No 3 (2015)

Cover Page
Articles
Private interests in the economy and the problems of administrative and legal impact on them
Saidov Z.A., Yastrebov O.A.
Abstract
The article refers to the fact that business as a stand-alone phenomenon, in principle, is organized on the basis of its own rules and principles established by the subjects of these activities independently, and the agreement as a tool for regulating private law relations of economic entities is, in principle, the main regulator of their relationship. If implementation of the interaction between two private business entities actually performed under private law, which defines a set of reciprocal rights and duties, it is still for the most of the possibilities of such cooperation necessary to observe a number of administrative and legal requirements exposed to public law. Even the implementation of a purely private-law transactions presupposes the existence of the status of the entrepreneur, which is acquired through registration as such in accordance with the law, that is, through administrative and legal relations. In addition, it is noted that in the modern rule of law standard material, which we refer to private law, also developed with the direct involvement of public authorities. The intervention of public authorities in the activities of non-state actors sector is caused by the need to protect rights of others and constitutional values, which can potentially be violated by economic entities of non-state sector of the economy. The article states that the administrative and legal status of subjects of the non-state sector is heterogeneous, which explains the differentiated approach to the administrative and legal pressure on private businesses. The authors conclude that the administrative and legal impact on the interests of private law is carried out not only through direct administrative methods of legal provisions, but also through indirect economic, financial, and material, etc. measures.
RUDN Journal of Law. 2015;(3):9-22
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The further development of regulation of the mandatory financial monitoring in Russia
Proshunin M.M.
Abstract
The Russian system of anti money laundering was set up in 2001. Now the financial legislation of financial monitoring is a very dynamic part of Russian financial law. However, the author suggests to deregulate some law provisions covering mandatory monitoring procedures due to their inefficiency. Most of the operations and transactions sent to the Federal Financial Monitoring Service, has nothing to do with money laundering and financing of terrorism, and in most cases can be treated as an information garbage. Criterion operations subject to mandatory monitoring is defined by the legislator in the following way: deposit of funds into individual accounts opened in the authorized bank by the prime contractor for delivery of products under the state defense order, or by the executor who is involved in the supply of products under the state defense order for the execution of the state defense order in accordance with the Federal law dated on 29 of December, 2012 № 275-FZ «On the State Defense Order» from any other accounts, transactions on withdrawal of funds from these separate accounts to any other accounts, transactions on the first placement of funds to these separate accounts with other separate accounts are subject to mandatory control, if the amount of transaction is equal to or exceeds 600 thousand rubles (equivalent in foreign currency). Also the author determines the further steps of development of financial monitoring in Russia and suggests the possible solutions of the current legal issues of financial monitoring.
RUDN Journal of Law. 2015;(3):23-28
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Legal regulation of Islamic banks in Russia
Yastrebov O.A., Batyaeva A.R., Hajiyev A.A.
Abstract
Forty years ago in the Islamic states of banks (credit institutes in our understanding) wasn’t since laws of Sharia consider issue of money under percent a grave sin. Now in the world there are more than 300 Islamic banks, their general assets exceed 500 bln. dollars of the USA with a growth from 10 to 15 percent a year (data of UBS Swiss Bank which opens at itself Islamic department). According to Sharia, the Islamic bank can’t invest money in some forbidden types of activity: production and sale of alcohol, gaming houses, and other restrictions of an ethical sort. Islamic banking is fundamentally oriented to real economy, to real production and to allowing for speculation. One of the interfering factors influencing implementation and development of Islamic banking in Russia is the low awareness of professional participants of the financial market, and also the population in general, about structure and the principles, functioning of the specified banking. The potential base of clients in Russia is, and the first experiences confirm it. However, the problem can be solved adjustment of the Russian legislation, creating thereby favorable conditions, both for local, and for foreign investors for implementation and promotion of an Islamic bank system. Creation of the relevant coordinating structure and mutual tolerance is required.
RUDN Journal of Law. 2015;(3):29-33
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Information on human aura as an object of legal regulation of the Federal law «On personal data»
Ivanskiy V.P.
