No 3 (2016)

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Articles
Model of Legal Progress: from “Evolution” to “Explosion”
Beljaev M.A.
Abstract
This article is devoted to legal progress and metaphors, which describes it. The author proposes to analyze two metaphors - “evolution” and “explosion”. These quasi-concepts are relevant to the study of dialectical interaction between quantity and quality. Thereby most abstract level of philosophical methodology will be applied to the juridicial issues. According to author’s statement, each scientific concept has epistemic and social grounds. Former bound concept with cognitive aspect of legal activity, latter describe communicative characteristics of actors, which activities changed the legal system. As a result, the following conclusions were obtained. On the one hand, because the law has system-ordered configuration and predictable effects, its development can be called “evolution”. On the other hand, since the development of the law is often intermittent, chaotic, unpredictable, it has rightly been compared with the explosion. It is shown that these metaphors reflected of different models of social reality. Different images of social world exists because actors, which created it, occupy different functional position in the structure of society. In this sense, the evolutionary model corresponds to the position of law enforcers, and chaotic - the position of independent theorists. The paradox lies in the fact that in law necessity and contingency coexist peacefully. Thus, the science does not yet have a universal scheme of quantitative and qualitative changes connected in the law. For any specific research tasks to design this connection again, that requires taking into account the mass of cultural, psychological and anthropological data.
RUDN Journal of Law. 2016;(3):9-20
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Anti-corruption Expertise of the Territorial Entities of the Russian Federation Normative Legal Acts: Practice of Realization
Rostova O.S.
Abstract
The aim of the article is the complex analyses of the regional legislation applicable to the anticorruption expertise of regulations projects of the territorial entities of the Russian Federation. The article reviewed the characteristic features of the procedure of anti-corruption expertise of regulations of the territorial entities of the Russian Federation. The author proves the role of anticorruption expertise as one of the key elements of the regional law-making activity. Comparative study of the notion “anti-corruption examination” due to the regional regulations is given in the article. The analysis of the notion “anticorruption expertise” due to the regional regulations is given in the article as well as its types and essence. The author deals the anticorruption examination as one of the corruption prevention measures of the anti-corruption legal policy of the Russian Federation as well as the stage of the legal expertise of the regulations (and its projects) gained its quality and principle of legality improvement. This article analyzes the federal and region legislation regulated the examination of the legislation. The author proves the problems of realization of this institute due to the Ministry of Justice of the Russian Federation practice and statistics. This article discusses some problems occurring in modern practice of anticorruption expertise dealing with regional law acts and their projects. Also gives a comparative analysis of the law-making bodies’ activity and neutral evaluation. The article gives the author’s position about the necessity for the law making process of the territorial and municipal entities of the Russian Federation improvement, which includes special measures of organizational and legal character and methodical supports in order to provide the effectiveness of the lawmaking process of the territorial and municipal entities of the Russian Federation.
RUDN Journal of Law. 2016;(3):21-31
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The Public Interest as Constitutionality of Laws Criterion: French Doctrine and Practice
Kalish D.B.
Abstract
The article is devoted to genesis, doctrinal interpretation and practical application of the concept of the public interest in French law. The modern interpretation of the public interest goes back to the concept of the common will J.-J. Rousseau. French doctrine does not consider the public interest as a set of private interests, but on the contrary, opposes it to them. The public interest is understood as the common will of the nation and has priority over the interests of individuals. Public interest is both a base, and a restriction of the activities of public authorities, which should ensure its implementation, but can not act beyond necessity for that. The French Conseil d'État and administrative courts used the concept of public interest in order to control the legality of public administration activity. The act of executive authority, pursuing goals that do not meet the public interest, recognized as illegal and subject to cancellation. On the basis of analysis of decisions of the Constitutional Council and researches of French lawyers the author justifies the assertion according to which the public interest is considered one of criteria applied for assessment On the basis of analysis of decisions of the Constitutional Council and researches of French lawyers the author justifies the assertion according to which the public interest is considered one of criteria applied for assessment of quality of laws. The Constitutional Council is guided by the principle of proportionality. If the law provides for the limitation of rights and freedoms, they must comply with the objectives of public interest and is not excessive. The Constitutional Council shall consider the nature of the rights and their constitutional importance, applying different standards of the public interest to various rights. The author emphasizes that the French doctrine and case law have not developed a universal definition of public interest, its meaning is largely reduced to correspond to the common will, and the criteria of the public interest established by the resolution of specific cases. Despite the fact that some legal theorists doubt the effectiveness and validity of the public interest concept when it comes to creating new laws and regulations as well as for the Constitutional Council, the Conseil d'État and the administrative courts decision-making, this bodies continue referring to this concept within the framework legality control of executive acts and constitutional review of laws.
