectual product by transferring it to the public domain. These provisions create the basis for implementing the principle of balancing the interests of authors, copyright holders and society as a whole. And as a result the work achieves the correspondence of actual relations on the use of works in the digital environment and the rule of law, that is, law and order.
intellectual property, intellectual products, digital environment, balance of interests, principles, authors, copyright holders, users, legislation, legality, international norms, international treaties.
Gayduk V. P. The Evolution of Intellectual Property Law in the Digital Age. Journal of Russian Law, 2020, no. 2, pp. 72—84. (In Russ.) DOI: 10.12737/jrl.2020.018
Andryushchenko E. S. Internet Relations: State Regulation and Self-Government. Cand. diss. Saratov, 2010. (In Russ.)
Bachilo I. L. Information law: the basics of practical informatics. Moscow, 2001. (In Russ.)
Dvoryankin O. Is Intellectual Property the Last Bastion of Well-Being? Intellektual'naya sobstvennost'. Avtorskoe pravo i smezhnye prava, 2018, no. 9. (In Russ.)
Fleyshits E. A. Personal rights in the civil law of the USSR and capitalist countries. Moscow, 1941. (In Russ.)
Fogelson Yu. B. Soft Law in the Modern Legal Discourse. Zhurnal rossijskogo prava = Journal of Russian Law, 2013, no. 5, pp. 37—48. (In Russ.)
Glushkov A. V. Problems of legal regulation in Internet. Cand. diss. thesis. St. Petersburg, 2007 (In Russ.)
Goloskokov L. V. Network Law Theory. Ed. by A. V. Mal'ko. St. Petersburg, 2006. (In Russ.)
Gorbunov V. A. The category of interest (person, society, state) in the constitutional legislation of the Russian Federation. Cand. diss. thesis. Tyumen', 2007. (In Russ.)
Hua J. J. Toward a More Balanced Approach: Rethinking and Readjusting Copyright System in the Digital Network Era. Heidelberg, 2014.
Intellectual property is a stupid euphemism. Available at: http://geektimes.com/post/31587 (accessed 03.03.2019). (In Russ.)
Intellectual Property Law. Ed. by I. A. Bliznets. Moscow, 2014. (In Russ.)
Ivanov V. N. How to protect your rights and legitimate interests. Moscow, 2000. (In Russ.)
Khabrieva T. Y., Chernogor N. N. The Law in the Conditions of Digital Reality. Zhurnal rossijskogo prava = Journal of Russian Law, 2018, no. 1, pp. 85—102. DOI: 10.12737/ art_2018_1_7 (In Russ.)
Land M. Toward an International Law of the Internet. Harvard International Law Journal, 2013. Vol. 54.
Larry Lessig on how the law suppresses creativity. Available at: https://gradespatent. wordpress.com/2010/06/07 (accessed 03.03.2019). (In Russ.)
Lisitsa V. N. Intellectual Property Law. Novosibirsk, 2012. (In Russ.)
Litvinova S. F. A systematic approach to the study of law: homeostasis of legal regulation. Pravo i gosudarstvo: teoriya i praktika, 2013, no. 12. (In Russ.)
MacQueen H., Waelde Ch., Lauri G. Contemporary Intellectual Property: Law and Policy. Oxford, 2010.
Mal'tsev G. V. Socialist law and individual freedom. Moscow, 1968. (In Russ.)
Marchenko M. N. The rule of law and civil society (theoretical and legal research). Moscow, 2015. (In Russ.)
Matuzov N. I. Personality. Rights. Democracy: Theoretical Problems of Subjective Law. Saratov, 1972.
Nersesyants V. S. Law and Statute. From the history of legal doctrines. Moscow, 1983. (In Russ.)
Pevzner A. G. The concept and types of subjective civil rights. Uchenye zapiski VYuZI. Moscow, 1960. Iss. X. (In Russ.)
Podshibikhin L. Limitations and Exceptions to Copyright and Related Rights in the Digital Age. Intellektual'naya sobstvennost'. Avtorskoe pravo i smezhnye prava, 2005, no. 4. (In Russ.)
Prostakov S. There is no such thing as intellectual property. Available at: http://rusplt.ru/society/education/world/ciftolucija.html (accessed 03.03.2019). (In Russ.)
Rakhmatulina R. Sh., Sviridova E. A. Actual problems of intellectual property law. Moscow, 2018. (In Russ.)