Abstract
This article reveals the problem of legal regulation of private personal information. The problem occurred in connection with development of new technologies that allow capturing the features of the subtle-matter shell being the human aura. The technology of gas discharge visualization (GDV), based on the Kirlian effect, makes it possible to observe the human aura, to register its stable and repeated properties on a special film, as well as to process such registered personal information by means of software programs, and to store it in the computer memory. Moreover, it is possible to identify the subject of such information according to the unique parameters of vital (mental) energy of the person - energy features of the aura of an individual that are captured in the picture, i.e. Kirlian photography. However, the Federal Law of 27 July 2006 No. 152-FZ «On Personal Data» solely regulates legal protection of information relating to physiological and biological features only of the physical body of an individual, while not regulating information in the form of GDV-images of his subtle-matter shells (bodies) captured with the help of modern equipment. For this reason, the author studies the patterns of the energy-informational structure of a human in order to find out, the information of which shells, constituting the aura, is captured by GDV. As a result of the conducted research, firstly, the author chose a septenary pattern of the energy-informational structure of a human, out of which the personal data only of physical, ethereal and astral bodies can be captured by the GDV method and be processed by special software. Secondly, the author prepared a legislative proposal to expand the list of categories of biometric personal data by adding a new type being the energy personal data.
RUDN Journal of Law. 2015;(3):34-45
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Simplified model of business companies in Germany: features and benefits
Kirsanov A.N.
Abstract
The article deals with the introduction of the German business company with limited liability - Unternehmergesellschaft. UG is not a new legal form, but is actually a special variant of a limited liability company. It is proved that the establishment of UG allows to start business quickly and later gradually develop it to a full limited liability company without the need to re-register. In order to enhance the international attractiveness of the GmbH provides opportunity to transfer management of the company abroad. It is noted that the German limited liability companies got opportunity to choose the location of the governing body, which can now be located outside Germany, and which differs from the place of registration of the company in Germany according to memorandum of association. Changing role of the list of participants of the company, the revised list of responsibilities of the manager and the notary against him are reviewed. A number of provisions aimed at combating abuse, in practice, widespread, especially in the case of bankruptcy of the company is analyzed. The article provides information that in order to prevent the practice of evading receipt of court documents, for checking the company now it is required to entry into the register of reliable and affordable to deliver information and documents address in Germany. The author concludes that in general the changes in legislation in 2008 were aimed, first, at simplifying and speeding up procedures for the establishment and registration of limited liability companies; secondly, to increase the attractiveness of the organizational-legal form; thirdly, to combat abuse.
RUDN Journal of Law. 2015;(3):46-49
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Realization of lawyer’s stance on cases concerning traffic accidents in civil proceedings
Domanov V.N.
Abstract
The article deals with the question whether realization of position is an independent advocate’s activity type, which can not always develop in strict accordance with the originally chosen tactics and strategy of representation. The author rejects simplicity of cases of road accidents. In some cases of traffic accidents not only insurance companies, but more than two legal entities and individuals, third party can defend proceedings. In some cases at the request of the parties autotechnical expertise, using the results of forensic examinations is appointed by the court. Lawyer has to significantly change the originally selected position in the course of reviewing such cases and in general cases of accident essentially remedial action in response to opponents and (or) of the court. The article presents different approaches to the definition of the stages of work in cases of accidents. It analyzes issues of evidence in cases of accidents. Even if the information confirming the accuracy of the facts relevant to the case, is not enough according to lawyer’s opinion, but it exists, lawyer, in consultation with the client, should appeal to them in the process. Lawyer realizing position on the case should be remember that the evaluation of evidence, which is a logical activity, is ultimately reflected in the findings, conclusions, entailing the adoption of procedural decisions. The conclusion is that different types of cases of an accident have different evidences and even the process of proof. Result of author’s analyzes of judicial practice suggests that the most common cases of road accidents are disputes over compensation for damages under the insurance.
RUDN Journal of Law. 2015;(3):50-58
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Double standard as the method of intellectual discourse (is Russia the «occidental» civilizations antipode?). Part 2
Klishas A.A., Eremyan V.V.
