Vol 22, No 4 (2018)

STATE AND LAW IN CONTEMPORARY WORLD
PUBLIC INTERESTS AND LEDAL CONSTRUCTIONS DERIVED FROM THEM
Zelentsov A.B., Nemytina M.V.
Abstract

The article observes public interests, firstly, as a social regulative system in the Russian law, and secondly, as a scientific conception of law in legal science. It also researches possibilities of building legal constructions based on public interests with an aim to improve the legal regulation. Basing on the general theory of law and administrative law, the authors analyze: 1) the essence and grounds of public interests; 2) transformation of the Russian historical-theoretical conceptions of public interests; 3) modern interpretations of the phenomenon of public interests in the Russian legal doctrine, legislation and judicial practice; 4) some differences in the Western and Russian conceptions of public interests; 5) separate legal mechanics based on public interests. I.e. the authors talk about objectivating public interests, defining its forms of appearance and possibilities of implementation in the Russian society, law and state. Nowadays categories «public interest», «state interest», «social interest», «general public interests» as well as similar ones are widely used in the Russian legal science, law-making and law enforcement. The problem of its defining as well as identifying public and state interests is still not solved. The article emphasizes the absence of legal definition of public interests in the Russian legislation what causes its use as an evaluation category in the law enforcement practice. This follows by uncertainty in the legal regulation. From other side the term remains flexible and movable, helps coordinate moral and legal content, allows take into account specificity of public interests in each and every case. The article observes position of the Constitutional Court of Russia which defines correlation between public interests and similar categories, e.g. general interest. According to the authors’ opinion, public interests form legal mechanics uniting legal principles, institutes and rules. Examples of such mechanics are corporate-public regulation and public-private partnership.

RUDN Journal of Law. 2018;22(4):425-462
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HERMENEUTICS AND ITS POTENTIAL FOR CRIMINAL LAW SCIENCE
Bochkarev S.A.
Abstract

The article deals with the ideas of hermeneutics formed at the present stage in the legal science. From the point of view of the history of the formation of this trend revealed shortcomings in the existing scientific judgments about the phenomena of interpretation and understanding, as well as the degree of development of hermeneutics as of the middle ages, when the notion of hermeneutics as a science of interpretation or explanation of the meaning of words according to certain rules. Through the recess in the legacy of the founders of hermeneutics - V. Humboldt, F. Schleiermacher, F. Schlegel, W. Dilthey, G. Shpet and others - demonstrated her considerable and have not yet uncovered the potential for criminal law. The specific conceptual development of thinkers, the adaptation of which will significantly transform the idea of the criminal law, to replace quantitative with qualitative methods of measuring the harm caused by the crime, to minimize the value of arbitrary discretion in legislative and law enforcement practices, to provide an understanding of the individual's individual act on the basis of the totality of "life circumstances" of the author of the criminal law.

RUDN Journal of Law. 2018;22(4):463-480
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COMPARATIVE LAW
HEAD OF FRANCO STATE: FROM THE "SOVEREIGN" DICTATOR TO THE "INSTITUTIONALIZED" RULER
Alexeeva T.A.
Abstract

The article is devoted to the development of the institute of the head of state in Spain in 1939-1975. The importance of the analysis is determined by the increased role of the heads of state in domestic and international affairs and the popularity of the term. The Spanish experience seems to be useful for research of this phenomenon. Franco's main post was named "head of state" (Jefe del Estado) legally, and the officially recognized institution with the same name (Jefatura del Estado) formalized his status. In comparison with the "head of state" in the doctrine of Constant, he did not function in the system of separation of powers, but named a ruler with a personal absolute lifelong power. The legal term "head of state" became a synonym for the political term "dictator". Franco’s experience demonstrated the non-democratic nature of the institute of head of state. It was also emphasized by the title "caudillo", indicating its leadership and its mission to restore the former "greatness" of Spain. Franco’s government was to be characterized by the features of "sovereign dictatorship", described by C. Schmitt. By analyzing features of the institution of the post, formation of the same institute and their development, the author notices the potential of the institute of head of state during Franco's authoritarian regime. Two periods are distinguished in the history of the institute. During the first, after the Civil War (1939) and before the adoption of the law "On Succession" (1947), Franco's constitutional activity was aimed to create a "new" nationalist state, struggling against internal and external enemies. Unlimited power in a militarized state became the basis for the domination of “decessionism”, and the state itself was identified with its head personally. In the course of the second period, 1947-1975, the constitutional power of the caudillo began the "institutionalization" of a "social and representative" state which was proclaimed as a monarchy again. Franco’s "fundamental" laws not only created a quasi-constitutional facade of the regime, but consolidated the head of state's self-limited powers and its status in the system of established state bodies, a mechanism to transfer his power to the future king. Spanish state was no longer identified with the head of state. He was declared a representative of the nation and ensured the unity of state power. Franco remained an extraordinary head of state till the end of his life. The mechanism he introduced "worked" after his death in Spain and created the opportunity for a transition from an authoritarian regime to a democratic one, from "institutionalization" to constitutionalism.