Rasskazov L. P. Theory of State and Law: Advanced Course. Moscow, 2015. (In Russ.)
Senftleben M. Over protection and protection overlaps in IO Law — the need for horizontal fair use defenses. The Structure of IP Law. Ed. by A. Kur, V. Mizaras. Cheltenham; Northampton, 2011.
Shapiro J. Evolution: a view from the 21st century. 2012. Available at: http://bookre.org/reader?file =1432164 (accessed 07.06.2018).
Shaptsev V. A., Hartian D. Y. Informative parameters of the IT-infrastructure. Determination Experience 2017. SIBIRCON. 2017. 18—24 September. Novosibirsk. IEEE MCE, IEEE Xplore Digital Library. Available at: https://yadi.sk/d/zWfFHPkB3PSG4m (accessed 12.02.2019).
Shugurov M. International legal regimes of limitations and exceptions to copyright and related rights. Intellektual'naya sobstvennost'. Avtorskoe pravo i smezhnye prava, 2018, no. 12. (In Russ.)
Skorobogatov V. Yu. Self-regulation as a feature of the legal system. Cand. diss. thesis. Moscow, 2013. (In Russ.)
Subochev V. V. Legitimate interests. Moscow, 2008. (In Russ.)
Sudarikov S. A. Intellectual Property Law. Moscow, 2014. (In Russ.)
Tikhomirov Yu. A. Law in the modern world: development vectors. Gosudarstvo i pravo, 2017, no. 2. (In Russ.)
Voynikanis E. A. The Digital Intellectual Property Law: A Paradigm of Balance and Flexibility. Moscow, 2014. (In Russ.)
Zor'kin V. D. Civilization of law and development of Russia. Moscow, 2015. (In Russ.)
Zor'kin V. D. Constitutional and legal development of Russia. Moscow, 2011. (In Russ.)
L. V. Sagdeeva
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
This article discusses two methods of civil rights protection: negatory action (Article 304 of the Russian Civil Code) and demand to suppress actions violating a right or creating a threat to violate a right (Article 1252 of the Russian Civil Code). The author reviews the current Russian and foreign legislation, legal views of the Russian commercial courts and the Intellectual Property Rights' Court and the legal positions of the US Supreme Court.
The methodology determined by the chosen subject's specifics includes certain general scientific methods (analysis, synthesis and comparison).
Key findings: while negatory actions specify the provisions of the third paragraph of Article 12 of the Russian Civil Code within the property rights institute, the provisions of the Article 1252 of the Russian Civil Code on the demand to suppress actions violating a right or creating a threat of violation of a right are applicable under the intellectual property rights regime. As applied to intellectual property, the demand to suppress actions is a means of protecting an exclusive right and, therefore, exhibits the features similar to those of a negatory action. In contrast to the negatory action, despite the continuing nature of violations to be suppressed under the Article 1252 of the Russian Civil Code, the Article 208 of the Russian Civil Code does not contain provisions on non-application of terms on limitations in relation to the protection of exclusive rights. Following the above, the author proposes to amend the list of claims excluded from the terms of limitations under the Article 208 of the Russian Civil Code with additional items.
negatory action (claim), exclusive rights, property rights, intellectual property, means of protection (remedy), suppression of actions, injunction (injunctive relief).
Sagdeeva L. V. Negatory Claims and Demands to Suppress Actions Violating Rights or Posing a Threat of Violation of Rights. Journal of Russian Law, 2020, no. 2, pp. 85—93. (In Russ.) DOI: 10.12737/jrl.2020.019
Erdelevskiy A. On Certain Issues of Limitation Period. Khozyaystvo i pravo, 2014, no. 2, pp. 54—58. (In Russ.)
Erdelevskiy A. The approach of Russian courts to the actio negatoria. Khozyaystvo i pravo, 2013, no. 12, pp. 19—28. (In Russ.)
Lomidze O., Lomidze E. The scope of application of the actio negatoria. Khozyaystvo i pravo, 2014, no. 12, pp. 40—52. (In Russ.)
Menell P. S. Governance of Intellectual Resources and Disintegration of Intellectual Property in the Digital Age. 26 Berkeley Tech. L. J. 1523, 2011. Available at: https://scholarship.law.berkeley.edu/facpubs/583/ (accessed 15.05.2019).
Menell P. S. Intellectual Property and the Property Rights Movement. 30 Regulation 36, 2007. Available at: https://scholarship.law.berkeley.edu/facpubs/728/ (accessed 15.05.2019).
