Vol 24, No 2 (2020)

CONSTITUTIONAL AND MUNICIPAL LAW
THE DUALISTIC MODEL AND “RATIONAL CENTRALIZATION” AS FACTORS OF THE EFFECTIVE FUNCTIONING OF LOCAL GOVERNMENT WITHIN THE RUSSIAN PUBLIC AUTHORITY MECHANISM
Chikhladze L.T., Larichev A.A.
Abstract

The analysis is given on the correlation of state power and local government within the public power system of Russian Federation. The authors note that the interaction of relevant elements can be described as a dualistic model, based on a combination of centralization and decentralization principles. It is maintained, that the principle for interaction between state authorities and local government, especially in light of recent constitutinal amendments, should rest in clear delineation of functions and powers, excluding their arbitrary and unreasonable redistribution. It is also noted that for the effective functioning of local government, interaction between central and local authorities is important, based on the support of the latter by the state. State intervention implies the concept of “rational centralization”, which envisages strengthening state role in the implementation of both organizational and functional foundations of local government in strictly limited cases and without violating Art. 12 of the Russian Constitution.

RUDN Journal of Law. 2020;24(2):233-251
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CONSTITUTIONAL AND MUNICIPAL LAW
LOCAL ACTS OF UNIVERSITIES AS A MEANS OF COMBATING CORRUPTION
Gabov А.V., Yastrebov О.А.
Abstract

The purpose of the article is to analyze such a relatively new legal means of combating corruption as codes of ethics. The authors note the harm caused by corruption in higher education; they point out that such harm is cumulative. It is noted that currently the legislation is not limited to combating corruption in public authorities. The anti-corruption law since 2012 defines the obligation of each organization to take measures to combat corruption and take the necessary measures to do so. The authors conclude that more and more attention is being paid to the proper performance of this duty by organizations. At the same time, the mechanism for implementing provisions of ethical codes is closely intertwined with other anti-corruption tools used by universities. It is also noted that the provisions contained in the ethical codes lose their nature and “grow” into legal norms.

RUDN Journal of Law. 2020;24(2):252-273
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LEGAL REGIME OF CREATION OF A SECURE DIGITAL EDUCATIONAL ENVIRONMENT
Bokova L.N.
Abstract

The relevance of the four-part article is that it examines the legal aspects of the use of information technologies in education, as well as their security, which is the legal basis for regulating these relations. Meanwhile, it should be noted that in recent decades insufficient attention has been paid to these problems in scientific works on jurisprudence. In legal studies the legal constructions of the concepts of “Internet addiction”, “digital educational environment”, “online training”, “digital infrastructure”, etc. have not yet been investigated. The purpose of the study is: 1) to determine the actual directions for improving legislation on the information security of the educational environment; 2) to substantiate the point of view according to which it is necessary to create and implement programs to educate children and adolescents on the rules of safe behavior in the Internet space and to prevent Internet addiction; 3) to better understand the term “safety of the educational environment”. In the research process, a diverse set of methodological tools was used: 1) general philosophical methods (dialectical and idealistic); 2) general scientific methods - analysis and synthesis, deduction and induction, analogy, comparison; 3) private (special) methods - logical, comparative legal, formal legal, normative dogmatic; 4) method of interpretation, including a method of problem-theoretical reconstruction. The paper analyzes the main regulatory documents that are used to implement the digital educational environment. The main results of achieving the goal of the study are proposals on: 1) introduction of the concept of “safety of the educational environment” into the scientific circulation of jurisprudence; 2) relevant legislative initiatives in this area. The theoretical significance of the study. The paper discusses the legal relations prevailing in the field of using information technologies in education, proposes the author’s definition of the legal regime for creating a modern and safe information educational environment. The author formulated priority areas for improving this activity. The indicated research results can be used to improve the science of information law.

