№ 2 (137) / 2021
PROBLEMS OF LEGAL EDUCATION
♦ A new nomenclature of scientific specialties in the context of the development of legal science and training of scientific personnel (interview with E. Gracheva)
THEORY OF LAW AND STATE
Osintsev D. (Yekaterinburg) Law: science or project?
The key paradigm of legal research is that the issues of jurisprudence are treated as a special branch of scientific knowledge. Hence, some conclusions, approaching the level of dogma, are made that the sphere of jurisprudence has its own unique laws, deviations from which are false doctrines that could not be introduced into the normative sphere, as well as into the further law realisation and law enforcement practices. At the same time, there are no doubts that the composition of information about legal realities does not contain elements of the structure of scientific knowledge (descriptions of activities, knowledge, ontology, theories, means, methods, subject). Moreover, the object of legal science is not a given that can be studied and (or) investigated but a created reality formed in the course of various practices of establishing legal relations and legal regimes of subjects’ activities. This state of affairs indicates the program and design practice in the course of studying legal phenomena where the knowledge component is replaced by «ideas on paper», the validity of which is assessed not by summing them up under a concept (theory) but through the feasibility and translatability of norms-projects.
Key words: object and subject of jurisprudence, knowledge in jurisprudence, legal modelling, legal design
Malinova A. (Moscow) «Interest» as a legal concept: problems of doctrinal definition
The article substantiates that the concept of «interest», widely used not only in many sciences, including jurisprudence, but also in almost all branches of domestic law, should be free from excessive «psychologicalisation». This, in turn, allows us to look back critically on the prevailing idea in modern domestic law theory, according to which, the only reason for interest is the «conscious need to meet the need». It is suggested that, to formulate a definition of interest, you should use not the specific meanings of this concept (frequently synonymous), but the generalisation of a higher order. «Permission», «need», «necessity», «opportunity», «desire» – all of these concepts, as well as other ones used in modern law when formulating the definition of «interest», need an additional generalisation. Such a generalisation could organically include many of the current definitions of «interest». The only one that is able to do this is universality, and a term «well-being» may become such universality. This concept is not «vague», as often stated in the legal doctrine. The well-being of members of society, insofar as it corresponds to the basic system of values, must be subject to public provision and protection. The interest is only a prerequisite or an element of the well-being of a particular subject. Such a condition or element in each case can be considered a need, a necessity, an opportunity, a permission, etc.
Key words: interest, legitimate interest, category, definition, doctrinal definition, awareness, necessity, need, desire, well-being, prerequisite of well-being
METHODOLOGY OF LAW
Akishin M. (Saint Petersburg) Empirical and theoretical levels of historical and legal knowledge
The author considers the problem of empirical and theoretical levels of knowledge, which was raised in the context of the natural-scientific revolution of the 17th century and is still relevant in modern times, in relation to historical and legal knowledge. The focus is on the discussion about the specifics of social and human sciences in the philosophy and methodology of science. The analysis of the empirical and theoretical levels of historical and legal knowledge leads to the conclusion that it is able to establish and reveal the theoretical laws of the historical development of law and the state, the history of political and legal doctrines.
Key words: philosophy of science, historical and legal knowledge, empirical and theoretical levels of knowledge
INTERNATIONAL LAW
Ispolinov A. (Moscow) The principles of autonomy and priority of EU law as a weapon of the European Court of Justice in the conflict with investment arbitration. Part 1. Achmea case
The article assesses the judgment of the Court of Justice of the European Union in the Achmea case firstly as a culmination of the conflict between international investment law and EU law in relation to the intra-EU bilateral investment treaties concluded in the last decade of the 20th century and secondly as an application by the CJEU of the principles of autonomy and priority of EU law when resolving this conflict. The article describes the historical roots of the conflict as well as the factual circumstances of the Achmea case. It also reveals the initial foundations of the principle of autonomy of EU law developed by the EU Court and the features of its application to the international treaties concluded by the European Union and its member states. The author argues that the Achmea judgment is a logical development by the CJEU of its articulation of the necessity to preserve the autonomy of EU law when concluding international treaties, which has already started in the Kadi-I judgment and the Opinion No. 2/13. Nevertheless, the Achmea judgment left unresolved some important questions that had arose just after its delivery. For instance, this is the question of whether the CJEU reasoning in Achmea could be applied to intra-EU investment disputes under the Energy Charter Treaty as well as to the obligations of the EU member states under the ICSID convention. Legal uncertainty emerged after the Achmea judgment requires further steps from the side of the CJEU and the EU member states in the nearest future.