Merges R. P. What Kind of Rights Are Intellectual Property Rights? UC Berkeley Public Law Research Paper, 2017. Available at: https://ssrn.com/abstract=2959073 (accessed 15.05.2019).
Novoselova A. A., Podshivalov T. P. The role of the action in rem in civil law. Chelyabinsk, 2010. 268 p. (In Russ.)
Sagdeeva L. V. Requests to stop actions that violate or threaten to violate rights. Intellektual'naya sobstvennost'. Promyshlennaya sobstvennost', 2019, no. 1. (In Russ.)
Sinitsyn S. A. Actio Negatoria in the Russian and Foreign Law. Zhurnal rossijskogo prava = Journal of Russian Law, 2014, no. 4, pp. 84—101. DOI: 10.12737/2922 (In Russ.)
Yu. V. Voronin, A. V. Stolyarov
Yu. V. Voronin, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
A. V. Stolyarov, Academy of Labour and Social Relations, Moscow 119454, Russian Federation
In the article the authors analyze some problems of the mandatory funded component of the pension system transformation in the Russian Federation, as well as differences and similarities of the now proposed models for its reorganization in the forms of “individual pension capital” and “guaranteed pension product” in bundle with problems generated by the possible implementation of these proposals.
The research is based on a combination of formal logical, dialectical and comparatives methods. In a process of the further improvement of the pension model analysis, esp. in terms of introducing the institute of “individual pension capital”, the generalization method was also used.
Particular attention was paid to the proposed “guaranteed pension product” model. Its strengths and weaknesses are analyzed, and the conclusion is made that the proposed solution is inadequate to the challenges facing the reforming system of mandatory fully-funded pension provision. It is emphasized that the proposed model of the “guaranteed pension product” contains unavoidable logical contradictions and its implementation in practice will only lead to an increase in disorganization of the pension system.
Based on the analysis, they formulate some attitudes to the problem of the voluntary non-state pension system reorganization in order to fully and effectively solution of the problems of accumulating pension savings. The authors conclude that the optimal solution is to transfer the mandatory fullyfunded pension provision to the sphere of private law regulation based on the principles of voluntariness.
guaranteed pension product, guaranteed pension product, state guarantees, individual pension capital, individual pension capital, non-state pension provision, mandatory pension insurance, pension reform, pension system, reform of the pension system.
Voronin Yu. V., Stolyarov A. V. Transformation of the Funded Pension Component of the Russian Federation: Searching the Conceptualization of the Contemporary Model. Journal of Russian Law, 2020, no. 2, pp. 94—111. (In Russ.) DOI: 10.12737/jrl.2020.020
Afonin A., Yanin A. Privat Pension Fund's Market at the End of the 2018 Fiscal Year. Available at: https://raexpert.ru/researches/npf/2018. (In Russ.)
Aksenov P. Privat Pension Funds Diverged In the Calculations. The Bank of Russia is Asked not to Introduce a Fixed Part of the Assets Management Fee. Kommersant, 2017. September 4, no. 162. (In Russ.).
Big Fraud at the Retirement Market. Citizens Lost billions in Investment Income. Available at: https://www.bfm.ru/news/415457. (In Russ.)
Central and Eastern Europe: New Member States (NMS) Policy Forum, 2014. Selected Issues. Washington, 2015.
Gurvich E. Public Finances in the Age of Aging. Kommersant “Nauka”, prilozhenie no. 30, 2018, August 30. (In Russ.)
Heinz P. R. Pension Funds with Automatic Enrollment Schemes: Lessons for Emerging Economies. Policy Research working paper. No. WPS 8726. Washington, 2019. Available at: http://documents.worldbank.org/curated/en/368081549376313709/Pension-Funds-with-Automatic-Enrollment-Schemes-Lessons-for-Emerging-Economies.
Pension Savings in Russia. A Crisis of Expectations or New Opportunities. Ed. by Yu. V. Voronin, V. P. Emel'yantsev. Moscow, 2017. (In Russ.)
Perekrest V. Rob Pensioners and Escape to London. As a Civil Servant and Reform-Maker Boris Mints turned first into a Billionaire, and then into a Runaway. Komsomol'skaya pravda, 2018, June 5. (In Russ.).