RUDN Journal of Law. 2016;(3):32-42
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The History of Russian State and Law: Domain-Branch approach
Minnikes I.V.
Abstract
The article assesses the practical significance of the a chronological approach to the study of the History of Russian state and law, ruling in the educational literature. Noted that this approach makes it difficult to identify patterns of development of state and law, since the information about state and law is closed within a certain historical period and is often incomplete, fragmentary. The author offers several new guidelines that can improve the course of History of Russian state and law. There are the purposeful domain-branch targeted orientation of the information about state and law, the use of comparative legal diachronic method of analysis of historical and legal phenomena and coherent structured presentation of information about the history of Russian state and law. The purposefulness allows to form some main themes, each of which covers the certain state-legal phenomenon (for example, the evolution of sources of law) or certain branch of law (e.g. the history of civil law, the evolution of criminal law, etc.). Every branch of law or phenomenon is investigated by means of comparative legal diachronic method. This allows to focus on a small number of related issues and to study the phenomenon or branch of law, not only in statics but also in dynamics, starting from the time of formation and to its modern state, tracing the main stages of evolution and development trends. The guideline of coherence and structuring of the presentation helps avoiding blanks in the presentation of information that allows to reconstruct a complete picture of the development of the branch of law or legal phenomenon. On the certain example of the evolution of national legislation about form of marriage were demonstrated the capabilities of the author's guidelines. The article in accordance to the guidelines of purposeful comparative historical coherence analysis explores the forms of marriage practiced in Russian state from X to XX century and makes important insights, both of theoretical and practical nature. It is established that in the earliest period two forms of marriage - pagan and Church competed among themselves. Church marriage became exclusively dominant only at the end of the XVI century. However, Church marriage has never been the sole legal form of marriage. Along with it existed pagan rites of «aborigines», schismatic marriages and non-Christian and mixed marriages, and also civil marriage. On the basis of the comparative analysis it was established that the ritual and ceremonial side of marriage were complemented by formal side in the XVIII century. The formal side of the marriage gradually entirely displaces the ritual and in the mid-twentieth century becomes the only proof of the legality of the marital union. The conclusion on the positive impact of the proposed principles of improving the course of the History of Russian state and law made, and that this approach matches the idea of practice-based learning.
RUDN Journal of Law. 2016;(3):43-56
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Judiciary Transformations in the Russian Empire of the mid XVIII century, as Precondition of the Public Institutions Legal Base Establishment
Lapteva L.Y.
Abstract
The article deals with some problems of the Russian justice system development over the middle forty years of the XVIII century. It highlights that those were not only the years of stagnation in the development of the judiciary, but also the time of the latent specialization and stabilization of judicial system. It was during the period considered when increasing complexity of the system of judicial and administrative institutions was in progress hand by hand with the gradual assertion of the idea of the legality in management and judgment. There appears awareness of the need for knowledge of the law as an important employment condition in staff of any government institutions. At the first glance, the system of the supreme and central court underwent the minimum changes during the period considered, although fiskalat and prosecutors activities were relatively fruitful. Strange as it may seem, but even within bodies of political investigation the requirement to follow rules of assessment of legality of accusations and proofs including methods of their obtaining existed formally and sometimes was followed. The extraordinary procedure for political trials was in the end forbidden to use by the Manifesto February 21, 1762. Judicial activities remained an important component of boards competence, and secretaries and judges were to be fined, according to law, for unjust trial. However, in view of a lack of the trained personnel the caught and punished judges were not released from a position, and in case of returning to crime the penalty in the same size was again levied from them. The local judicial administrative system badly coped with its’ tasks, therefore it was constantly reformed. All the guidance and supervision of the local courts were transferred to the governors. The exceptions were the church and the military courts. The question of the jurisdiction under the urban population transfer to magistrates was resolved rather accurately in the time of Peter. Then they ceased to submit to voivodes. Only throughout the short period (from 1727 to 1743) the Main Magistrate and magistrates in all cities were replaced with town halls with annually replaced bailiffs.
RUDN Journal of Law. 2016;(3):57-75
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Liberty of Discussion is Being Realized by United Nations and Some Member States
Abashidze A.K., Chernykh I.A.