Abstract
The complex analysis of modern world political reality in the context of consideration of an actual The article deals with the comparative legal analysis of trends more and more evident in works of foreign (mainly European and North American) scientists, whose non-critical estimations only exacerbate the systemic crisis in many spheres of public relations which significantly increases fundamental contradiction between the West and the East. Using the methods of historicism and comparativism, permanent deepening stagnation of «Western» model of democracy (both socio-economic and political point of view), which for several centuries was the «locomotive» of Christian civilization, and than was replaced by ideological, ethical and religious surrogates of multiculturalism and tolerance, is stated. According to the authors, the paradox is that the crisis in the most important spheres of public and private law relations is determined by a number of factors arising from the process of liberalization of those areas of human activity, the taboo nature of which several decades ago did not cause any objections. Globalisation - as a system process - encouraged actualization of such a phenomenon as «legal imperialism» (as component of which «legal colonialism» should be considered), the answer to which has become a large-scale radicalization of terrorist organizations, religious fanaticism and nationalist extremism. Unfortunately, neither the Anglo-Saxon nor the continental law system (without mentioning international law), despite some positive trends, failed to adequately respond to the demands of the day, thus only strengthen the negative component of the «Western» civilizational paradigm. Apart from North Africa, it is most clearly manifested in the Ukraine, where the scientists, ignoring the theory and practice of the historical process, actively rewrite and edit historiography of «independent state», thereby seeking to justify the «relevance» of the February coup. That is supported by foreign researchers, who increasingly actualize mechanisms of this kind to justify Russophobian concepts and doctrines of anti-Russian. Not wanting to give up the practice of double standards, representatives of Western scientific thought continue to provide a powerful ideological pressure on those who have traditionally been associated with the so called electorate, in a majority superficially knowing the history of even their countries. Propaganda substitutes science, giving priority to a wide range of myths, presumptions and unfounded ascertainings which no one calls into question. Aim of the article is using the methodology of comparative legal analysis to show the falsity of the scientific and ideological stereotypes existing in foreign and domestic political science.
RUDN Journal of Law. 2015;(3):59-74
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Legal globalization and internationalization of higher education: the constitutional and legal aspect
Korovyakovskiy D.G.
Abstract
Author made an attempt to understand the place and role of the constitutional and legal fundamentals (Constitution and other constitutional laws), which proclaim the right for the education and regulate the implementation of the right for higher education (on the example of the Russian legislation) in the global process of the internationalization of the institution of education in general and higher education in particular. The policy objective of modernization of education in the medium term is to ensure Russia's competitiveness on a global level. This goal is achievable, if it is be possible in the coming years to ensure the optimal ratio of cost and quality in the fields of education and science, as well as effective mechanisms for the constitutional and administrative and law management of the institutions of higher education in Russia. Relations arising in the field of public administration in the field of higher education, as well as the main subject of this relationship - school, are constantly at the center of scientific interest, which is understandable on the basis of the important role, assigned to them in society in terms of administrative and legal reform in Russian Federation. In majority of the national public education system at the constitutional level vocational school focused not on simple reproduction (an increase in) of the labor force but is directly related to the world of work, sector of the economy, scientific and technological progress.
RUDN Journal of Law. 2015;(3):75-79
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Constitution as a legal instrument of society: issues and trends
Grudtsina L.Y., Lagutkin A.V.
Abstract
In the article there is an attempt to understand, taking into account the historical experience, the social, legal and economic nature of the Constitution as a legal management tool, issued in the end of the XVIII century, which has a dual nature. On the one hand, the historical appearance of the Constitution as a legal act related to the socio-economic (structural public) shifts (revolutions) in developing societies, when the Constitutions replaced the monarchs and were a tool of society, which was negotiating with the state. On the other hand, the evolution of the spirit of the Constitution over the past two centuries almost completely changed its content, when it is not society dictates its terms to the state, but the state with the help of the Constitution establishes for the society those or other requirements, obligations, legal boundaries. From the subject of management society is transformed into an object of management, and the state, which once acted as a control object, becomes the subject of management. In this regard, according to the authors, it is necessary to consider the suitability of this instrument of management (Constitution) to the changing realities. Social Contract may become a desired national idea of Russia, uniting the state and society and contributing to the development of democracy at its best.
RUDN Journal of Law. 2015;(3):80-85
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Local government as one of the constitutional system of the Russian Federation (the modern aspects)
Ezhevski D.O.