Pyatin A. “Like a cat and a dog”. FT Linked the Sberbank and Yandex “Divorce” with a Failed Attempt to Purchase a Share of the Company. Forbes, 2019, July 29. Available at: https://www.forbes.ru/biznes/380873-kak-koshka-s-sobakoy-ft-svyazala-razvod-sberbanka-s-yandeksoms-neudavsheysya-pokupkoy/. (In Russ.).
The Ministry of Finance Has Elaborated a Bill on “Guaranteed Pension Product”. Available at: https://tass.ru/ekonomika/6855992 (accessed 20.10.2019).
Voronin Yu. V. Private in Public, or Some Reflections on the Research Methodology of the Pension System's Funded Part in the Russian Federation's Social Security Law. Zhurnal rossijskogo prava = Journal of Russian Law, 2019, no. 3, pp. 84—96. DOI: 10.12737/art_2019_3_7 (In Russ.)
Voronin Yu., Nazarov V. What will happen to pension and us? (Materials of the Discussion) Available at: https://echo.msk.ru/programs/sorokina/1853364-echo. (In Russ.)
Voronin Yu., Stolyarov A. Funded Private Pensions. Balanced Approaches to the Regulation of the Investment Process, Taking into Account Private and Public Interests. Investitsii v natsional'nom i mezhdunarodnom prave: balans chastnykh i publichnykh interesov. Moscow, 2019. (In Russ.)
T. Yu. Korshunova
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
Due to dynamic changes in recent decades the labor market in our country requires the constant development of labor relations that would most closely correspond to it. Atypical forms of employment appearance is dictated by changes in the socio-economic situation in the country and thus, the emerged digitalization processes starts to require adequate legal solutions that allow for more flexible regulation of labor relations and the use of new legal mechanisms that differ from those traditionally used by labor legislation. One of the new forms of employing wage labor is the conclusion of distance work contracts, which allows the employer to reduce costs without violating labor laws. The author notes that at present the Russian legislator does not clearly understand the place and role of atypical relations in the system of labor relations, and Russian employers — the main beneficiaries of regulating atypical employment — have not fully realized the opportunities that the information society and the rapid development of telecommunications offer them.
The article discusses the legal problems of regulation of distance labor as a type of atypical employment. The author analyzes the definition of distance work, identifies its types and notes the incompleteness and vagueness of the current legal regulation.
The purpose of the study is to improve the legal mechanisms for regulating distance work to identify problems faced by workers and employers when concluding distance work agreements. The author's task is to identify gaps and contradictions that currently exist and to analyze judicial practice.
The methodological basis of the study is made up of universal, general scientific methods, systemicstructural and formal-legal methods.
The author suggests improvements of labor legislation, which would enhance the regulation effectiveness and simplify the mechanisms for formalizing labor relations with remote workers. This, in turn, makes remote work more accessible and increases the social security of remote workers. The author makes a number of suggestions for improving the legal regulation of working time of remote workers. The implementation of the author's proposals allows employers to use more effectively this form of employment as the conclusion of contracts on distance work.
labor relations, atypical employment, distance work, electronic document management, labor rights.
Korshunova T. Yu. Remote Work Agreement as a Way to Formalize Atypical Labour Relations. Journal of Russian Law, 2020, no. 2, pp. 112—125. (In Russ.) DOI: 10.12737/jrl.2020.021
Aleksandrova A. V. Post-industrialism and labor law. Access from SPS “Consultant Plus”. (In Russ.)
Bugrov L. Yu. Reflection of mobility in the labor law of Russia. Vestnik Permskogo Universiteta. Juridicheskie Nauki = Perm University Herald, Juridical Sciences, 1999, iss. 2, pp. 131—150. (In Russ.)
Chesalina O. V. Work based on Internet platforms (crowd work and work on demand via apps) as a challenge to labor and social law. Access from SPS “Consultant Plus”. (In Russ.)
Filippov V. Four minuses of remote work. Trudovye spory, 2019, no. 9, pp. 64—69 (In Russ.)
Golovina S. Yu. The use of private law constructions in the codification of the Russian labor legislation. Access from SPS “Consultant Plus”. (In Russ.)
Khnykin G. V. Losses and acquisitions of Russian labor law. Trudovoe pravo v Rossii i za rubezhom, 2015, no. 2, pp. 15—19. (In Russ.)
Kostyan I. A. Duration of the employment contract: is it possible to change? Spravochnik kadrovika, 2012, no. 11, pp. 38—50. (In Russ.)
