№ 2 (149) / 2023
THEORY OF LAW AND STATE
Petryakov I. (Yekaterinburg) The significance of doctrinal legal knowledge for interpretational activity: V. D. Perevalov’s approach
The article discusses V. D. Perevalov’s views on the importance of doctrinal legal knowledge for the implementation of interpretational activity. The author analyses Perevalov’s proposal to rethink the concept of «interpretation» from the standpoint of the contradiction between the dynamics of society and the stability of the law, and agrees with the existence of an objective need to correct the meaning of rules of law. The scientist’s heuristic model, which describes the process and result of interpretation, is analysed. The author agrees with Perevalov that an increase in the proportion of doctrinal knowledge affects the authority of the subject of interpretation and the role of interpretational activity in legal practice.
Key words: legal doctrine, legal position, interpretation of law, trends of interpretation, concretization, result of interpretation
INTERNATIONAL LAW
Likhachev M. (Yekaterinburg) International personality in distorting mirrors of positivism
Yet international legal personality is the core issue of international legal studies. Despite being the emanation of the positivist doctrine the theory of legal subjects is still instrumental in identifying those who (what) law addresses to and who (what) it serves. The preponderance of the non-alternative positivist lenses engenders the distorted image of personality particularly in international law. From this standpoint the latter’s understanding is reduced to consensualism and pure statism. And the international personality amounted to state sovereignty enjoys sacrosanct and mythological features. This constructed legal reality presupposes the dominant and privileged position of one type entities to the detriment of the others, oppressed and subordinated. The international personality unfettered from the rigid positivism is an essential way of the international legal emancipation of those anticipating international law protection.
Key words: international legal personality, international legal person, human being, State, positivism
Ispolinov A. (Moscow) Trying on the One Ring: the International Criminal Court and the immunity of heads of the States
The article deals with the issues of the immunities of the highest officials of the State from the jurisdiction of international criminal courts and tribunals both from a doctrinal point of view and in the light of the practice of modern international courts and tribunals. It is emphasized that the starting point in both cases is the decision of the International Court of Justice of the United Nations in 2002 on the Arrest Warrant case. The doctrine interprets the Court’s provisions as precluding the application of immunities either in the case of the States’ explicit agreement in the treaty to lift such immunities of their officials, or in the case of the adoption of a UN Security Council resolution. However, modern criminal courts and tribunals proceed from the fact that they are international and therefore represent the entire international community. This circumstance, in their opinion, gives them the right to ignore the immunities of senior officials of any State, regardless of its participation in an international treaty or the existence of a relevant UN Security Council resolution. The most eloquent examples of this position were the decisions of the Special Court for Sierra Leone and the ICC Appeals Chamber in the case of Sudanese President al-Bashir. The article provides a critical analysis of the arguments used by both courts, and notes that in the case of the ICC, the adoption of such decisions has become part of the ongoing transformation of this court into a kind of mega-court standing over all States, regardless of their participation in the Rome Statute.
Key words: personal immunity, International Criminal Court, Rome Statute, International Court of Justice
Keshner M. (Kazan) The law of international responsibility of States: from the codification of a branch to the search for alternatives
On 9 August 2001, the UN International Law Commission adopted the final text of the Articles on Responsibility of States for Internationally Wrongful Acts, completing more than 50 years of hard and methodical work on them. In working on the topic, the Commission sought a balance between codification and the progressive development of international law on the one hand, and the interests of States and other actors on the other. In order not to jeopardise the delicate balance set in the final version of the Articles, the ILC left unresolved the issues of grave breaches of obligations to the international community, the resolution of disputes over responsibility, the form of the draft articles on responsibility, countermeasures and sanctions. The issues of joint responsibility and responsibility of States in succession situations were left out of the discussion. The article sums up the results of 20 years of application of the Articles on State Responsibility and attempts to predict their «future», taking into account the key narratives in the field of international State responsibility.