Abstract
In 2006 Australian citizen J. Assange founded the WikiLeaks cite, where regularly were being placed different states’ secret materials. Later Great Britain and Sweden initiated criminal proceedings against J. Assange on the unconfirmed sexual harassment concerning two female Sweden citizens. On the 19th June 2012, J. Assange requested Republic of Ecuador to provide him political asylum in his London embassy. On the 16th August 2012 Ecuadorian embassy granted him political asylum. In September 2014 J. Assange’s lawyers went through Working Group on Arbitrary Detention of the United Nations Human Rights Council to protect his human rights. The authors explain not only actual reasons of the WikiLeaks founder criminal proceedings but determine UN remedy for human rights infringements on the base of J. Assange Case. The article enlights the legal procedure of individual complaint deliberation in Working Group on Arbitrary Detention of the United Nations Human Rights Council and legal status of its opinions. Working Group on Arbitrary Detention of the United Nations Human Rights Council refers to the special procedures, created by United Nations Human Rights Council, and entitled to handle an individual claims of the persons being arbitrary detained. Procedure of the individual complaints investigation includes four stages: submission of communications to the Working Group, providing the government of the opportunity to rebut allegations, providing a source of opportunities to comment the response of the government and making a Working Group’s opinion. Issued opinion is a quasi-judicial act, however, Sweden and Great Britain decided to dispute it, pointing out not-professional bench of the WGAG and not legally binding force of its opinions. Authors of the article not only explain the current international legal and political situation with J. Assange, but highlight main reasons of arbitrary detention, consider and analyze specific international legal terminology for a designation of detention and categories of liberty deprivation as arbitrary. Methodological basis of the research includes general scientific means of perception such as analysis, deduction and induction, and also special juridical means: rather-legal and technical methods. The article presents a reasoned legal opinion on the above-mentioned objects.
RUDN Journal of Law. 2016;(3):76-89
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Main Forms of Inter-State Cooperation in the Field of Migration
Kiseleva E.V.
Abstract
Unity of all movements of the population covered by the concept of migration as a subject of international legal regulation, in terms of risks and the potential for States, societies and individuals objectively pushes States to a comprehensive approach towards the phenomenon of migration. Inter-State cooperation on migration issues is being developed in different forms: treaty form and non-treaty form. And in all cases a share of inconsistency remains. Cooperation of States in the form of international agreements has not resulted yet in a comrehensive treaty on migration, on the contrary, the demand for such a treaty still follows from the analysis of only non-legally binding instruments, such as those by the UN General Assembly. Nowadays, one can only single out the blocks on the most important aspects of migration, e.g. human rights, fight against crime, etc., i.e. agreements developed as part of other branches of public international law, but applicable to the situation of migration. The exception here is refugee law that developed more or less on its own. However it covers one problem of migration out of many, and, thus, is an exception that proves the rule. Non-treaty (or institutional) form of cooperation of States also lacks a single unit, authorized by States to a comprehensive approach towards migration aimed at developing the commitments (obligations) in this area and control mechanisms over the execution of those commitments. There are a lot of international intergovernmental organizations touching migration within their respective competences. Duplication of their activity is monitored through coordination mechanisms. States' need for cooperation is further satisfied through non-binding «processes», «fora», «initiatives» operating at regional and universal levels. Author's opinion on the root-cause of the situation lies in the belief that effective and transparent co-operation can only be based on the true coordination of the wills of the States, whereas at present, the discussions of migration topics at the universal level are based on systematically distorted data, despite all the calls for the creation of the reliable multifaceted factological base. It seems to the author that the latest plans to develop by 2018 global compacts on migration and refugees, correspondingly, are not capable of radically changing the situation.
RUDN Journal of Law. 2016;(3):90-105
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The Summary Procedure in the Administrative Law: Experience of Comparative Legal Research
Zelentsov A.B.
Abstract
The author focuses upon the features of the summary procedure (written proceeding) concerning administrative matters of the Code of Administrative Procedure of Russian Federation and reveals its place in the system of special procedures. The author dwells on the consepts of summary, simplified and reduced proceedings in the context of comparative analysis of the administrative procedural legislation of some foreign countries. Furthermore, article stresses the need to give particular status to the summary procedure. Notes that in modern States there is the well-known variety of different approaches to the use of summary, simplified and reduced proceedings their legal frameworks and subject sphere. Nonetheless, the wide use such proceedings under administrative procedure in various countries suggests, that in the modern context one of the major trends of development administrative procedure law is expedite trials by simplifying procedures and the possibility of cutting down on the time required to hear administrative cases. The tendency of development of the simplified forms of proceedings in the Russian Federation aimed at shortening the timelines of regarding cases and improving judicial efficiency of administrative judicial proceedings is reflected in the summary procedure (written proceeding) and in the writ proceedings. Reveals the essential characteristic of the summary procedure (as written) such as: administrative process takes place without court hearings, without summons and hearing the parties in the shorter procedural time limits, based on written proof submitted by the parties. Concluded that the refusal of to establish a list of cases of the summary procedure, meaning that it can be used for any administrative case if one of the following conditions set out in article 291 of the Code of Administrative Procedure of Russian Federation, as well in the cases specified in part 7 of article 150, in part 5 of article 216 and in part 2 of article 315 of the Code of Administrative Procedure of Russian Federation. Also the comparative analysis of the summary procedure and writ proceeding is made. On the provisions of article 123.5 of the Code of Administrative Procedure of Russian Federation concluded that writ proceeding has a special nature, since the legislator defines this procedure outside the two judicial proceedings provided by article 140 of the Code of Administrative Procedure. Accordingly, it is suggested to consider the writ proceeding as pre- procedural, ex parte proceeding for settling disputes.