Loginova L. V. Precarization of labor relations: problems and prospects of institutionalization. Vestnik Sankt-Peterburgskogo gosudarstvennogo universiteta. Seriya 12: Sotsiologiya, 2016, iss. 3, pp. 34—47. (In Russ.)
Lyutov N. L. Labor relationship: new forms and transformation in the digital economy. Access from SPS “Consultant Plus”. (In Russ.)
Lyutov N. L. Remote work: the experience of the European Union and the problems of legal regulation in Russia. Lex Russica, 2018, no. 10, pp. 30—39. (In Russ.)
Maslova E. V. The precariat as a manifestation of non-standard work and its features (on the example of the Voronezh region). Vestnik Omskogo universiteta. Seriya: Ekonomika, 2016, no. 3, pp. 201—208. (In Russ.)
Mironov V. I., Novikova M. V. Remote Work as a Phenomenon on the Russian Labor Market: Differentiation and Discrimination. Access from SPS “Consultant Plus”. (In Russ.)
Motsnaya O. V. Atypical employment: some problems of theory and practice: Cand. diss. thesis. Moscow, 2009, 26 p. (In Russ.)
Shabanova M. A. Features of the legal regulation of atypical labor contracts: Cand. diss. thesis. Yaroslavl', 2008. 28 p. (In Russ.)
Shuraleva S. V. Regulation of remote work with a foreign element in the era of globalization: a view from the perspective of Russian labor law. Vestnik Permskogo Universiteta. Juridicheskie Nauki = Perm University Herald, Juridical Sciences, 2014, no. 3, pp. 156—163. (In Russ.)
Tsypkina I. S. Regulation of labor of employees sent by the employer to other individuals or legal entities under an agreement on the provision of personnel labor. Access from SPS “Consultant Plus”. (In Russ.)
Vasil'eva Yu. V., Shuraleva S. V. The content of the employment contract on remote work: theoretical aspects. Vestnik Permskogo Universiteta. Juridicheskie Nauki = Perm University Herald, Juridical Sciences, 2016, iss. 32, pp. 216—225. (In Russ.)
Vasil'eva Yu. V., Shuraleva S. V., Braun E. A. Legal regulation of distance work: problems of theory and practice. Perm', 2016. 127 p. (In Russ.)
Vittorio Di Martino. The high road to teleworking. Promoting decent work. Geneva, 2001. 142 p.
Zakalyuzhnaya N. V. Atypical labor relations in the context of globalization and modernization of the economy. Access from SPS “Consultant Plus”. (In Russ.)
Zakalyuzhnaya N. V. Features of the legal regulation of labor of attracted workers. Access from SPS “Consultant Plus”. (In Russ.)
A. V. Kuchinskaya, E. A. Galinovskaya
A. V. Kuchinskaya, Expert Department, President of the Russian Federation, Moscow 103132, Russian Federation
E. A. Galinovskaya, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
Rational use of land resources is the basis of state sovereign development and society's spatial and sectorial development. In connection with the active use and increasing competition for land resources in the Russian Federation, it is increasingly important to determine the goals and objectives of state policy in the land sector. At the same time, to date, the state land policy has not been fully formed.
The purpose of the article is to develop scientifically based proposals to determine the content, main directions and methods of implementation of the state land policy. To achieve this goal, the article solves a number of problems, which include: the analysis of the general problems of formation and implementation of the state land policy; the current situation in the development of Federal policy in the field of regulation of land relations in the Russian Federation; the main normative legal acts outlining the directions of land policy.
General scientific methods (analysis and synthesis, generalization method, comparative-historical method) and formal-legal method are applied in the study. The methods of interpretation of the rules of law are used, such as grammatical, systemic, historical, logical.
The authors conclude that the state's land policy should be considered as part of the unified social and economic policy based on the Constitution of the Russian Federation. The article concludes that the regulation of the formation and implementation of the state land policy obviously cannot be carried out without the legislative framework of this activity of the state. At the level of the Federal law, both the concept of state policy in this area and the main goals, tasks and tools should be defined. Thus, the subordination of the activities of state authorities to the law should be emphasized, the disunity of the legislative and normative-political bases of regulation of land relations, as well as the implementation of strategic planning and implementation of the state socio-economic policy should be overcome.
land relations, Federal policy, legal regulation of land relations, Russian Federation.
