No 4 (2016)

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Articles
Problems of the Doctrinal Interpretation of Law
Arzamasov Y.G.
Abstract
The article observes the problems of understanding of legal hermeneutics and doctrinal interpretation. The author concludes that the issue of interpretation of the law has already developed into the thematic framework of the general theory of law and state, and now is a subject of a specific applied science - legal hermeneutics, which has different ways of interpreting the law. The author focuses of the definition of the object of doctrinal interpretation and its types. After carrying out the analysis the author concludes that the doctrinal interpretation of the objects is very diverse and does not mean only interpretation of the law. Almost all the elements of the legal system can be subjects to scientific analysis and forecasting. In contrary to the opinion affirmed in the literature on the theory of law and state that the doctrinal interpretation is a kind of informal interpretation of the law, the author makes a conclusion that the doctrinal interpretation can be official, unofficial and officious i.e. it can have the semi-official character, such as the conclusion to bills. The author considers that despite the fact that in modern Russia the doctrine is not recognized as an official source of law it has a tremendous impact on the legislator, in particular, his legal mind, his psychology foundations. The best samples of scientific doctrines presented in the first chapter of the Constitution. E.g. it is Montesquieu’s theory on the separation of powers, idea of the federal structure of the Russian state, ideas of a secular and democratic state, which withstood a major test of time. This is idea of Lorenz von Stein of the social character of the state, too. After considering the various approaches to understanding the sources of law the author comes to the conclusion that if the interpretation of the results is prepared by a famous legal scholar, is set out in the field of a recognized theory, a certain concept, the legal paradigm, it must be recognized as the legal source and one needs to refer to it in resolution of legal problems in the administration and courts of various levels.
RUDN Journal of Law. 2016;(4):9-25
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Norms and Legal Relations: Systematic Approach to the Legal Regulation
Kapustina M.A.
Abstract
The article is devoted to the problem of connection between rules of law and legal relations in the regulation of social relationships. The process of legal regulation itself is viewed from the perspective of the systematic approach in which legal regulation is not limited by the legislative mechanism of purposeful state influence. The article points out the continuing popularity of the mechanistic approach to legal regulation. However, this approach does not enable to take into account the occurring processes in the legal sphere of self-organization (self-regulation), integrative (system-making) connections between rules and legal relations. Actuality of the researched problem is connected with the need to revise a series of theoretical and practical problems of normative legal regulation in the context of the integrative jurisprudence and formation of system conception of the legal regulation. Use of the systematic approach for the study of the legal regulation provides theoretical and practical generalization of the results of studying the problem correlation between norms and legal relations in the framework of the positivist theory, sociological jurisprudence. To solve a complicated scientific and practical problem of formation of the system of legal regulation displaying all the variety of interconnections, relations and processes occurring in the legal reality, it is important to analyze the process of normative legal regulation in the sociological point of view (the process of creating and establishing the rules), bringing both models of law as a system of norms and law as a system (network, the order) of legal relations in a unified theoretical picture. Discussion of problem of connection between the legal relations and the rules involves sociological studying of the question about legal regulation. The article concludes that the legal establishment does not generate by themselves a system of legal relations. Non-legitimated legislative establishment is not included into a functioning system of legal relations. The system approach to the legal regulation of social relations enables to take into account the socio-psychological and informational aspects of the interaction of subjects, overcome diagrammatic (mechanistic) creation of stages of state normative regulation mechanism and to consider the legal regulation as a complex system of interrelated norms (legal establishment) and legal relationships.
RUDN Journal of Law. 2016;(4):26-40
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Alf Ross’s Realistic Concept of the Sources of Law
Vasilyeva N.S.
Abstract
This article analyzes of A. Ross's theoretical conceptualization of the sources of law and their classification which is considered as an important part of Ross's concept of the validity of law. A. Ross states that the theory of law should be based on the principles of empiricism and thus the validity of the law can only be discovered through an empirical study based on a synthesis of psychological and behavioristic views. Such study means analyzing the practice of the courts (and other authorities administering the law) and finding both consistency and predictability in the behavior of the judges and a certain normative ideology, which governs and motivates spiritual life of the judges and in fact animates the courts. A. Ross argues that it is the only possible way to comprehend and predict the actions of the courts, which is crucial for discovering valid law. A common normative ideology, the ideology of the sources of law, is present and active in the minds of the judges and determines their way to discover a directive decisive for a certain legal dispute and formulate a rule on which decision will be based. Hence, A. Ross’s conceptualization presupposes that “sources of law” should be understood as the aggregate of factors influencing the formulation of the rule. This influence can vary depending on the degree of objectification of various types of source: some sources provide a ready formulated rule, while the others provide only material and inspiration. It also focuses on the concept of the tradition of culture which is considered as both a direct source of law and a significant factor influencing the legal system, the legal consciousness, the interpretation of law and the administration of justice.