Key words: Court of Justice of the European Union, investment arbitration, autonomy of EU law, primacy of EU law, international treaty, Achmea case
COMPARATIVE JURISPRUDENCE
Savitskiy P. The status of committees within the chambers of parliaments in France and Belgium: a comparative legal analysis
The article examines the features of the composition, the formation procedure and the activities of standing, temporary and special committees within the chambers of the legislative bodies of the French Republic and Belgium. It is noted that the standing commissions play a leading role in the legislative process in the states under consideration. The author highlights the similarities and differences in the status of the commissions of these countries.
Key words: parliament, chamber of parliament, standing commission, temporary commission, legislative process, France, Belgium
D’yakonova O. (Moscow), Lazareva L. (Vladimir) Regulation of the liability of a specialist as a participant of court proceedings in the EAEU member states
Despite the fact that a specialist can be brought to criminal, administrative and procedural liability, in the EAEU member states, there is no uniform approach to determining the liability of a specialist when performing identical functions in various types of legal proceedings and other types of jurisdictional activities. The authors conduct a comparative study of the norms of the current legislation of the EAEU member states regarding the legal relations in this field, which are close to the legal traditions of Russia. The article draws attention to the legislative and law-enforcement problems of calling a specialist to account for giving knowingly false evidence, explanations or advice (opinion). Among the reasons for this, according to the authors, are heterogeneous doctrinal and legislative approaches to the definition of such concepts as «knowingly false judgments (explanations)» and «erroneous judgments (explanations)». The authors substantiate the need to specify the liability of a specialist and give it an identical definition in all types of Russian judicial proceedings and other types of jurisdictional activities, taking into account the equivalence of the committed act and the established liability.
Key words: legal proceedings, specialist, special knowledge, expert opinion, liability, EAEU
CONSTITUTIONAL LAW AND PROCEDUR
Bleszczyk A. (Yekaterinburg) Identification of distortions in the legislation and a communicative approach to law: experiences of legal expertise of legal acts
The article is devoted to the analysis of objective and subjective distortions in the legislation revealed during the expertise of legal acts and their drafts. The author draws attention to the fact that traditional methods of legal expertise of legal acts, based on a positivist methodological approach, do not allow to reveal hidden defects in legal texts. According to the author, alternative methodology, such as a communicative approach to law, give modern experts more opportunities and tools to identify legislative defects. From the communicative approach to law, the main task of legal expertise is to determine whether a legal norm (a system of such norms combined into a legal act) correctly reflects the legal (communicative) content. The use of these methodological principles during the legal expertise makes it possible to identify a number of deliberate legislative distortions, for instance, a qualified silence in law-making, inaction of the legislator, a rule-making palliative and a rule-making imitation. In conclusion, the author analyses the main symptoms of legislative distortions and formulates a number of practical recommendations for lawyers who deal with the legal expertise of draft legal acts.
Key words: legal expertise, communicative approach to law, legislative defects, legislative distortions, rule-making imitation, rule-making palliative
CRIMINAL LAW AND PROCEDURE
Sidorova E., Ivanova A. (Irkutsk) On some problems of a multiplicity of crimes in the Russian criminal law
The article reveals the essence of the category of a multiplicity of crimes. Arguments in favour of the legislative consolidation of the concept of a multiplicity of crimes are presented. The features of qualification of a set of acts that form several independent crimes are considered, the possibility of taking them into account as qualifying signs of one crime, bypassing the use of the institution of a set of crimes, is assessed. A brief description of the system of crimes and punishments of the criminal legislation of foreign states is given. The possibility of taking into account the fact of a criminal offence committed by a person on the territory of a foreign state in case of recurrence of crimes in the Russian Federation is considered. The authors propose to include in the Criminal Code a new article that consolidates the concept of a multiplicity of crimes, and to amend Art. 17 of the Criminal Code of the Russian Federation.
