Bulletin 3-2017

Вестник №3-2017 (Download)

№ 3 / 2017

Avdeev Dmitry A. Constitutionalization of Legitimacy in Modern Russia

Dmitry A. AVDEEV — the assistant professor of the Constitutional and Municipal Law Chair of the Tyumen State University, PhD in law (Tyumen), ronner@mail.ru.

Effective functioning of government bodies is possible not only in the case of their legal education, but most importantly, their education on the basis of the will of the majority of citizens, which gives them the property of legitimacy. The article explores the constitutional foundations of the legitimacy of public authorities, concludes that the activities carried out by them are in line with the political interests of Russian citizens. The author used a method of analysis and synthesis, formal-legal method and historical method of research. In this article is analyzed peculiarities in forming bodies of public power in Russian Federation. The Author consider the problem of electorate's possibility to express it's political will by institutes of straight (immediate) democracy. According of this matters the Author makes a conclusion of conformity the Russian legislation with conception of democratic society system.

Legality; legitimacy; public authorities; the Constitution of the Russian Federation; democracy; state power; elections; public administration

Maximov Ivan V. The Classification Issues of the Administrative Coercive Measures

Ivan V. MAXIMOV — the head of the Constitutional Law and the Administrative Law Chair of the FSBEI HE “ASTU”, the doctor of law, professor (Astrakhan), Sovetniklaw@yandex.ru.

Recently, the category of “the administrative coercive measures” causes much debate. The article considers the existing in the science of administrative law criteria for division of administrative coercion and based on their classification. Given the vast amount of scientific views on this category, the complexity and diversity of approaches to the study of its nature, of particular importance is the development of common approaches to its study, including the development of universal criteria for the classification issues of the administrative coercive measures. After analysing the classification found in the scientific literature the author offers her own version of division on complex criteria: the base and the immediate goal of the application of measures.

Administrative enforcement; maintenance of administrative coercion; the classification of administrative coercive measures; repression, prevention, factual basis, purpose, delict

Repyev Artyom G. Legal Advantages in the Russian Legislation: System and Types

Artyom G. REPYEV — the assistant professor of the Administrative Law and Administrative Activity of Law-Enforcement Bodies Chair of the Barnaul legal institute of the Ministry of Internal Affairs of Russia, PhD of law (Barnaul), repev-artem@yandex.ru

The author, from theoretiko-legal and branch positions, the category “legal advantage” is exposed to a research. The thesis moves forward that legal advantage represents a special definition today, and, having the general, settled characteristic in household and social spheres, systemically it isn't used in the legislation though fully reflects specifics of application in the right. Today, regularities of state and legal development demand from us to reunite broken links of separate types of advantages, to give them integrity, unity.

Legal advantage; privilege; immunity; privilege; encouragement; authority

Savichev Alexey A. The City Self-Government of Moscow and St. Petersburg in the 40-60 Years of the Nineteenth Century: a Comparative Legal Analysis

Alexey A. SAVICHEV — the post-graduate of the Theory and History of State and Law and Philosophy Chair of the All-Russian State University of Justice (Moscow), ucx7801@mail.ru.

Urban growth in modern conditions requires taking into account the historical experience of legal regulation of system of city self-government for the most effective solutions to urban issues. The article presents a comparative legal study of the organization of city self-government in Moscow and Saint-Petersburg as a result of introduction in the territory of these cities of the Act about the public control of 1846. The aim of this study is the identification with the help of comparative legal method distinguishing features of systems of municipal government in the cities at the appropriate stage of history. The author compares characteristics of municipal government of Moscow and Saint-Petersburg as a result of application thereto of the Law of 1846, the most expanding on the specifics of the formation of urban public administration. The novelty of work is caused by low light levels in the scientific literature historical and legal aspects of the question. The author makes a conclusion about significant differences of the Moscow municipal government from the St. Petersburg model.

City; city self-government; electoral right; qualifications; Moscow; Saint-Petersburg; the General Duma; the administrative Duma; stratums

Magomedov Guseyn B. Compensation for Damage Caused by a Crime, as the Basis of Exemption from Criminal Liability

Guseyn B. MAGOMEDOV — the director of the North Caucasian Institute (branch) of the All-Russian State University of Justice, PhD in law (Mahachkala), skf@rpa-mjust.ru.