RUDN Journal of Law. 2016;(4):41-51
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Deputy - Voter - Legislature
Lonskaya S.V., Gerasimova E.V.
Abstract
The legal case brought to the attention of the Charter court of the Kaliningrad region and later considered in this article dealt with the following situation. A Deputy from Kaliningrad Duma was denied his interpellation based on the fact that if the information request concerns the citizens appeals from another electorate, then it can not be fulfilled. The opposition between «his» and «others» deputies as well as «his» and «others» voters is indicated by the authors as the legal and scientific issue. The example of this case in the Charter court of the Kaliningrad region is examined and the existing relationships between the Deputy, voters and Legislature arising from the implementation of parliamentary activities also are considered. Analysis of the legal norms through the dogmatic method helped the authors to conclude that the legal form of the relationship of the Deputy and voters include relations between the Deputy and the voters of his district. Although it does not mean that other citizens are outside in such relations because the electoral legal relations and the relations for the realization of other political rights and freedoms should be separated. Model of the Deputy’s relations with his electors should be considered as elements of the imperative mandate, but not as a limitation of the rights of the Deputy to the implementation of public law parliamentary activities or restriction of the constitutional rights. Such conclusion is based and followed from the economic model «principal-agent» that was used in this research. From such point of view the triad “Voter-Deputy-Legislature’’ includes the relationship not only between the voter and Deputy, but between the voter (citizen) and the Legislature, so the Deputies act as the sub-agents. It is therefore evident that any forms of parliamentary activities will cover not just the «electorate», but all citizens that are under the jurisdiction of the Legislature.
RUDN Journal of Law. 2016;(4):52-60
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The Nuremberg Trials and The Principle of Respect for The Practice of the European Court of Human Rights
Nikolaev A.M.
Abstract
In 1946, the Nuremberg trials established the legal end of the Second World War. Gross and massive violations of human rights in Europe were a powerful incentive to the establishment of effective guarantees for fundamental human rights at the regional level (the Council of Europe). International legal obligations of the Russian Federation in connection with its participation in the European Convention for the Protection of Human Rights and Fundamental Freedoms require the state of execution of judgments of the European Court of Human Rights issued in respect of the Russian Federation. Human rights values forming the basis of the Constitution of the Russian Federation and the European Convention for the Protection of Human Rights and Fundamental Freedoms do not come into conflict with each other in the force of constitutional provisions which cannot be opposed to each other. The implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms as an international treaty could not be accompanied by the discretion of the state in relation to the binding nature of judgments of the European Court of Human Rights. Attitude towards the legal positions of the European Court of Human Rights should be based on the principle of respect for the practice of intergovernmental bodies for the protection of the rights and freedoms of the individual. First, the state recognized the jurisdiction of the intergovernmental body on protection of the rights and freedoms of the individual, obliged to consider the practice of this body in the matter in respect of the state concerned. Second, a state may not plead impossibility of performance of decisions of the intergovernmental body for the protection of the rights and freedoms of the individual, issued upon review of individual complaints, or otherwise ignore the undertaken international obligations. At the same time, admitting the possibility of state interference in the exercise of those rights and freedoms, the European Convention for the Protection of Human Rights and Fundamental Freedoms requires the state some discretion to regulate the rights and freedoms of the individual. Evolution of the European Court of Human Rights as an institution of international protection of the rights and freedoms of the individual should be based on the recognition by member States of the Council of Europe the principle of respect for the practice of the European Court of Human Rights.
RUDN Journal of Law. 2016;(4):61-81
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Traditional Values v. “LGBT Rights” within the Framework of the Right to Education: International Legal Approach
Semenova N.S.