RUDN Journal of Law. 2020;24(2):274-292
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ADMINISTRATIVE AND FINANCIAL LAW
LEGAL SUPPORT OF STATE INTERESTS IN THE TAX SPHERE (CONCEPTUAL ASPECT)
Narinyan L.M.
Abstract

At the heart of the problem under consideration there is a conditional paradox with taxes in the minds of people. It consists in that everyone understands that taxes must be paid, but in the minds of many people taxes are perceived as an unnecessary duty. The reason for this contradiction, in our opinion, lies in the unsolved deep problems connected with the existing deficiencies in the taxation mechanism, inadequate manifestation of the goal-setting in the tax activity of the state, and in the absence of a balance of private and state interests in the field of taxation, which generally negatively affects the state of the economy and in general life of society. In our opinion, in order to identify ways to overcome these shortcomings, several new elements should be formulated in the concept of tax law. First, it is necessary to expand the range of elements included in the object of legal support of tax revenues by considering a number of external and internal factors that determine the nature of taxation. Primarily, it envolves taking into account the interests of all participants in the tax sphere, including the whole society as a beneficiary of tax revenues. In this regard, efforts have been made to identify the essential nature of the category of “state interests” as an element of the dialectical relationship between personal, public and state interests, and on this basis to determine the criteria and substantial elements of the state’s activities goal-setting, which must be guided by in taxation, being simultaneously a separate tax law institution. The role of balancing the interests of the state and taxpayers is highlighted as a principle of ensuring the interests of the state in the tax system and at the same time as a criterion for proper goal-setting within the framework of the system involving principles of financial and legal support of state interests in tax sphere. The foundations of the procedure for establishing goal-setting as a special legal institution in the tax law system are highlighted; unresolved issues of the legal status and functioning of authorized state entities obliged to ensure state interests in this area are identified. The theoretical significance of the work lies in that it analyses the content, development and main features of the manifestation of the state interests in the field of taxation, formulates a proposal to introduce the goal-setting institution in-to the doctrine of tax law as a way to ensure the interests of the state in the process of regulating tax relations. Understanding of the tax according to its social nature as a way of monetary participation of society members in solving common affairs is proposed. At the same time, tax is a matter of concern for the personal interests of a payer about solving common problems. It is this factor that should determine the order of its legal regulation. Since conclusions and provisions proposed in the work are based on the application of interest in all its forms, which has not yet been worked out in tax law, additional studies on this topic are required. The theoretical basis of the study are the provisions on the institution of goal-setting, which assumes a focus on achieving state interests in functioning of the tax system of the Russian Federation. The research methodology is based on general scientific methods (analysis, synthesis, description, systematic approach), particular scientific methods (formallegal, comparative-legal, historical-legal), and other techniques. The analysis method allows to rethink the methodological aspects, and theoretical and conceptual approaches to the concept of state interests in tax sphere assist to formulate and clarify some of its features. The systematic approach contributs to the disclosure of the holistic conceptual nature of goal-setting as a separate institution of tax law. The application of the formal legal method makes it possible to analyse the current legislation of the Russian Federation and the practice of its application in the field of tax legal relations regarding ways to achieve a balance of interests between a taxpayer and the state. Application of the historical - legal method allows to identify features inherent in realization of the state interests in the tax sphere.

RUDN Journal of Law. 2020;24(2):293-313
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BEHAVIOURAL SUPERVISION OF THE BANK OF RUSSIA IN PROTECTION OF FINANCIAL SERVICES CONSUMERS' RIGHTS
Mikheeva I.V., Dolkova E.A.
Abstract

The article is devoted to a new type of supervision of financial market participants - behavioral supervision of the Bank of Russia. Behavioral approach to the protection of financial services consumers’ rights is treated in the “zone of action” of the administrative-legal regulation mechanism. The authors point to the public nature of the subject composition of its implementation (the Bank of Russia and the executive authorities); the possibility of using the judicial (consideration of citizens' appeals) and (as a result) jurisdictional (bringing the violators of the financial services consumers’ rights to administrative responsibility) procedural administrative and legal algorithms. The article outlines the types of the behavioral supervision regime of the Bank of Russia. Reactive behavioral supervision is a reaction of the Bank of Russia to complaints or received information about unfair behavior of the financial company towards the consumer. Preventive behavioral supervision is associated with the prevention of serious violations of citizens’ rights by supervised organizations. Particular attention is paid to consumer risks, the identification of which is one of the goals of behavioral supervision. Supervisory behavioral aspects are closely associated with the financial consumer protection as an important part of the control and supervising activity of the Bank of Russia. Also, the authors analyze the goals and content of behavioral approach to the financial management aimed at minimizing unfair practices. To gain the aim of the research the authors apply general scientific methods (synthesis and analysis, induction and deduction, generalizations) and special methods (formal-legal method). By using general scientific methods and formal-legal method authors investigate the organizational and legal basis for the implementation of behavioral supervision in Russia and determine its advantages and disadvantages. The study expresses assertion that there is the need to place behavioral supervision in the legislative framework, to formulate a definition of behavioral supervision, to clarify the scope and powers of the subjects of its implementation, to determine the content of administrative procedures for the implementation of various types of behavioral supervision within the framework of the interaction of the Bank of Russia and the executive bodies involved in its implementation.