Kuchinskaya A. V., Galinovskaya E. A. Legal Features of the Formation of State Policy in the Field of Land Management. Journal of Russian Law, 2020, no. 2, pp. 126—135. (In Russ.) DOI: 10.12737/jrl.2020.022
Anisimov A. P., Ryzhenkov A. Ya. Land function of the modern state. Moscow, 2012. (In Russ.)
Aver'yanova N. N. Constitutional and legal regulation of land relations in the Russian Federation. Ed. by G. N. Komkova. Moscow, 2017. (In Russ.)
Chudnova E. I. Strategic planning in the field of land use: Russia and Scotland, comparison experience. Yurist, 2018, no. 4. (In Russ.)
Galinovskaya E. A. Land Legislation: Features of Formation and Development. Zhurnal rossijskogo prava = Journal of Russian Law, 2009, no. 11, pp. 14—25. (In Russ.)
Galinovskaya E. A. The concept of public strategic management of land resources (legal aspect). Voprosy gosudarstvennogo i munitsipal'nogo upravleniya, 2017, no. 3. (In Russ.)
Khar'kov V. N. The legal basis of the state land policy. Pravovye voprosy nedvizhimosti, 2013, no. 1. (In Russ.)
Kochneva I. V. Political and legal methods and mechanisms of land management in Russia. Gosudarstvennaya vlast' i mestnoe samoupravlenie, 2014, no. 12. (In Russ.)
Land law. Ed. by S. A. Bogolyubov. Moscow, 1999. (In Russ.)
Romanova O. A. Development of land legislation: issues of theory and practice. Lex Russica, 2016, no. 6. (In Russ.)
V. P. Emelyantsev, S. D. Valentey
V. P. Emelyantsev, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
S. D. Valentey, Plekhanov Russian University of Economics, Moscow 117997, Russian Federation
The term “New Arctic” is gaining ground in professional literature. It can be associated with the consolidation in the strategic planning documents of both the Arctic states and in other countries that aspire to world leadership, the projection of new relations. They may involve states, their associations, major corporations interested in the construction of seaports, mineral extraction facilities, oil and gas pipelines in this region, as well as roads, railways and airfields serving them. At the same time, the Arctic spaces are a complex subject of legal regulation. In relation to them, a complex differentiation of legal regulation takes shape: according to the sources of regulation, their legal force, territory of action and the circle of persons, by types of economic activity, and also by fixing the rights to use certain types of natural resources. In this complex subject of legal regulation, public relations can be chosen as a priority object of regulation, which relate exclusively to the competence of individual states. In particular, such relations determine the powers of states to allocate budgetary funds to support entrepreneurial activity, defense and security, and also to preserve the natural environment.
international relations, New Arctic, sources of legal regulation of Arctic relations, state support for entrepreneurial activity, legislative guarantees of investments.
Emelyantsev V. P., Valentey S. D. Arctic in the Light of the Latest Legislative Initiatives. Journal of Russian Law, 2020, no. 2, pp. 136—153. (In Russ.) DOI: 10.12737/jrl.2020.023
Arkticheskoe pravo: kontseptsiya razvitiya. Ed. by T. Y. Khabrieva. Moscow, 2014.
Avkhadeev V. R. Mnogostoronnie mezhdunarodnye soglasheniya, reguliruyushchie pravovoy rezhim Arktiki. Access from SPS “Consultant Plus”.
China pledges $10bn to Silk Road, Arctic projects in Russia. Available at: https://gbtimes.com/china-pledges-10bn-to-silk-road-arctic-projects-in-russia. 2018, June 13. (accessed 25.01.2019).
Ilulissatskaya deklaratsiya pyati gosudarstv, pribrezhnykh k Severnomu Ledovitomu okeanu 2008 goda. Arkticheskiy region: Problemy mezhdunarodnogo sotrudnichestva. Ed. by I. S. Ivanov. Moscow, 2013.
Mattis J. America's got to up its game in the Arctic. Available at: https://www.reuters.com/article/us-usa-military-arctic/americas-got-to-up-its-game-in-the-arctic-mattisidUSKBN1JL2W4 (accessed 23.01.2019).
Melkov G. M. Ne otdavat' Arktiku. Available at: http://www.soldatru.ru/read.php?id=796.
Pressa Britanii: chto, esli Ukraina povtoritsya v Arktike? Available at: https://www.bbc.com/russian/features-40809983 (accessed 23.01.2019).