Abstract
The article is devoted to the most acute problem of the modern world - the revision of the traditional fundamental values that are the basis for the existence of all humanity. Currently in many Western countries have adopted national laws on the «gay marriage», is legalized the right of adoption of children by same-sex couples , is under discussion decriminalization of incest and pedophilia. Despite the fact that same-sex relationships, as well as other «non-traditional relationship», are known since time immemorial, until the XX century, no one tried to equate them with the traditional family relationships, presenting them as the same norm. Moreover, in most of the countries that legalized same-sex relationships, these type of relationships is shown to children as «normal» and «natural.» Parents who try to prevent children from obtaining such knowledge, facing the responsibility from the administrative penalty to criminal penalties. The problem is compounded by the fact that the countries that legalized same-sex relationships, trying to actively promote and impose on other countries the so-called «LGBT rights» within the framework of international organizations, human rights treaty bodies, regional and international organizations. The author gives examples of national legislation and international norms of «soft law» in this area, adopted within the framework of the UN and the Council of Europe, analyzes them for compliance with the norms of international law, the main place among which is occupied by norms of international treaties recognizing the right to education. In the study of the right to education is considered a right of parents to raise their children according to their own moral, religious and philosophical convictions, as a basis for the protection of their children from non-traditional relationships' propaganda. The article deals with the position of Russia opposite to the promotion of non-traditional relationships and the measures taken by it at the national level to protect against this propaganda, as well as its active position on the national and international levels to educate future generations on the basis of traditional values of humankind and its importance for the maintenance of national and international security.
RUDN Journal of Law. 2016;(4):82-98
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The Future of Case Law in Russia
Grebennikov V.V., Grudtsina L.Y.
Abstract
24th of November 2016, the President of Russia submitted to the State Duma of the Russian Federation’s Federal Assembly the draft Federal constitutional law «On introducing amendments to the Federal constitutional law «On the Constitutional Court of the Russian Federation». The bill proposes a new form of the Constitutional court judgment regarding the results of consideration of the case about the verification of constitutionality of a statutory act of public authority or a treaty between bodies of public authority, - the decision to declare the statutory act or the treaty or individual provisions of them corresponding to the Constitution in the interpretation given by the Constitutional Court of the Russian Federation. In the authors’ opinion, such a new form (and new legal nature) of the Constitutional Court judgment marks a historic turn of the Russian state policy towards the development of case law, strengthening the place and role of judicial precedent and lawmaking. This means that other (possible) interpretation will not be taken into account by courts, thereby, the judicial system will become more manageable, and decisions taken by courts - in terms of possible interpretations of the Basic law - more predictable. The article also explores the concept of «judge-made law», which in connection with the submission of the draft Federal constitutional law, takes on new meaning and new legal nature: firstly, the judge-made law, as one of the most common concepts in modern Western European jurisprudence and the Anglo-American common law, in fact, starts its development in Russia, secondly, the classic concept of the judge as an «implementer» of the law-making functions of the court right from the beginning starts to be distorted in Russia, because the right to be «interpreter» (commentator) belongs only to the Constitutional Court of the Russian Federation, the lower units of the judicial system no longer can, but are obliged to follow the position of the Constitutional Court of the Russian Federation. In any case, according to the authors, the development of judicial precedent and lawmaking is a significant positive step for the development of the legal system of the state. The question is debatable: what to give preference in case of interpretation of the regulation to - explanation of a will of the legislator which he wanted to express, or to the text of the regulation. The will of the legislator only so makes the law as far as it is expressed in the regulation as there are requirements to the acts, uniform in the territory of the state, establishing the rights and obligations.
RUDN Journal of Law. 2016;(4):99-110
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To the Question of Improvement of Quality of Criminal Prosecution Via the Effective Mechanism of the Appeal
Shadrina E.G.
Abstract
The institute of the appeal regulated by Art. 125, 125.1 of the Criminal Procedure Code of the Russian Federation taking into account opportunities of its use for improvement of quality of criminal prosecution is considered. By the author it is shown that the considered institute and its elements are not perfect, need changes and additions which pursue the mutually agreed aim answering to purpose of all criminal trial - ensuring effective judicial protection of the human rights violated during pretrial investigation and the citizen and protection of public interests during criminal prosecution. The problems connected with lack of accurate definition are revealed: subject and subject structure; bases, procedure and results of judicial proceedings on complaints; executions of the judgment. Analyzing a subject of the appeal, the author shows that existence of estimated categories in Art. 125 of the Criminal Procedure Code of the Russian Federation («others», «inaction», «capable to cause», «to complicate access to justice») is the prerequisite for abuse of the right. The established five-day term of consideration of complaints aiming immediate response to violations of the rights during pre-judicial production in practice is formality, and terms reach 12 and more months in this connection, there is a need of distribution of action of Art. 6.1 of the Criminal Procedure Code of the Russian Federation on the considered type of legal proceedings. It is noted that the assistant criminal investigator, the investigator whose proceeding decisions and actions are a consideration subject as Art. 125, 125.1 of the Criminal Procedure Code of the Russian Federation, are not subjects of the appeal of court decrees though often their legal position contradicts a position of court. Lack of judicial control of execution of the decisions passed as Art. 125, 125.1 of the Criminal Procedure Code of the Russian Federation; responsibility of public officials for their non-execution, leads to loss of functions to which performance the considered institute is directed. On the basis of the analysis of scientific literature and court practice in article recommendations about improvement of the considered institute at the legislative level for the purpose of ensuring the rights and assignment of duties on the applicant and public officials of criminal prosecution authorities are offered.