RUDN Journal of Law. 2020;24(2):314-334
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THE DEVELOPMENT OF THE LEGAL FRAMEWORK FOR “GREEN” FINANCE IN RUSSIA, THE EU AND CHINA: A COMPARATIVE LEGAL ANALYSIS
Ermakova E.P.
Abstract

The article is devoted to the analysis of the legal regulation of “green” financing in the European Union, China and Russia. It has been substantiated that a harmonious and completed system of regulatory regulation of “green” financing has not yet developed either in the PRC or the EU. In this regard, a comparative analysis of the above issues is of particular importance. The purpose of this article is to form an understanding of the legal framework for green finance in the European Union, China and Russia based on an analysis of regulatory acts and scientific sources. The following methods have been applied: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic. Private scientific methods employed in the work are legal-dogmatic and the method of interpretation of legal norms. Results: the study showed that green financing refers to financial transactions that support the transition to an economy with low carbon emissions and the fight against climate change. In recent years, China has been the leader in green financing, accounting for 28%, or $ 32 billion, of green bonds issued in 2018. Conclusions: In the PRC, the concept and foundations of the legal regulation of green finance are enshrined in the 2016 Guide to Creating a Green Financial System. The main elements included in the concept comprise: 1) pilot areas of green financing, 2) green loans, 3) green funds and public-private partnerships; 4) green securities; 5) green insurance; 6) environmental credit trading; 7) environ-mental risks. The European Union also strives to be a global leader in the fight against climate change. A number of EU regulations and directives regulate various aspects of green financing. On December 11, 2019, the European Commission introduced the European Green Deal, a new concept for economic growth aimed at making Europe the first climate neutral continent. The most ambitious draft of this program is the development of a pan-European climate law (climate code), a draft of which is due in March 2020. Russia is still lagging behind world leaders on the regulatory regulation of green financing, but the first steps in this direction have already been taken. The study was prepared with the financial support of the Russian Federal Property Fund in the framework of the scientific project No. 20-011-00270 "а" (Scientific adviser - E.E. Frolova).

RUDN Journal of Law. 2020;24(2):335-352
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ADMINISTRATIVE AND FINANCIAL LAW
THE LEGAL STATUS OF A LAWYER IN THE RUSSIAN FEDERATION AND THE REPUBLIC OF KOREA: COMPARATIVE-LEGAL ANALYSIS
Dobryakov D.A.
Abstract

Corporations of attorneys-at-law (in Russian this term is a synonym to “advocate” and similar to “lawyer”; it means a legal professional who passed qualification exam and obtained special status of a lawyer) in the Russian Federation and the Republic of Korea passed complicated historical way and now have many common and even universal features, though circumstances of their forming were completely different. In both Russia and Korea lawyers are members of one of the most significant civil society institutions, which protect rights of their citizens, seeking legal advice or receiving such advice by other means (for example, when a lawyer was designated by investigator in the Russian Federation). Attorneys-at-law face challenges in their qualification and practical experience. Candidates for the status must pass a special test (the qualification exam), but there are some exceptions. One of the important differences is Korean law on the bar and lawyer activities regulated by the Russian legislation. If in Russia every candidate for lawyer's status must pass qualification exam without any exceptions in terms of experience and previous employment, in the Republic of Korea former prosecutors and judges have privileged position and are exempted from the examination as appropriate level of their qualification is presumed. At the same time, in the Russian Federation a candidate for lawyer's status is a priori jurist what means that he must have higher education in the field of law, while in the Republic of Korea access to the attorneys’ corporation in open to everyone regardless of the level and profile of education. However, non-jurist candidates must pass a bar exam. This article provides a comparativelegal analysis of the development and modern regulation of the legal status of a lawyer in the legislation of the Russian Federation and the Republic of Korea, examines both the differences of the legislation of the named countries, as well as common features. Besides this study is one of the first in the Russian legal science with reference to the Korean bar.