RUDN Journal of Law. 2018;22(4):481-505
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THE AGE OF MARRIAGE AND AGE OF CONSENT: CROSS-BRUNCH LEGAL CONFLICTS
Barysheva K.A., Matveeva M.V.
Abstract

Currently, all over the world, including in Muslim countries, there is a tendency to increase the age of marriage. In Russia, the law does not directly set the minimum age of marriage. The reduction of the age of marriage is possible up to 16 years if there are valid reasons for it. The family laws of the subjects of the Russian Federation may establish the conditions and procedure for marriage of persons under this age. A literal interpretation of laws indicates the absence of lower age limit at marriage. The article deals with the correlation of the concepts of "marriage age" and "age of consent". Analysis of the Art. 134 of the Criminal Code allows to conclude that the provision on marriage to the victim, as a basis for exemption from punishment, contradicts the basic conditions of marriage. In fact, when making a decision, the courts cannot reliably determine for what purpose the marriage was concluded, whether there are grounds to consider the marriage fictitious, concluded for the avoidance of criminal punishment or for another selfish purpose. In criminal cases, it should be mandatory to ensure the participation of the staff of the guardianship authority in the criminal process, giving them the right to conduct inspections and to give conclusions about the real desire of the couple to create a family. It seems controversial to apply the rule of exemption from punishment due to change of the situation to the perpetrator who committed the crime under Art. 134 of the Criminal Code. The act itself does not cease to be socially dangerous: sexual relations with a person under the age of consent are still ongoing, and marriage does not entail a legal right to sexual relations with a minor under the age of 16, at least not expressly provided for by law. It is proposed to define a special obligation for the release of the guilty from punishment: if a marriage concluded with a person under the age of 16 years is terminated at the initiative of a probationer earlier than four years after his imprisonment, the court may decide to abolish the conditional sentence and the execution of the sentence imposed by the court.

RUDN Journal of Law. 2018;22(4):506-526
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JUSTICE IN RUSSIA AND FOREIGN COUNTRIES
JUSTICE IN MODERN RUSSIA: THE CONCEPT AND FEATURES
Pankova O.V.
Abstract

The article reveals the essential characteristics of justice as a specific type of state activity; identifies the main features of justice that distinguish it, on the one hand, from other types of state activity, and on the other - from other types of judicial activity. The purpose of this article is to identify and analyze the features of justice in its modern sense. The versatility of this legal category as an ambivalent definition is reflected in its various characteristics, through the consideration of which the most general definition of justice is formulated in the work. The methodological basis of the article is the modern achievements of the theory of knowledge. In the course of research theoretical, General philosophical (dialectics, system method, analysis, synthesis, deduction), traditional legal methods (formal-logical) were applied. Turning to the question of the characteristics of justice, the author touches upon the problem of its broad and narrow understanding due to the increasing role of mediation, conciliation and arbitration as alternative forms of resolution of legal conflicts, as well as in connection with the empowerment of certain state bodies of jurisdictional powers, and concludes that, unlike a number of foreign countries, justice in Russia can be carried out only by state courts. Of considerable interest is also the study of the subject area of justice, which is related to the situation of legal conflict. In this context, the author's analysis of the concept of "legal conflict" and his proposed differentiation of such conflicts into types with subsequent consideration of each of them is quite legitimate. In the context of the formation of the new Russian statehood, the arbitration sign of justice acquired a different sound, which is considered in the work from the standpoint of the special jurisdictional procedural activity of the court and the situational nature of justice. Since the beginning of the modern judicial reform, objective changes in the activities of the courts associated with the emergence of simplified and writ proceedings that have simplified the procedure for the consideration and resolution of certain categories of administrative and civil cases, as well as the allocation of jurisdictional powers to other state bodies that are not part of the judiciary, but use quasi-judicial procedures, i.e. almost judicial procedures as close as possible to them, have significantly changed the attitude to the procedural form of justice, which has lost its former importance. In this regard, the author substantiates the point of view that nowadays in order to determine the qualitative nature of the jurisdictional bodies, it is necessary to identify, in particular, the distinctive features in each of the procedural forms. Revealing in more detail the content of methods and means of justice, the author touches upon the problem of correlation of this legal category with justice and on the basis of the analysis of different points of view comes to the conclusion that these concepts can not be considered as legal phenomena that coincide in whole or in part. Justice is rather an intrinsic property of justice, contributing to its perception as a social and legal value. As one of the most important signs of justice in the work is considered the state-power nature and reliability of judicial decisions, the execution of which involves the suppression of the will (freedom) or material deprivation of one of the parties with the use in certain cases of power and force of the state. In this regard, some attention is paid to the characterization of the binding nature of the judgment as one of its essential properties. Examining justice as categories which help to reveal the contents and legal merits of this form of state activity, in the definition of the given concept into a single, unified definition.