RUDN Journal of Law. 2016;(4):111-122
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Indemnification Problems, Caused by Actions (Inaction) or Decisions of Government Bodies and Their Public Officials within Administrative Process
Maskaeva I.I.
Abstract
This article is devoted to problem aspects of indemnification which resulted from actions (inaction) or decisions of bodies of public administration and their public officials. The author analyzes system of standard regulation of these relations, the developed court practice, revealing features of realization of the right for compensation of the harm done by the state as a result of its administrative and jurisdictional activity. The special attention is paid to debatability of a question of the legal nature of the adjustable relations, a problem of definition of a standard basis of the indemnification caused by the state within administrative process including a problem of applicability of all ways of protection provided by the civil legislation at realization of the right for indemnification caused within administrative process. Questions of establishment of illegality and guilt at infliction of harm as a result of implementation of imperious actions (decisions) are analyzed, and also questions of a preyudition, admissibility of justification within claim production of illegality of the decisions of standard and substandard character made by public administration. Conclusions about the insufficient clearness of legal regulation of the studied question are presented to end, the assessment is given to debatable aspects of a perspective and tendencies of development of institute of compensation of the harm done by the state, ways of improvement of the current legislation and law-enforcement practice are offered. The author offers two ways of the legislative solution of the delivered problem: recognition of all indemnification methods provided by the civil legislation within administrative legal relations by means of more accurate general legislative specifying on admissibility of all sales opportunities of this right in relation to indemnification caused by actions of public administration or forming of own full administrative and legal regulatory base of compensation of the harm done by the state as a result of its administrative and jurisdictional activities. Regardless of the chosen way of enhancement of the considered institute, its updated standard basis shall consider positive achievements of law-enforcement practice, especially - the progressive legal line items created in the course of interpretation of disputable regulations by the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation. Audit of the legislation regarding a regulation of indemnification shall promote not only to refining of the place of this institute in system of legal regulation, but also to provide proper protection of the appropriate right.
RUDN Journal of Law. 2016;(4):123-147
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Financial Control in the State Defense Order as a Factor of Financial Security
Pisenko K.A., Slavinsky P.V.
Abstract
The article deals with questions about the role and importance of state financial control in the sphere of state defense order as a factor in ensuring the financial security of the Russian Federation. The organization of the state financial control is an obligatory element of management of public financial resources. Implementation of state financial control in the public procurement within state defense order enables to provide not only financial, but also military security. One of the main strategic threats to the national security of the Russian Federation in economy is vulnerability of the domestic financial system and imbalance of the budget system. In this regard, the necessity of creation of effective system of state financial control is one of the major challenges in ensuring financial security of the Russian Federation. Finding ways of improving the system of state financial control in the sphere of the state defense order is one of the primary tasks towards the creation of conditions for increasing the level of financial security of the Russian Federation. Reforming the system of state financial control is based on the principle of interagency cooperation between the competent state bodies. The article examines issues and problems in relation to interagency cooperation within realization of state financial control in the public procurement instate defense order. The transfer of powers of the Federal Tariff Service of Russia and the Federal Service for Defense Contracts of Russia to the Federal Antimonopoly Service of Russia has led to concentration on the basis the Service different functions of control in the field of public procurement within the framework of the state defense order: participation in the formation of the federal budget, determining the military product prices, monitoring of implementation, deployment and execution of public procurement , including financial control. One of actual theoretical and practical directions of financial law science is understanding the new financial and legal status of the Federal Antimonopoly Service of Russia as the authorized state authority on implementation of internal financial control, responsible for control in the sphere of public procurement carried out within the framework of the state defense order, and place of the Service in the system of state financial control.
RUDN Journal of Law. 2016;(4):148-158
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80th Anniversary of G.I. Muromtsev
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Abstract
The material focuses to the 80th anniversary of Doctor of Law, Professor of the Department of the Theory of Law and State, Law Institute of the People’s Friendship University of Russia G.I. Muromtsev, a specialist in the filds of theory of state and law, law of developing countries, comparative study of legal cultures.
RUDN Journal of Law. 2016;(4):159-160
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Our authors
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Abstract
RUDN Journal of Law. 2016;(4):161-164
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