Privetstvie Ministra inostrannykh del Rossii S. V. Lavrova uchastnikam yubileynogo meropriyatiya po sluchayu 10-letiya Ilulissatskoy deklaratsii. Available at: http://www.mid.ru/web/guest/foreign_policy/news//asset_publisher/cKNonkJE02Bw/content/id/3231254.23.05.2018 (accessed 23.01.2019).
Secretary General stresses value of Nordic Defence Cooperation in visit to Sweden. Available at: https://www.nato.int/cps/en/natohq/news_124506.htm.
Vylegzhanin A. N. Pravovoe polozhenie arkticheskogo regiona v dokumentakh. Arkticheskiy region: Problemy mezhdunarodnogo sotrudnichestva. Ed. by I. S. Ivanov. Moscow, 2013.
Zagorskiy A. V., Todorov A. A. Z-14 Kompleksnoe upravlenie morskim prirodopol'zovaniem v Arktike: doklad RSMD No. 42/2018. Ed. by I. S. Ivanov. Moscow, 2018. Available at: http://russiancouncil.ru/activity/publications/kompleksnoe-upravlenie-morskimprirodopolzovaniem-v-arktike/ (accessed 30.01.2019).
R. I. Sednev, E. A. Shatalov
R. I. Sednev, Siberian Main Branch, Bank of Russia, Novosibirsk 630900, Russian Federation
E. A. Shatalov, Novosibirsk Law Institute (branch), National Research Tomsk State University, Novosibirsk 630007, Russian Federation
The article is devoted to the issues of legislative and law enforcement practice in the criminal prosecution of war criminals in the period of the formation of international criminal law, as well as issues related to the conviction of war criminals of the Second World War (principles, procedure and features). The problems of qualifying the unlawful acts of the fascist troops through the prism of the modern crime composition concept are consecrated. The subject in this study is also the criminal rule-making activities of the German High Command. The analysis is based on the most important statements, notes, directives, orders and other legislative practices of the USSR and allied states of the anti-Hitler coalition, as well as the work of A. Traynin, who was a consultant to the Soviet prosecution at a military tribunal.
The goals and objectives of the study are the analysis of fundamental legal acts before and during military period, due to which the foundation is laid in the creation of international criminal law. The article analyses the fascist command orders and the definition of a subject of an international crime. It also considers possible ways to qualify acts as crimes and their jurisdiction.
The research methods are the formal-logical method, the method of structural analysis, the method of comparative research.
The author reviews and analyzes the criminal rule-making activities of the German command, gives examples of declassified orders and directives, which are bases for the conclusion that the approach to understand the subject of international criminal prosecution can be expanded to political and state institutions. Also it is considered that legal features of the Nuremberg process should contribute to the procedure for the extradition of war criminals and the methods of their legal protection. An objective analysis of the approach to justice and the decisions taken by the Nuremberg Military Tribunal is proposed.
international law, international crimes, criminal liability, responsibility of war criminals, Nuremberg military tribunal, Nuremberg process, rule-making of the war period, anti-Hitler coalition.
Sednev R. I., Shatalov E. A. Features of the Criminal Prosecution over the Nazi German Military Command against the Formation Background of the International Criminal Law. Journal of Russian Law, 2020, no. 2, pp. 154—163. (In Russ.) DOI: 10.12737/jrl.2020.024
Foreign policy of the Soviet Union during the Patriotic War. Moscow, 1946. Vol. 1. 803 p. (In Russ.)
Guidelines for economic management in the newly occupied eastern regions. Berlin, 1941. Available at: http://samlib.ru/b/borisow_aleksej_wiktorowich/njurnbergskijprocesssbornikdokumentowprilozhenija.shtml#TOC_id203379203 (accessed 01.02.2019). (In Russ.)
Lukashuk I. I. International Responsibility Law. Moscow, 2004. Available at: https://search.rsl.ru/ru/record/01002429876 (accessed 01.02.2019). (In Russ.)
Note by People's Commissar V. M. Molotov “On the atrocious atrocities, atrocities and violence of the Nazi invaders in the occupied Soviet regions and on the responsibility of the German government and command for these crimes”. Available at: http://samlib.ru/b/borisow_aleksej_wiktorowich/njurnbergskijprocesssbornikdokumentowprilozhenija.shtml#TOC_id203379203 (accessed 01.02.2019). (In Russ.)
Nuremberg trials, collection of documents (Appendices). Available at: https://royallib.com/read/borisov_aleksey/nyurnbergskiy_protsess_sbornik_dokumentov_prilogeniya.html#0 (accessed 01.02.2019). (In Russ.)