RUDN Journal of Law. 2018;22(4):527-546
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AGREEMENTS ON ALTERNATIVE METHODS OF SETTLEMENT OF THE CONFLICTS: CHARACTERISTIC OF MAIN TYPES AND PREREQUISITES OF THEIR DEMAND
Stepanova I.A.
Abstract

In the conditions of advanced civil society there are different conflicts demanding their fast professional permission with preservation of the friendly relations between the arguing parties on the basis of an adaptive loyal algorithm of permission. Permission of the legal conflicts is traditional, protection of the rights of citizens and the organizations, the state and public interests is carried out by means of justice. At the same time the appeal to a judicial form of protection of the right is not always required and it is expedient for the business environment, especially concerning those conflicts which arise in the sphere of the civil relations. At such to circumstances conflicting parties even more often began to address alternative methods of settlement of the arising conflicts and to conclude the relevant agreements. Search of optimum model of the agreement and the corresponding alternative method of settlement of the conflict is an important practical question for which solution the corresponding theoretical developments are necessary. The main objective of article consists in the analysis of intrinsic characteristics of different types of agreements on alternative methods of settlement of the conflicts as enshrined in the domestic legislation (agreement on mediation, arbitration agreement, agreement on a claim order of settlement of disputes), not found in it reflection and based only on the created law-enforcement practice (agreement on a negotiating order, agreement on med-arb, agreement on mini-court) and identification on their basis of the factors influencing the choice of conflicting parties. The theoretical basis of a research was made by works of the Russian and foreign researchers in which separate agreements on alternative methods of settlement of the conflicts are considered (Chotsanov, 2012:77-84; Inshakova, Kazachenok 2013:66-71; Inshakova, Nikolyukin, Alekseev, 2012:176, etc.). The methodological basis of the real research is formed by general scientific methods among which dialectic, inductive, deductive, synthesis, the analysis, generalization, etc. and also private science methods (interpretative, legallistic, etc.). As a result of the carried-out analysis the features of the analysed types of agreements on alternative methods of settlement of the conflicts following are revealed from existence or lack of their standard regulation. Besides, with the author it is emphasized that a number of similarities among which there is an existence of the third neutral party, a condition about confidentiality, ways and an order of the conclusion, etc. are inherent in all considered agreements regardless of this fact. Following the results of the conducted research the author allocated two groups of the factors influencing the choice of the concrete agreement for the conclusion by conflicting parties: objective (not depending on will of the parties) and subjective (the choice of the agreement for the conclusion is based on will of the parties).

RUDN Journal of Law. 2018;22(4):547-564
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LAW AND DIGITAL TECHNOLOGIES
THE USE OF BLOCKCHAIN TECHNOLOGY IN LAW, POLITICS AND PUBLIC ADMINISTRATION
Sigalov K.E., Salin P.B., Chuvalnikova A.S.
Abstract

The article examines the existing practice of using blockchain technology in law, politics and public administration, as well as the prospects of its further use in these areas. The authors approach the problem from the point of view of a systematic approach, which allows to justify the applicability of this technology to solving the problems facing modern law, politics and public administration in a dynamically developing information society. Considering the features of blockchain technology application in each of the three selected areas, the authors establish a pattern according to which the introduction of this technology into the sphere of policy is usually preceded by its introduction into legal and bureaucratic practice. Based on the identified features and patterns of the process of introduction of blockchain technology in law, politics and public administration, the authors analyze the prospects of expanding the scope of this technology in these areas, compare Russian practice with foreign experience.

RUDN Journal of Law. 2018;22(4):565-580
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REVIEWS. DISCUSSION FORUMS
REVIEW OF A COLLECTIVE MONOGRAPH «LAWYERS AND THE REVOLUTION: PRO ET CONTRA». Moscow: Kuchkovo pole, 2017. - 552 p
Dorskaya A.A.
Abstract
The collective monograph analyzed the fate of twelve pairs of Russian lawyers, who as a result of the revolutionary events of 1917 were «on opposite sides of the barricades». Defending the position that «any controversial Constitution is better than an indisputable revolution», the authors carefully showed the contribution of representatives of different areas of political and legal thought to the development of legal science. The difficulties of the development of Russian jurisprudence are shown both in Soviet Russia and in the «Russian abroad».
RUDN Journal of Law. 2018;22(4):581-586
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XVI BLISCHENKO CONGRESS OVERVIEW Moscow, RUDN University, April 14, 2018
Aslan A.H., Denis G.A., Ekaterina K.E., Aleksandra K.V., Aleksandr S.M.
Abstract
On April 14, 2018, the Department of International Law, Law Institute, RUDN University held the annual XVI Annual Blischenko Congress. The main work of the Blischenko Congress traditionally took place in sections focused on the main branches of international law. Co-organizers of the International Congress were international organizations, representative offices and departments. This research event was organized with grant support from: Russian Foundation for Basic Research; the grant of the President of the Russian Federation for the state support of young researches; grant of the Russian Science Foundation.
RUDN Journal of Law. 2018;22(4):587-601
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WORLD CONGRESS OF COMPARATIVE LAW SCIENTISTS IN JAPAN (FUKUOKA, THE IACL WORLD CONGRESS - 2018): THEMATIC REVIEW
Trikoz E.N.
Abstract

In the article we give a description of the main areas of work of the XX Congress of the International Academy of Comparative Law, which is the largest organization of the legal comparativistics in the world.

RUDN Journal of Law. 2018;22(4):602-609
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