RUDN Journal of Law. 2020;24(2):353-388
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JUDICIAL CONTROL IN ENSURING THE LEGALITY AND VALIDITY OF DECISIONS TAKEN BY OPERATIONAL UNITS OF INTERNAL AFFAIRS BODIES
Babichev D.A.
Abstract

The article examines the features of judicial control in ensuring the legality and va- lidity of decisions made by operational units of internal affairs bodies. The relevance of the work is determined by an attempt to improve the legal mechanisms for the implementation of judicial control in the above-mentioned area based on the study of judicial practice, as well as legal conflicts and gaps in the current operational search legislation. The subject of the study is the system of control powers of the court: 1) verification of the legality and validity of decisions of the operational unit to conduct certain operational search activities by granting permission to the court to conduct them; 2) checking the legality and validity of decisions of the operational unit to conduct certain operational search activities according to their urgent (emergent) conduct; 3) checking the legality and validity of decisions of the operational unit to carry out operational search activities on citizens' complaints. The purpose of this work is to study the essential characteristics of the control powers of the court in ensuring the legality and validity of decisions made by operational divisions of internal affairs bodies. The methodology of the research is based on the General scientific dialectical method of cognition and the scientific methods that follow from it: system, logical, comparative legal analysis, statistical, special legal, and others. The theoretical basis of the research rests on the scientific works of V. V. Abramochkin, V. A. Azarov, Yu. M. Groshevii, S. V. Eskov, N. S. Zheleznyak, V. I. Ivanov, Ch.M. Ismailov, N. A. Kolokolov, E. L. Nkitin, I. A. Odnoshevin, R. H. Rakhimzoda, A. I. Tambovtsev, A. N. Khalikov, I. D. Shatokhin and other authoritative scientists who have made a significant contribution to the solution of doctrinal and applied problems of judicial control in the field of operational search activity. As a result of scientific analysis of judicial practice and legal literature, the author proposes a number of legal tools that affect the court's assessment of the legality and validity of operational search decisions on conducting intrusive OSM, and identifies legal conflicts that require delicate study and technical elimination. In addition, it is argued that amendments to the provisions of the Federal Law “On Operational Search Activities” aimed at preempting precedents for recognizing evidence obtained during the OSM in cases that can’t be delayed and may lead to a serious or particularly serious crime are unacceptable. The results of the study can be used in law enforcement practice of subjects of operational search activity, judges, authorized prosecutors, as well as in scientific work when analyzing problems of judicial control in the field of operational search activity.

RUDN Journal of Law. 2020;24(2):389-409
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DEVELOPMENT OF THE INSTITUTE OF QUALIFIED LEGAL ASSISTANCE IN RUSSIA AND THE FORMER SOVIET UNION
Gavrilova A.V.
Abstract

The relevance of this work is due to the modern processes of regulation of the legal services market, typical both for Russia and for sovereign States in the post-Soviet space, in order to ensure the constitutional right to qualified legal assistance. The purpose of the work is predetermined by the analysis of ideas about qualified legal assistance in a retrospective and modern sense. The research was based on normative legal acts, including monuments of law, and scientific works (academic publications, monographs) devoted to the development of legal aid. The study was carried out using a set of comparative legal methods: the diachronic method allowed us to compare the basics of legal aid that existed in different historical periods; the synchronous method made it possible to compare the legal reality of Russia with other countries. The problem-chronological method allowed to study the essential features of the evolution of ideas about legal aid that are directly dependent on the socio-cultural transformations of the political and legal system of the and interpretation of norms, implementation of which determines the modern processes of professionalization of legal aid. The study of pre-revolutionary legislation of Russia allowed us to conclude that the traditional understanding of the provision of professional legal assistance by lawyers is formed in the process of socio-cultural modernization of the legal system during the implementation of the Judicial reform of 1864. the Paradigm of legal nihilism in the first years of Soviet power resulted in lacking any qualification requirements for persons who can provide legal assistance, which predetermined the stable practice of lawyers who did not have professional education. The liberalization of legislation during the thaw period contributed to the return to traditional understanding of legal aid. The regulation of legal aid in modern States is carried out in line with the implementation of international standards in national legislation.