Nuremberg trials. Moscow, 1987—1999. Vol. 8. Available at: http://militera.lib.ru/docs/da/np8/index.html (accessed 01.02.2019). (In Russ.)
Poltorak A. I. Nuremberg trials, main legal issues. Moscow, 1965. 352 p. (In Russ.)
Raginskiy M. Yu. The main procedural issues of the organization and activities of international military tribunals in Nuremberg and Tokyo. Cand. diss. thesis. Moscow, 1950. 16 p. (In Russ.)
Traynin A. N. Nazi criminal liability. Moscow, 1944. 105 p. (In Russ.)
Valeev R. M., Kurdyukov G. I. International law. Moscow, 2017. 496 p. (In Russ.)
Zvyagintsev A. G. The main process of mankind. Reporting from the past. Looking to the future. Moscow, 2012. 231 p. (In Russ.)
A. M. Tsirin, S. N. Matulis
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian Federation
The article is devoted to one of the topical issues of anti-corruption, the need for research which has been consolidated in the National anti-corruption plan for 2018—2020. Moreover, the prospects for the legal construction of the conflict of interest in the framework of the development of modern anti-corruption legislation are positive due to the emergence of new areas of its application within regulation that involves public relations, for example, the procurement.
The latent forms of affiliation appear in a wide variety of situations leading to conflict of interests. Due to this it is necessary to achieve the goal of conducted research through analysis of normative legal acts dedicated to the definition, identification and resolution of conflicts of interests, and existing practices and case studies in this area.
The authors of the article use analysis, synthesis and comparative legal methods of research.
It is important to note that the current legislation hasn't yet created a solid basis for the use of methods to identify hidden affiliation. Therefore the authors provide examples of areas with a high risk of hidden affiliation and possible ways to eliminate and minimize it. In the article, taking into account the experience of foreign countries, proposals are formulated to improve the current legislation in order to increase the effectiveness of identifying conflicts of interest and hidden affiliation by providing the employer's representative, the employer, along with certificates of income, property and obligations of a property nature, and certificates of private interests.
corruption, conflict of interest, hidden affiliation.
Tsirin A. M., Matulis S. N. The Concept of Hidden Affiliation and Methods for its Identification. Journal of Russian Law, 2020, no. 2, pp. 164—174. (In Russ.) DOI: 10.12737/jrl.2020.025
Belyaeva O. A. Purchasing conflictology. Auktsionnyy vestnik, 2018, no. 387. (In Russ.)
Combating Corruption: New Challenges. Ed. by T. Y. Khabrieva. Moscow, 2016. (In Russ.)
Gabov A. V. Transactions with interest in the practice of joint-stock companies: problems of legal regulation. Moscow, 2005. 412 p. (In Russ.)
Khorunzhiy S. N. Affiliation as a condition for the emergence of conflict of interest in public law sphere. Monitoring pravoprimeneniya, 2016, no. 1 (18), pp. 67—72. (In Russ.)
Kolomeets N. A. Methods for identifying signs of a conflict of interest in the state civil service (for example, hidden affiliation). Available at: http://www.finexg.ru/metody-vyyavleniyapriznakov-vozniknoveniya-konflikta-interesov-na-gosudarstvennoj-grazhdanskoj-sluzhbena-primere-skrytoj-affilirovannosti/. (In Russ.)
Konov A. V. Main approaches to regulating the “revolving door”: international experience. Available at: https://www.hse.ru/science/scifund/ind2009-rep. (In Russ.)
Legal models and reality. Ed. by Yu. A. Tikhomirov, E. E. Rafalyuk, N. I. Khludeneva. Moscow, 2014. 280 p. (In Russ.)
Molotnikov A. E. Liability in joint-stock companies. Moscow, 2006. 240 p. (In Russ.)
Nozdrachev A. F., Glazyrin T. S., Kozlov T. L. et al. Conflict of Interest at the State and Municipal Service and in Organizations: Causes, Prevention, Management. Moscow, 2016. 224 p. (In Russ.)
Tsirin A. M., Sevalnev V. V., Cherepanova E. V., Matulis S. N., Matveev V. V. Law Against Corruption: Mission and New Trends. Journal of Foreign Legislation and Comparative Law = Zhurnal zarubezhnogo zakonodatel'stva i sravnitel'nogo pravovedeniya, 2019, no. 3, pp. 124—139. (In Russ.)