RUDN Journal of Law. 2016;(3):106-118
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The Legal Aspects of the Basic Categories in the Sphere of State Registration of Real Estate
Kolomijets D.Y.
Abstract
The article observes a problem of legal regulation of the state registration and inscription activeness on real estate properties. The author specifies basic categories “registration” and “cadaster”. A “cadaster” is considered to be informational and analytical registry system modifying almost every record process of land property complex into high-integrates territorial cadastre-type system. This enables to make a conclusion concerning formation and development of information space of property sphere in the modern period. The author analyses definitions of subjects of cadastre registration, focuses on definitions of buildings, constructions, locations, constructions in progress and underground structures that show specificity of researched sphere of legal regulation. The article also proves that conceptual framework of the problem includes a term “Uniform state register of real estate properties support system”. It reveals not absolutely reasonable variety of analogues of this term, so the author has to concentrate on analysis of structural components of the basic concept. It is proved that combining of information resources of the aforementioned Uniform state register and State Real Estate cadastre as a structured and logically unified data set necessary for registration and identification will have as one of its results a possibility to analyze a procedure of a posted state cadastre registration when making a decision about state registration of ownership. The author concludes that fulfilling of the task of minimizing the uncertainty and crossover use of definition in the system of legal regulation of registration and inscription activeness will contribute to improving of its conceptual and theoretical basis and practical aspects.
RUDN Journal of Law. 2016;(3):119-132
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The Financial Monitoring as Mandatory Condition for Financial Safety of the State
Proshunin M.M.
Abstract
This article is devoted to financial law issues on financial security of the state in relation to anti-money laundering and terrorism financing. The financial safety becomes the essential part of financial activity of the state. One of the threats for modern state is money laundering and terrorism financing. In course of financial activity of the state financial monitoring acts as a financial law instrument for anti-money laundering and combating terrorism financing. The financial monitoring as an essential part of financial safety of the state is justified by negative consequences for the state due to money laundering and terrorism financing. The author considers political, economic, social and legal significance of money laundering and terrorism financing. In order to ensure the financial safety of the state in course of financial monitoring measures it is very important to permanently develop the financial law procedures, including client identification, monitoring of operations, assets freezing and others as money laundering and terrorism financing presume the permanent genesis by development of new schemes of money laundering and terrorism financing. The author proves that deregulation has to be one of methods of improvement of current system of financial monitoring in order to ensure financial security of the state and its financial institutions. The article contains suggestions as to the institute of mandatory control which the immediate law modification is required to and institute of identification of ultimate beneficiary owners imposing the parallel obligations on clients and agents of financial monitoring. It is stated that decreasing the number of public functions in relation to agent of financial monitoring being commercial entities will increase the efficiency of analytical work as to detection of transactions linked with money laundering and terrorism financing and finally, ensure the financial safety of the state.
RUDN Journal of Law. 2016;(3):133-144
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S.F. Udartsev. Constitution and evolution of a society (issues of theory and legal philosophy)
Nurpeisov E.K.
Abstract
There are a few works in scientific writings that contain theoretical and philosophical-legal comprehension of the constitution and the constitutional development. The article includes the analysis and the value of fundamental theoretical deductions contained in the monograph “Constitution and evolution of a society (issues of theory and legal philosophy)” written by S.F. Udartsev (Saint-Petersburg: Universitetskii izdatel'skii konsortsium, 2015. 388 p.). It is dedicated specially to the aforementioned aspects of the constitutional evolution. The work under review observes the search for basis of law in the human history and etymology of a term «constitution». Due to the fruitful using the method of moving from the abstract to the concrete the monograph presents a proved, theoretically multidimensional picture of evolution of the constitution during the stages of development and stagnation of the human civilization. It shows the place of the basic law in mechanisms of economical and political development. The constitution is interpreted as a basis as well as apex of the national legal system that connects it with the international law. The impact of the constitution on the social-political and social-economical life is presented by its regulative activity as well as ideological influence through contemporary forms of political, legal, moral and religious consciousness. The work shows its back influence on the forming and acting constitutions. It marks general tendencies and perspectives of political and legal development and the role of the constitution in this process. Globalization contributes to including of whole countries and peoples into space of the developed civilization and this is accompanied by appearance of supranational, planetary regulative tools. One of the latter shall be planetary law that already has some ideological and legal background in the modern world society.
RUDN Journal of Law. 2016;(3):145-151
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RUDN Journal of Law. 2016;(3):152-155
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