Bulletin 2-2017

Вестник № 2-2017 (Download)

№ 2 / 2017

Mal’ko A. V., Isakov I. N. Multilevel Legal Systems: Problems of Ordering Their Relationships

Mal’ko Alexander Vasilievich — the director of the Saratov Branch of the Institute of State and Law of the Russian Academy of Sciences, the doctor of law, professor, honored worker of science of the Russian Federation (Saratov), i_gp@ssla.ru.

Isakov Igor Nikolaevich — the doctoral candidate of the Theory of State and Law Chair of the Federal State Educational Institution of Higher Education “Saratov State Law Academy”, PhD in law (Saratov), isakov2009@yandex.ru.

The article discusses the national, intra-national, supranational and international legal systems as multi-level legal phenomena. Examines the mechanism of the relationships between different levels of legal systems. The greatest emphasis is placed on the Federal legal systems.

Federalism; Federation; subjects of Federation; national legal system; supranational and international legal systems; the mechanism of interrelations of legal systems

Bezrukov A. V. The Role of Bodies of the Constitutional Justice in Identifying, Addressing and Filling Gaps in the Law

Bezrukov Andrey Victorovich — the doctoral candidate of the State and Legal Disciplines Chair of the Management Academy of the Ministry of the Interior of the Russian Federation, PhD in law (Moscow), abezrukov@bk.ru.

The relevance of the topic due to the necessity of consideration of activity of bodies of the constitutional justice by identifying, overcoming and eliminating their gaps in the law. The aim of this work is that based on the analysis of doctrinal sources and practices of the constitutional Court of Russia shows how to identify, overcome, and fill legal gaps by bodies of constitutional justice contributes to the efficiency of legal regulation and strengthening of constitutional order in Russia. The achievement of this goal contains within itself a certain scientific novelty. The subject under research is the activities of bodies of constitutional justice. The main conclusion is that bodies of constitutional justice are actively involved in ensuring the unity of legal space, adjust the legislator and clarify the content of the legal provisions.

The constitutional Court of Russia; constitutional (Charter) courts of constituent entities of the Russian Federation; a legal gap; identifying, overcoming and eliminating gaps in the law; the rule of law

Bimbinov A. A. Quality of Regulations about Criminal Liability for Drug Trafficking

Bimbinov Arseniy Alexandrovich — the teacher of the Criminal Law Chair of the Kutafin Moscow State Law University (MSAL), PhD in law (Moscow), bimbinov@yandex.ru.

Article is devoted to a research of standard fixing of criminal liability for drug trafficking (article 228–229.1, 231 Criminal Code of the Russian Federation). In work the specified regulations regarding their compliance to fundamental categories of the criminal law and to the purposes of law-enforcement activities consistently are considered. Conclusions about discrepancy of some provisions are drawn and ways of an exit from the current situation are determined. On the basis of doctrinal provisions of the criminal law and materials of court practice suggestions for improvement of the legislative description of the crime components consisting in drug trafficking are formulated.

The drugs; illicit trafficking; drugs; psychotropic substances; cultivation narcocontaining plants; quality of the law

Voronin V. N. The Quality of the Criminal Law Protection of the Physical Liberty of the Individual: the Problem of Designing Rules and Differentiation of Responsibility

Voronin Vyacheslav Nikolayevich — the teacher of the Criminal Law Chair of the Kutafin Moscow State Law University (MSAL), PhD in law (Moscow), voronin@zakon.ru.

A huge role in the application of the criminal law plays that, as far as this provision is designed qualitatively. This is particularly important when it comes to protecting such a valuable benefit as the personal freedom of the individual. With the quality of the position of the criminal law the author considers the legislation, which include the following offenses: Art. 126 of the Criminal Code “Abduction”; Art. 127 of the Criminal Code “Illegal deprivation of freedom”. On the basis of the quality criteria of the criminal law the author reveals the problems associated with the construction of the said norms of the Criminal Code, and as a result of the study offers new versions of standards discussed. In particular, the author proposes to abandon the simple dispositions, which the legislator uses to construct the test standards proves the necessity of constructing a narrative. Also the author, drawing on international experience, offers a differentiated criminal responsibility, depending on how much long the person was held against his will. The work was conducted in the framework of the Russian President’s grant, with the financial support of the Ministry of Education of Russia under the agreement number MK‑3608.2017.6.