Reflection of the conception of compensation for damage caused by a crime is analyzed in the criminal legislation, the significance of this circumstance is justified for exemption from criminal liability, and proposals made to improve criminal legislation in this area. The analysis of the application of articles 76 and 76.1 of the Criminal Code of the Russian Federation for the period from 2013 to 2016 and the theoretical as well as practical aspects of the institution of compensation for harm as the basis for exemption from criminal liability is are made carried out.

Damages caused by the crime, the mitigating of damage caused, the exemption from criminal liability, the resolution of Plenum of the Supreme Court, criminal law, practical application

Olzhabaev Bulat H. Development of Kazakhstan as a Social State: Experience, Problems and Prospects

Bulat H. OLZHABAEV — the assistant professor of the Law Chair of the Faculty of Public Administration, Business and Law of the S. Toraigyrov Pavlodar State University, PhD of law, (Pavlodar, Republic of Kazakhstan), Bulat_olzhabaev@mail.ru.

This scientific article discusses the experiences, problems and prospects of the development of Kazakhstan as a social state, gives the essential characteristics of this concept, analyzes the issues of constitutional and legal regulations in the field of social security and search for the optimal model of management in the social sphere. In addition, the article discusses the accumulated experience, problems and prospects for the development of Kazakhstan, as a social status, the search for an optimal management model in the social sphere.

Social state; social policy; social protection; social security

Sergun Evgeniy P. Implementing Activities on the Territory of the Russian Federation “Undesirable” Foreign or International Non-Governmental Organizations (Article 284.1 of the Criminal Code of the Russian Federation)

Evgeny P. SERGUN — the assistant professor of Criminal Law, Administrative Law and Process Chair of the GASU, PhD in law (Gorno-Altaisk), e.p.sergun@gmail.com.

Introduced in criminal legislation may 23, 2015 article 284.1 of the Criminal code of the Russian Federation served as another indicator of the imperfect quality of the Russian criminal policy. However, the number of scientific papers highlighting the legal and technical errors made by the legislator, remains insignificant for the possible impact on law-making strategy. In this regard, on the basis of formal-logical methods of scientific cognition the publication provides a thorough criminal-legal characteristic of article 284.1 of the Criminal code of the Russian Federation with a focus on the problematic nuances. Revealed the purely political nature of this criminal prohibitions, raises the question about the object criminalized acts, questioned the desirability of marked articles in the criminal law. The conclusions reached by the author, lay the Foundation for further research and rethinking of the essence of article 284.1 of the Criminal code of the Russian Federation and are Advisory in nature for the legislator, inclining him towards the decriminalization of the corresponding behavioral acts.

Undesirable organization; crimes against the constitutional order; state security; rights and freedoms; criminal law policy

Soboleva Yulia V. Administrative-Legal Regulation for the Establishment of Non-Governmental Organizations

Yulia V. SOBOLEVA — the assistant professor of the Administrative and Municipal Law Chair of the Saratov State Law Academy, PhD in law (Saratov), j.soboleva@mail.ru.

The research urgency is caused by necessity of studying the structure of administrative legal status of nongovernmental organizations to identify state and prospects of development of legal institutions included in this framework, including this element as the creation of these entities. The article examines the ways in creating commercial and non-commercial associations is regulated by law. The author comes to the conclusion about recruiting order of creation (and for some types of organizations the spot-the notification) and the registration of ways to create. To implement proper state control over execution of normative acts of organizations operating without state registration, it is proposed to extend the spot-the notification method of creation, by amending and supplementing the relevant legislation. The article was published on the instructions of the Ministry of Education and Science of the Russian Federation No. 29.8125.2017/8.9 for the execution of the state project in the field of scientific activity within the framework of the basic part of the state task on the topic “Mechanism of state regulation of the application of administrative coercion measures to nongovernmental organizations”.

Commercial and non-commercial organizations; administrative and legal status of organizations; recruiting, the spot-the notification and registration how to create nongovernmental organizations; control over execution of the legislation by the organizations

Urda Margarita N. Criminal Liability for Organization of Illegal Migration According

Margarita N. URDA — the assistant professor of the Criminal Law Chair of the Southwest State University, PhD in law (Kursk), urda.ru@rambler.ru.