Key words: multiplicity of crimes, recidivism, solitary complex crimes, criminal record, interests protected by the criminal law
QUESTIONS OF INVESTIGATION AND OPERATIVE-RESEARCH ACTIVITY
Ryabenkaya N. (Kaliningrad) The role of cooperation of law enforcement agencies in the investigation of crimes committed by migrants
The article deals with the issues of interaction of law enforcement agencies in the investigation of crimes committed by migrants. Some practical problems arising in the implementation of international cooperation in criminal cases are presented. The author offers options for solving some of them by developing the regulatory framework and preparing recommendations for law enforcement officers.
Key words: interaction of law enforcement agencies, international cooperation, investigations, migrant
CIVIL LAW AND PROCEDURE
Tryapochkin N. (Yekaterinburg) Third parties who do not institute independent claims for the object of the dispute as subjects of admission
The article examines the issue of the need to identify third parties who do not institute independent claims for the object of the dispute as subjects who are given by the law an opportunity to make an admission. The author focuses on the fact that today this issue is still relevant for the Russian civil process. He finds out whether it is possible to apply one of the previous concepts of understanding the legal nature of the admission of a third party who do not institute independent claims for the object of the dispute. The author concludes that the concept developed by T. M. Yablochkov in the pre-revolutionary period is still relevant. At the same time, the author puts forward some ideas aimed at developing and improving this concept. In particular, the discussion touches on the procedural and legal consequences of the acceptance of an admission made by a third party who do not institute independent claims for the object of the dispute, the lack of such acceptance, as well as the passive behaviour of the party whose interests are infringed by the third party’s admission.
Key words: civil process, admission of facts, plaintiff, defendant, court, third parties who do not institute independent claims for the object of the dispute
Bazhina M. (Yekaterinburg) Main regularities in the development of the legal regulation of the carrier’s status
The author touches upon the norms of the Soviet legislation devoted to the legal regulation of the carrier’s status and compares them with the relevant norms of the current Russian transport legislation. She reveals the main features of the Soviet era, which had a great influence on the development of the transport legislation (nationalisation, stated-controlled economy). The article addresses the key peculiarities of the carrier’s legal status in Soviet times related to the lack of a unified approach to the designation of a carrier, its organisational and legal form, its special legal personality, etc. According to the author, the performed analysis allows us to determine the main regularities in the development of the carrier’s legal status, to identify the reasons for the fragmentation and inconsistency of modern transport legislation and to outline the prospects for improving the legal regulation of the carrier’s status.
Key words: carrier, Soviet legislation, enterprise, nationalisation, stated-controlled economy, vehicle, business entity
ADMINISTRATIVE LAW AND PROCEDURE
Domchenko A. (Yekaterinburg) Legal force of a legal act: a property of an official document or an element of discursive coordination?
The article is devoted to the study of the phenomenon of legal force of a legal act and its category. The author puts forward a number of arguments that problematise the possibility of considering the legal force of a legal act as a property of an official document. At the same time, based on philosophical and methodological grounds, the author concludes about the communicative nature of the legal force, which allows us to consider it as an element of discursive coordination.
Key words: legal force of a legal act, official document, legal consequences, hierarchy of legal acts, discursive coordination
ECONOMICS AND LAW
Nefedov B., Istomin N. (Moscow) Features of the development of intersystem legal formations designed to regulate personal data protection during cross-border transfer
The article deals with the stages of development of intersystem formations created by states for the legal regulation of cross-border relations in the field of personal data protection during cross-border transfer carried out with the use of new information and communications technologies. The study reveals four stages of the emergence and development of intersystem formations: starting from the establishment of the right to privacy (one of the most fundamental human rights that provided a basis for the emergence of the separate right to protection of personal data) and leading to the creation of intersystem formations in order to regulate personal data protection during cross-border transfer. Such intersystem formations consist of the norms of national law, the international legal norms, the norms of foreign law, and also the corporate norms of private legal entities authorized by international law as rules of law.