Personal freedom; kidnapping; false imprisonment; quality standards; the differentiation of responsibility

Zvonov A. V. The System of Limitations and Deprivations Provided by Domestic Criminal Punishments

Zvonov Andrey Victorovich — the doctoral candidate of the Faculty of Training of Scientific and Pedagogical Personnel of the Academy of Law Management of the Federal Penal Service of Russia, PhD in law (Ryazan), zvonov_av@mail.ru.

The article deals with the complex of limitations and deprivations provided by domestic criminal punishments. Towards this end, the author examines the classification of criminal punishment due to their division on various grounds. The author points out the moral and psychological limitations and deprivations, financial and property limitations and deprivations, limitations in the labor sphere, limitations of freedom of territorial nature, deprivation of freedoms, deprivation of life. The author came to the conclusion that differentiation of these limitations and deprivations rather relative. Substantial potential for further division by a fractional part of the present system of limitations and deprivation.

Crime; conviction; criminal punishment; system; limitations; deprivations; rights; freedoms

Zvonova A. V., Zhuravleva Y. V. Sales as the Main Way of Penetration of Narcotic Drugs and Psychotropic Substances into the Territory of Places of Forced Isolation

Zvonova Anna Veniaminovna — the teacher of the VLI of the FPS of Russia (Vladimir), salikova.a@yandex.ru.

Zhuravleva Yulia Vyacheslavovna — the assistant professor of the Criminal Law and Criminology of the All-Russian State University of Justice, PhD in law (Moscow), Zhuravleva82@mail.ru.

The article discusses the illegal sale as one of the most widespread ways of penetration of narcotic drugs and psychotropic substances on the territory of establishments and bodies criminally-Executive system. Analyzing Russian legislation in this area, the author comes to the conclusion about the necessity of amending the provisions of the Plenum of the Supreme Court of the Russian Federation from June 15, 2006 № 14 “About court practice on Affairs about the crimes connected with narcotics, psychotropic, strong and poisonous substances” concerning the signs of illegal sale of narcotic drugs and psychotropic substances.

Narcotic drug; psychotropic substance; illegal drug trafficking; sales; correctional facility; remand

Kardashova I. B. Changes of the Russian Legislation on National Security

Kardashova Irina Borisovna — the professor of the Administrative and Financial Law Chair of the All-Russian State University of Justice, the doctor of law, professor (Moscow), ikardashova@yandex.ru.

The article discusses the changes in legislation in the sphere of ensuring national security of the Russian Federation. Special attention is paid to the category of national security, which is currently defined in the national security Strategy of the Russian Federation. However, due to the complex and multifaceted nature of the phenomenon of national security in scientific circles, the search for its essence.

Security; nation; security; national security; legal regulation; Strategy

Korenyuk A. L. Issues of Legal Regulation of the Creation and Use of Information Legal Systems

Korenyuk Andrey Leonidovich — the senior researcher of the Department of Problems of Legal Statistics of the Academy of the R. F. Prosecutor General’s Office (Moscow), poimuz@yandex.ru.

The author outlines the key issues of legal regulation of creation and use of legal information systems, systematized relevant problems and prospects of their permission. The article justifies the classification problems of legal regulation of creation and use of IPS in two main categories: institutional problems and issues of systematization of Russian legislation.

Legal regulation; legal system information; legal information; the official Internet portal of legal information; critical information infrastructure; systematization of legislation

Nurmagambetov R. G. The Analysis of Problems of the Constitutional Regulation of the Public Relations in the Russian Federation

Nurmagambetov Rashit Gabitovich — the assistant professor of the Chair of Law of the Kostanay branch Chelyabinsk State University, PhD in law (Kostanay), Orel032@mail.ru.

In this article the analysis of problems of the constitutional regulation in the Russian Federation is carried out. In particular their substantial party reveals. Analyzing of standards of the Constitution of the Russian Federation the author comes to a conclusion that problems of the constitutional regulation are in many respects connected with violations of the legal equipment. It refers existence in the text of the Constitution of the Russian Federation of a large number of the hidden terms ordering other contents, non-compliance with the logical sequence of use of terms, the inexact use of inclinations of verbs, existence of declarative provisions, frequent use of pronominal adjectives, existence of incomplete synonyms to number of such problems. Characterizing separately each their look the author comes to a conclusion that in total they reduce the importance of the constitutional regulation of the public relations, limit efficiency of its action.