Abstract
In this article author analyzes the development of local government as one of the foundations of the constitutional system of the Russian Federation. This institution has a serious impact on the entire history of the state, and is especially important in today's society. however, there are a number of features of local authorities today. Based on the analysis the author proposes a number of measures to harmonize the existing legislation. Practice has shown that the local government as an institution of direct democracy and public participation in addressing important issues are extremely important, but still not enough to effectively functioning in our country. In any country the ability of local authorities to effectively perform their tasks largely depends on how they are organized. With regard to the mechanism of local government, first of all, means the creation of an appropriate system of local self-government, the development of these structures, the establishment of competence of each of them, selection and placement. In view of the evolution of the institution of local self-government in Russia, it should be noted that in the process of democratization of the society, this institution has an impact on all the historical path of development of the state.
RUDN Journal of Law. 2015;(3):86-91
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Relations and their role in the realization of the right
Shagieva R.V.
Abstract
Thе article criticize the concept of the right «is involved» from the standpoint of the general theory of law in the legal rationale for enforcement of the right processes. As the only channel through which the law is brought to life, the legal relations have a complex structure, in the disclosure of which the author presents his own position with respect to its constituent elements. It is proved that the main purpose of relationship is that it acts as a channel-specific implementation of the law. It is proved that the consistency of the individual will with the public, their general thrust contribute to the unity of legal and factual content of these social relations, contribute to the implementation of planned by the legislator to everyday life at all stages of the processes occurring at the same time. Elements of the legal relation are distinguished: legal entities; subjective rights and legal obligations; good behavior; object relationship; legal fact. In the article it is concluded that without these elements, considered in systemic unity with the subjects of legal relations and forms a specific legal integrity called legal relations can not be a theoretical model of enforcement of the right.
RUDN Journal of Law. 2015;(3):92-99
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The state, the people and civil society in Russia
Grebennikov V.V.
Abstract
In Russia, which for centuries has historically been one of the most brutal of monarchies in the world, which survived the Soviet era and the totalitarian regime, the role of the state and its influence on many processes can not be overestimated. The state in Russia continues to control many aspects of the non-state being. Whatever police and totalitarian the state is, civil society still is a part of it's foundation. As the state can not exist without civil society, and civil society is unthinkable without the state. The article presents the various meanings of the term «civil society». Difference between the concepts of «the people» and «nation» is analyzed, definition of each of these terms. The article lists the causes of anomie and removed the need for social responsibility is removed. The conclusion is that civil society is not just a collection of elements, or even just a system of interacting with each other and developing the elements, but also a part of the state in its broadest sense, and a part of the socio-political organization of state power. The role of social responsibility as a social phenomenon, which defines the limits of permissible activities of individuals, groups and organizations in society, and therefore - is an indicator of the possibility of self-regulation of society of their relationship is displayed. It is concluded that the freer and more intense will develop man, individuals, people of a particular state (as elements of the social system of the state), the faster it will develop (in some areas) to move to self-development and the formation of civil society institutions.
RUDN Journal of Law. 2015;(3):100-112
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Features of questioning children under 7 years
Bertovsky L.V.
Abstract
The article deals with some aspects of the interrogation of children under 7 years. According to forensic and investigative practice, when deciding whether to prosecute and conviction by the court for committing these crimes, a great influence on the investigators and judges have the testimony of child victims, who are the cornerstone of the prosecution. For using the information received from a minor as an evidence in court, it should only be obtained in the process of interrogation, with a corresponding registration of the protocol. At the same time not only investigator but also child’s legal representative, a psychologist and educator have to take part in process of investigative action. The article concludes that the peculiarity of the interrogation of minors is not to premature assess the validity of received information but to help getting the most comprehensive, accurate information by the methods and techniques that consider characteristics of the child. This article discusses the methods that are no so far widespread, although they are based on practical experience, and their effectiveness is confirmed by studies conducted in the investigation of grievous and extremely grievous crimes in the Russian Federation. The main recommendations for the organization of such investigative actions are formulated in accordance with the child’s cognitive development. Carrying out monographic studies on this subject would give a hand to employees in the investigative units, prosecutors, investigators, and it would be useful for students, teachers, scientists, representatives of law schools, as well as people who are interested in the issues of criminology and psychology. Taking into consideration that the process of obtaining information from an interrogee is based on objective laws of psychology and criminology, it seems that the findings can be used not only in the practice of Russian law enforcement agencies but also in other countries.
RUDN Journal of Law. 2015;(3):113-133
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Our authors
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Abstract
RUDN Journal of Law. 2015;(3):134-135
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