Key words: cross-border legal relations, intersystem formations, protection of personal data during cross-border transfer
Kurdyumov M. (Moscow) To the role of letters of the Federal Antimonopoly Service and the Bank of Russia in the Russian legal system
Letters of executive authorities are significant in practice but criticized in legal science. Despite the stepwise measures, which indicate the state’s recognition of the special place of these letters and the implementation of the category of acts that contain legislation interpretation and have normative features, an unambiguous understanding of the role of letters in the Russian legal system has not been developed yet; at the same time, these letters are sometimes devoted to the issues important to society. The author determines the place of letters of executive authorities in the Russian legislative system, based on the analysis of the practice of the Federal Antimonopoly Service and the Bank of Russia that issue the letters concerning banking competition. The author investigates the current legal regulation of the issue and the legal positions of the higher courts. Specific examples of letters of executive authorities, their influence on the legal system and on law enforcement are investigated. The author asserts that cancelling such letters due to the formal aspects is inadvisable and the adoption of them is most likely to expand in the future.
Key words: letters of executive authorities; acts that contain legislation interpretation and have normative features, Federal Antimonopoly Service, Central Bank of Russia, lawmaking, law enforcement
PAGES OF HISTORY
Yashchuk T. (Omsk) Discussions of law historians in the late 1930s – 1940s
Discussions are a way of developing science. In the Soviet period, the first discussion on the problems of the history of state and law took place in the late 1930s – 1940s. It was a period of institutionalisation of the history of state and law as a science and academic discipline. In that period, not scientific but educational publications were discussed. In 1940, the first textbook on the history of the state and law of the USSR by S. V. Yushkov was published. Previously, S. V. Yushkov had published a synopsis of lectures of similar content. Both papers became the subject of discussion. The most active opponent was S. A. Pokrovsky. The discussions were public and officially supported. The disagreements were reflected in the reviews that were published in the leading law journal «Soviet State and Law». Extended meetings of the editorial board were held. Critical remarks mainly concerned the content of the discipline, the presentation of certain subjects, the interpretation of events and facts. Incorrect borrowings from the pre-revolutionary works, especially textbooks, were noted. Issues related to the subject of science, periodisation, methodology were of less interest due to their complexity. The discussions ended with the approval of the conceptual provisions presented by S. V. Yushkov.
Key words: history of state and law, history of science, Soviet state and law, scientific discussions
Loshkareva M., Savenkova S., Dolkova E. (Nizhny Novgorod) Medicine in the early medieval law
The article studies the legal aspects of practical medicine in the early Middle Ages, prior to the development of universities and the emergence of professional medicine. A text analysis of continental barbarous law codes, ancient Russian monuments of law, early Anglo-Saxon and early Celtic legislation enables to make a number of judgments about medieval medical practices and the human body, as well as the role and legal status of people responsible for healing. A comparative analysis of legal codes recorded in the VI–XIII centuries allows us to establish a number of common features of secular legislative tradition in medieval Europe regarding the ideas of the human body and healing practice, and also to highlight some significant differences. Medieval law codes have a lot in common in terms of severity of injuries and their consequences. Secular regulation of curative practice was rather limited; most of the laws provided compulsory treatment and the participation of healers in the assessment of wounds and other damages, but the legal status of a physician and his liability are specifically established only in a few law codes. It is noteworthy that in some cases this could be explained by the tradition of Roman law (Visigothic code), while other legal sources (Welsh Law of Hywel Dda and Brehon law) are considered completely free from Roman influence.
Key words: medieval law, legal status of physicians, barbarous law codes, The Law of Hywel Dda, medieval Irish law, medieval Swedish law
MUSEUM OF SLI – USLA – USLU HISTORY
Zipunnikova N., Kalinina A. (Yekaterinburg) Student science at the law university (from the history of the Ural State Law University, 1918 – mid-1940s)
In 2021, the Museum of the History of SLI – USLA – USLU will celebrate its 10th anniversary. The authors indicate a promising task of studying the activities of the teaching staff and employees of the law university, and, along with this, draw attention to another group of «university people» – students – and to their research activities. They attempt to reconstruct student science at the law faculty of the Irkutsk State University, which later became an independent institution, from 1918 to the mid-1940s. It is revealed that the main form of scientific work of students were student scientific clubs, which were gradually supplemented by other forms (competitions, conferences). Dynamics and specifics of such activities are shown. Attention is drawn to the fact that, even in the difficult wartime, the student science continued to evolve. The authors make a conclusion about the continuity in this area of university development. They illustrate this point with the example of the Student Scientific Society club on the history of state and law of Russia with elements of museum and archival work.
Key words: Irkutsk State University, Sverdlovsk Law Institute, Ural State Law University, scientific club, student science, legal science, legal education