In terms of improvement of sanctions for migration offences, one of the priorities of the Russian state, is relevant the study of foreign experience of regulation of liability for organization of illegal migration — the most dangerous crimes in the sphere of migration. The subject of the research are the norms of foreign legislation. The aim of this work is the formulation of the main approaches to the regulation of liability for organization of illegal migration and comparable acts in the legislation of foreign countries. Methodological basis of work was made the comparative legal research method. To new obtained results included the selection of the main approaches in the formulation of a considered encroachment of the foreign legislation in the context of correlation with the international standards of counteraction to illegal migration.

Organization of illegal migration; comparative legal analysis; criminal legislation of foreign countries; criminal legal means of counteraction

Ternovaya Olga A. Harmonization and Unification of the Corporate Legislation of Russia and the Member States of the Eurasian Economic Union

Olga A. TERNOVAYA — the leading researcher of the Department of Civil Legislation of Foreign States of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, PhD (Moscow), ternovaya16@yandex.ru.

The article focuses on the topical issue of harmonization and unification of the corporate legislation of Russia and the member states of the Eurasian Economic Union. And note the tendency of economic and political integration, caused by the intensification of international competition. The application of legal, comparative legal and logical methods of research has made it possible to identify the problems of regulating corporate legal relations and prepare proposals for improving legislation. The conclusion is made that the Russian legislation, which reveals the concepts of “corporation” and “corporate legal relations”, should become the basis for the modernization of the corporate legislation of the EES. There are no legal concepts in the legislation of the Kyrgyz Republic, the Republic of Armenia, the Republic of Kazakhstan and the Republic of Belarus. The reasoned conclusion argues on the need for unify the concepts of corporate law of the member states of the EES by concluding international treaties and developing supranational legislation.

The article was prepared under the auspices of the Russian Humanitarian Scientific Foundation, Project № 16-23-08001 “Criminal and Administrative Liability of Legal Entities for Violation of Competition Rules”.

Legal entities; corporations; corporate relations; corporate responsibility; unification and harmonization; EES; EU; supranational legislation; integration; globalization

Beniaminova Svetlana A. The Constitutional Control of Norms of Legal Acts of Regional Executive Authorities and Municipal-Level Acts

Svetlana A. BENIAMINOVA — Chairman of the Constitutional Court of the Republic of Karelia, the post-graduate of the Constitutional and International Law Chair of the All-Russian State University of Justice (Petrozavodsk), benyaminova@mail.ru.

The article analyzes the powers of constitutional (charter) courts of the subjects of Russian Federation to verify the consistency of normative legal acts of regional executive authorities, as well as municipal normative acts with the constitutions (charters) of Russian federal subjects. These powers represent the fulfillment of the subject sphere of judicial constitutional control and the mechanism of ensuring constitutionality of regional legislation and municipal normative acts. At the same time regional laws chose various approaches to determine a circle of eligible applicants to regional constitutional (charter) courts.

Constitutional proceeding; abstract and concrete control of norms; constitutional (charter) courts; normative legal acts of regional executive authorities; municipal-level normative acts

Fomenko Elena V. Bribery: Criminological Portrait and Individual Bases of Criminalization

Elena V. FOMENKO — the leading researcher of the Science and Research Centre of the All-Russian State University of Justice, PhD in law (Moscow), krasnopeewa@rambler.ru.

In the article the author analyzes criminological aspects of the crimes related to bribery and gives the characteristics of individual bases of the criminalization. In the course of the research various theoretical and empirical methods of criminological research were used. The crimes related to bribery, as the main subject of the research, were considered by the author in correlation with crimes of corruption. The relevance of the theme of the research is due to the fact, that exactly bribed offenses such as commercial bribery, receipt, giving bribes and others are the most highly latent, disguised and, consequently, the most dangerous criminal manifestations of corruption and their investigation is of a significant and urgent nature, what is undoubtedly connected with the increasing criminalization of society as a whole and the deep rooting of corruption in the sphere of state power, in particular.

Bribe; criminological portrait; bribery; corruption; bases of criminalization

Zhmurov Dmitriy V., Protasevich Alexandr A., Porokhovoy Vadim Y. Telephone Terrorism: Effect of Mass Media

Dmitriy V. ZHMUROV — the assistant professor of the Criminal Procedure and Criminalistics Chair of the Irkutsk Law Institute (Branch) of the All-Russian State University of Justice, PhD in law, project coordinator of the “National Encyclopedic Service of Russia” (Irkutsk), zdevraz@ya.ru.