RUDN Journal of Law. 2020;24(2):410-437
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HISTORY OF POLITICAL AND LEGAL STUDIES
WAS J. BENTHAM THE FIRST LEGAL UTILITARIAN?
Kolosov I.V., Sigalov K.E.
Abstract

Legal utilitarianism is attractive for practice because this field of legal thought and philosophy of law sets out a particular direction of legal policy and statutory regulation (focus on the utility principle in decision-making) that can, under certain reservations, be used to improve people's lives. Most scholars conclude that the first utilitarian was J. Bentham. However, scientific studies prevalently do not involve the analysis of earlier legal doctrines in relation to the use of utility principle. Thus, the relevance and scientific novelty of analysis of the origin of legal utilitarianism is associated with the need to develop a theoretical component of this doctrine that is of current interest for the legal policy and to enlarge the underdeveloped - in our opinion - theoretical framework of legal utilitarianism genesis. The purpose is to identify the first theory in the history of legal thought, which can be classified as legal utilitarianism, and, if such theory is the J. Bentham's utilitarianism, to determine the reasons why earlier theories based on the utility principle cannot be classified as legal utilitarianism. The theoretical basis of the article is materials such as original sources by various thinkers whose works are based on the utility principle and scientific papers of European and the US researchers. For the purpose of the article, the following methodological tools were used: metaphysical (dialectic method), general (analysis and synthesis, deduction and induction, analogy, comparison) and specific (historical and legal-historical) scientific methods. The main outcome of the research is identification of distinct features of pre-Bentham legal thought based on the utility principle and identification of pre-requisites and basis (provisions which had formed the basis) for J. Bentham's utilitarianism, as well as the answer to the question: “Was J. Bentham the first legal utilitarian?”.

RUDN Journal of Law. 2020;24(2):438-471
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ON THE 60th ANNIVERSARY OF THE RUDN UNIVERSITY LAW INSTITUTE
REVIEW OF THE VI INTERNATIONAL ACADEMY “MY PROFESSION IS A LAWYER: SOCHI 2020” SOCHI, RUDN UNIVERSITY, JANUARY 27 - FEBRUARY 1, 2020
Grafshonkina A.A., Shaykhutdinova A.R.
Abstract

On January 27 - February 1, 2020, the Sixth International Academy “My profession is a lawyer: Sochi 2020” was held at the Sochi Institute of the Peoples' Friendship University of Russia, in which more than 40 researchers, practicing lawyers and law students took part. The purpose of the event was to master the methods of practice-oriented training in the profession of a lawyer, the professional skills of a lawyer (communicative, developing a position on the case, resolving legal conflicts, public speaking). This review reflects the general concept of the Academy, the progress of work and its content.

RUDN Journal of Law. 2020;24(2):472-480
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ALEXANDER ABRAMOVICH, A LIVING LEGEND
Belozerova I.I.
Abstract
This article is dedicated to one of the famous scientists, Alexander Abramovich Levi. This article reflects the personal life of A.A. Levi, i.e. pre-war and war years, his university studies, his work in the prosecutor’s office and in the Peoples’ Friendship University of Russia, as well as his scientific work. A.A. Levi was at the origin of the development and application of sound and video recording in court proceedings. Based on his project and with his direct participation the first specialized courtroom was created in the USSR. Scientific publications of A.A. Levy can be found in legal journals of Hungary, Germany, Poland, Czechoslovakia and the USA. A.A. Levi was among the drafters of the Federal Law “On Legal Practice and the Bar”.
RUDN Journal of Law. 2020;24(2):481-487
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