Constitutional regulation; norms; regulations; legal equipment; regulation; public relations; rights and freedoms; public authorities

Parkhomenko S. V., Rogova E. V. To the Issue of the Victim’s Consent Institution Authors describe a problem of the victim’s consent institution and determine conditions of this institution as a criminal defense.

Parkhomenko Svetlana Valeryevna — the professor of the Criminal Legal Disciplines Chair of the Irkutsk Law Institute (branch) of the Academy of the R. F. Prosecutor General’s Office, the doctor of law, professor (Irkutsk), psvet@mail.ru.

Rogova Evgeniya Viktorovna — the professor of the Criminal Legal Disciplines Chair of the Irkutsk Law Institute (branch) of the Academy of the R. F. Prosecutor General’s Office, the doctor of law (Irkutsk), rev‑80@yandex.ru.

Crime; harm; victim; victim’s consent; legality Conditions

Soldatova L. V., Alexandrova E. V. Problems of Legislative and Legal Techniques in the Field of Environmental Law

Soldatova Larisa Vladimirovna — the assistant professor of the Constitutional and International Law Chair of the All-Russian State University of Justice, PhD in law (Moscow), larisas130218@mail.ru

Alexandrova Elena Valeryevna — the assistant professor of the Constitutional and International Law Chair of the All-Russian State University of Justice, PhD in law (Moscow), Aleksandrova09@mail.ru.

This article focuses on the identification and analysis of problems and the application of legislation and accounting rules of legislative technique in the field of environmental law. Legislative technique is regarded as a system of science-based methods, rules, practices and mandatory requirements of preparation, adoption and streamline the regulations applied in order to ensure their effectiveness. In particular, it investigated and analyzed judicial practice in the application of the law governing the right of general nature related to forests and water bodies. These examples show that the ambiguity and vagueness of the rule of law gives rise to conflicts, complicates the enforcement process. This, in turn, leads to the fact that the regulation of the relationship is not based on the rule of law and the uniform enforcement practice, which entails violation of the rights and legitimate interests.

Legislation; legislative techniques; law conflict; the right of general nature; general access to water bodies; the right to a general forest management

Shchepelkov V. F. Improper Performance Physician Professional Duties in Health Care: the Problem of the Criminal Law Assessment

Shchepelkov Vladislav Fedorovich — the professor of the Criminal Law Chair of the Saint-Petersburg State University, the doctor of law (Saint-Petersburg), volga0@yandex.ru.

The article is devoted to the establishment of crime qualification purposes under Part 2 Art. 109 and Part 2 Art. 118 of the Criminal Code, the characteristic of misconduct by a medical professional in health care. Highlights two nowadays pressing problems. First — this assumption reference when setting attribute improper medical care at academic and scientific literature. The second — is related to the assessment of the recommendations of health professionals as a mandatory implementation guidance. The author based on the analysis of the scientific literature, clarification of the Plenum of the Supreme Court, criminal cases materials comes to the conclusion that the current practice of solving these problems is not conducive to the implementation of the principle of the rule of law and therefore must be more detailed legal regulation of the process of care.

Inadequate medical care; iatrogenic crime; qualification of crimes; wrongfulness

Gushchin V. V., Dobrovinskaya A. V. About the Legal Nature of the Sanctions

Gushchin Vasiliy Vasilyevich — the professor of the Civil and Business Law Chair of the All-Russian State University of Justice, the doctor of law, professor (Moscow), 418–2012@mail.ru.

Dobrovinskaya Alla Vladimirovna — the assistant professor of the Civil and Business Law Chair of the All-Russian State University of Justice, PhD in law (Moscow), 418–2012@mail.ru.