Alexandr A. PROTASEVICH — the Director of the Law Institute of the Baikal State University, doctor of law, professor, honored jurist of the Russian Federation (Irkutsk), chigrina-ev@isea.ru.

Vadim Y. POROKHOVOY — the Head of the of the Department for the Irkutsk Region GUODOP FSIN of Russia, the colonel of internal service (Irkutsk), porokhovoj.vadim@ya.ru.

The article is devoted to the problem of telephone terrorism. Within the framework of the study, the authors set the following tasks: to define the concept of telephone terrorism, to develop a classification of people committing such crimes and to verify the hypothesis about the influence of the mass media on the dynamics of false calls about terrorist acts. In the course of the work, a brief description was given of people committing crimes under Art. 207 of the Criminal Code of the Russian Federation (a deliberately false report on the act of terrorism), their typology was developed. There are five main types of telephone terrorists (vigilant, vindictive, instrumental, pathological and infantile). Their characteristics are described. In addition, one of the objectives of this study was to study the influence of the media on the determination of false reports of terrorist attacks. Using the method of correlation analysis, the hypothesis was tested, according to which information about terrorist acts in the media provokes the growth of false reports about terrorism. To this end, analyzed statistics on crimes under Art. 207 of the Criminal Code of the Russian Federation and a content analysis of reports on terrorism was conducted in the media for the period from 2004 to 2016. In the course of the mathematical evaluation of the relationship between these two factors, a positive correlation was established.

Telephone terrorism; a knowingly false report of a terrorist act; television

Motekhina Marina. V. Educational Credit as one of the Contract Relations Form in the Modern Education Area

Marina V. MOTEKHINA — the head of the Civil Legal Disciplines Chair of the Tula Institute (branch) of the All-Russian State University of Justice, PhD of pedagogical, motekhina@mail.ru.

Using the complex analysis of the educational credit according to the Russian legislation the follow conclusion was made: the necessity of the educational loans for the citizens, who are acted as consumers of the rendering (paid) educational services on contract. The author concludes that it is necessary to work out the set of the educational credit problems including its normative legal regulation. Suggestions made in this article can be used for the upgrading of educational credit legislation.

Educational credit; education; Russian legislation; contract; rendering (paid) educational services; creditor; borrower; consumer

Diamantis George G. Guarantees of Employee Labour Rights at the Conclusion of Employment Contract Under the Laws of Russia, Switzerland and the Netherlands

George G. DIAMANTIS — the post-graduate of the Civil Process and Organization of Bailiff Service Chair of the All-Russian State University of Justice (Moscow), geo-diamantis@mail.ru

Conclusion of an employment contract in the conditions of the modern labor market is one of the main legal means for the realization of the right to work. Research of the legislation of economically developed Western Europe countries as Switzerland and the Netherlands, which evaluate in terms of some peculiarities when providing employees with legal guarantees at the conclusion an employment contract is of particular interest for the purpose of improving and progressive reform of labor legislation in Russia. In this article discusses the general description of the legal regulation of labor guarantees of employee rights, including the prohibition of discrimination, the principle of gender equality, and guarantees for concluding a fixed-term employment contract and particularities for employment of foreign citizens and persons with disabilities under the laws of Russia, Switzerland and the Netherlands.

Employment contract; guarantees of employee labour rights; swiss labour law; dutch labour law

Murashkina Anastasia S. Legal Relationship in the Sphere of Rotation of the Public Civil Servants as a Type of Administrative Legal Relations.

Anastasia S. MURASHKINA — the post-graduate of the Administrative and Financial Law Chair of the All-Russian State University of Justice (Moscow), as_murashkina@mail.ru.

The submitted article is devoted to the analysis of legal relationship in the sphere of rotation of the public civil servants of the Russian Federation. For this purpose, using comparative and system methods of scientific research, the author considers signs of administrative legal relations and on their basis makes an attempt to reveal features of legal relationship in the sphere of rotation of the public civil servants of the Russian Federation as a type of administrative legal relations. Summarizing results of a research, the author gives scientific definition of legal relationship in the considered sphere and formulates a conclusion about primary compliance of legal relationship in the sphere of rotation of the public civil servants of the Russian Federation to the main signs of administrative legal relations.

Legal relationship, administrative legal relations, rotation, civil servants