The article presents a detailed analysis of the right concept of “sanctions”, due to the fact that currently it is topical and controversial and debatable. The concept of “sanctions” is considered on the basis of their legislative consolidation and also the existing, on the issue of legal doctrine. Special attention is paid to the types of sanctions. Theoretical aspects of the work considered in close connection with the practice, it looks at the process of joining the Crimea to Russia, from the point of view of international law and of the validity of input in regard to EU sanctions against Russia. The authors note some trends in the development of the legislation in the sphere of application of sanctions.

Sanctions; liability; state intervention; international responsibility; internationally wrongful act; a contractee

Vasiliev A. O. Application of the Tax Exchange and the Concept of Beneficial Owner for the Purposes of Reveal and Suppression of the Corruption Crimes

Vasiliev Anton Olegovich — the post-graduate of the Administrative and Financial Law Chair of the All-Russian State University of Justice (Moscow), Vasilyev.anton.msu@gmail.com.

This article considers the possibility of application of the interstate tax information exchange mechanism and the concept of beneficial owner of the assets for identification of the beneficiaries committed the corruption crimes.

Beneficial owner of income; beneficial owner; tax exchange of information; corruption; tax crimes; FATF; OECD

Rostova M. V. Autonomy of Educational Organizations of Higher Education as a Form of Realization of the Constitutional Principle of Freedom of Teaching and Scientific Creativity

Rostova Maria Vladimirovna — the senior teacher of the Constitutional Law Chair of the Orel State University (Orel), rostova_mv@mail.ru.

Clause is devoted to research of an autonomy of high schools in a context of interpretation of the constitutional principle of freedom of teaching and scientific creativity. The author proves, that the external estimation of quality of educational activity is one of forms of intervention in independence of high schools. Differentiation of powers on management of high schools is carried out by norms of clauses 6–9 Federal law «About education in the Russian Federation». From the point of view of the constitutional requirements and conditions, these norms should be in methodological and substantial conformity with positions of clauses 71–73, 76 of the Constitution of the Russian Federation that is observed not in all cases. Offers on perfection of the legislation express.

The rights and freedoms of the person and the citizen; the right to education; freedom of teaching and creativity; an autonomy (independence) as the constitutional categories

Zhelonkin V. S. On the Notion of a Material Breach of a Criminal Law as a Base to Cancel or Modify a Judgment

Zhelonkin Vasiliy Sergeevich — the postgraduate of the Prosecutorial Supervision Over the Implementation of Laws in the Operational-Search Activities and the Participation of the Prosecutor in Criminal Proceedings Chair of the Academy of the Prosecutor General’s Office of the Russian Federation (Moscow), zhelonkinvasiliy@mail.ru.

The article considers a content of the notion of a material breach of criminal law introduced by Federal Law of 29.12.2010 № 433-FZ. It provides a comparative analysis of the next concepts: “inappropriate criminal law enforcement” and “material breach of criminal law”. Arguments are given here to oppose an opinion that the Court cannot violate criminal standards and we can only consider inappropriate law enforcement by the Court. The conclusion is made that inappropriate criminal law enforcement is actually a kind of criminal law violation. Classification is proposed referring to criminal law violations defaulted by the Court as a base to cancel or modify judgment in appeal proceedings.

Appeal proceedings; base to cancel or modify judgment; material breach of a criminal law; inappropriate criminal law enforcement; crime

Osipov D. A. Features of the Legal Status of the Russian Federation Commissioner on the Board of Directors (Supervisory Board) and a Commissioner in the Audit Commission in the Joint-Stock Company

Osipov Daniil Alexandrovich — the postgraduate of the Constitutional and Municipal Law Chair of the Nizhny Novgorod Institute of Management — branch of the Presidential Academy (Nizhny Novgorod), daniilosipov92@gmail.com.

The article examines the legal status of the commissioner of the subject of the Russian Federation in the board of directors (supervisory board) and a commissioner in the revision commission of the company. The author highlights their role and importance in the implementation of the powers and function problems; a comprehensive analysis of legal acts and practices of Representatives specified rights and responsibilities of commissioners in joint stock companies management and control bodies. The author defines the restrictions that are common for commissioners in management and supervisory bodies of joint stock company. In addition, the author formulate relevant proposals aimed both at improving the performance of the representatives of Russian entities in the joint stock companies, and to improve regional public administration in general.

The commissioner on the board of directors; the commissioner in the audit commission in the joint-stock company; golden share