Key words: Articles on Responsibility of States for Internationally Wrongful Acts, codification of international responsibility, joint responsibility, international responsibility of States in succession situations
COMPARATIVE JURISPRUDENCE
Kozlov M. (Yekaterinburg) Prima facie: a standard of proof and a presumption
The article studies the emergence of the concept of prima facie, the rules of application of this procedural mechanism in the common law system and the place of this concept in the Russian civil procedure. The article also draws attention to the fact that, in the common law system, there are two different approaches to the understanding of the term «prima facie evidence». On the one hand, it is a criterion of sufficiency of evidence for consideration of a case on the merits, whereby a party’s refusal to refute evidence does not result in a binding negative decision for this party; on the other hand, it is a presumption, which implies the need for its refutation by the party concerned. It is argued that in the first of these meanings, the term «prima facie» has some similarities with the Russian doctrinal concept of «necessary evidence». It is noted that, in the domestic science of procedural law, there are five main options for interpreting the concept of «prima facie»: 1) a lower standard of proof in relation to the symmetrical standard; 2) a lower standard of proof in relation to the internal conviction; 3) a rebuttable presumption that allows the court to manage the distribution of the burden of proof; 4) a mechanism for «switching on» the increased standard of proof; 5) a criterion of sufficiency of evidence for the redistribution of the burden of proof. Considering the standards of proof as a measure of the judge’s inner conviction, the author believes that prima facie is not so much a standard of proof as a procedural presumption indicating a minimum degree of sufficiency of evidence to decide in favour of the party presenting it in case of failure to refute it by the opposing party.
Key words: prima facie, proof, rebuttable presumption, standard of proof, procedural law, burden of proof
CONSTITUTIONAL LAW AND PROCEDURE
Zaykov D. (Moscow) Court costs in constitutional proceedings: problems of legal regulation
In constitutional court proceedings the importance of the institution of court costs is artificially belittled, that is due to the specifics of the relevant relations, its rare practical application, as well as the extremely fragmented legal regulation. To resolve the issue of reimbursement of court costs in constitutional proceedings, it is necessary to simultaneously apply three normative legal acts, which were adopted by bodies of different status and competence and contain conflicting norms. This leads to legal uncertainty and violation of the applicants’ rights to reimbursement of court costs. To resolve this problem, it is necessary to fix in the Federal Constitutional Law «On the Constitutional Court of the Russian Federation» the main provisions regarding the procedure for reimbursement of court costs and the procedure for considering relevant issues by the Constitutional Court of the Russian Federation.
Key words: court costs, constitutional proceedings, Constitutional Court of the Russian Federation, applicant, representative, translator
CIVIL LAW AND PROCEDURE
Malbin D. (Moscow) Legal nature of a claim for the release of property from arrest: criticism of established concepts
One of the controversial issues of legal science is the question about the legal nature of a claim for the release of property from arrest. There are widely represented points of view, according to which the claim for the release of property from arrest is, by its nature, a vindication or negatory claim, a claim for recognition of the right and an independent method of protection. The claim for the release of property from arrest cannot be recognized as a special real-legal method of protection, because such a claim can be applied to any property that is arrested and, therefore, cannot be qualified as a vindication or negatory claim. The vindication nature of the claim for the release of property from arrest is also contradicted by the «indifference» of the possession of property for the resolution of the arisen dispute; and the purpose of the plaintiff in such a claim is not to return the property to their possession but to exclude the possibility of foreclosure on this property. The said claim cannot be attributed to negatory ones, because a negatory claim is not filed in disputes about the right to property, unlike the claim for the release of property from arrest.
Key words: property, possession, arrest, dispute about the right, claim
ADMINISTRATIVE LAW AND PROCEDURE
Lifanov D. (Yekaterinburg) Some problems of appealing acts of public authorities: theory and judicial practice
The article discusses the current problems of application of legal norms regulating the pre-trial procedure for appealing administrative acts. Special attention is paid to the violation of procedural requirements when considering appeals against decisions, actions (inaction) of public authorities and their officials. The features of the pre-trial resolution of appeals in the context of digitalization are analysed. Some recommendations for law enforcement officers regarding the improvement of the pre-trial procedure for administrative appeal are outlined.
Key words: pre-trial appeal, administrative procedures, public authorities, administrative appeal, procedural form
Fedotov S. (Yekaterinburg) The use of the results of operative-research activities in control (supervisory) activities
A comparative analysis of operative-research and control (supervisory) activities is carried out, the signs of each type of activities are determined, and their partial similarity is found. One of their similarities is the procedures through which both activities are implemented. It is noted that operative-research activities and control (supervisory) actions are actually equivalent, but the result of their implementation is legally significant information with different content. It is proposed to introduce into legal circulation the concept of «general procedural action», which will give such actions a single procedural form.
Key words: control (supervisory) activities, operative-research activities, survey, verification purchase, control purchase, monitoring purchase, general procedural actions
LABOUR AND SOCIAL LAW
Mitryasova A. (Tyumen) Legal regulation of IT support measures and labour rights of IT-specialists
An important role in the process of digital transformation of society is assigned to IT-specialists engaged in the creation and maintenance of information technology infrastructure. There is currently a shortage of IT-specialists in the domestic labour market. The state solves this problem comprehensively and takes various measures to support employees of the IT-sector: a moratorium on scheduled and unscheduled inspections in 2022–2024 has been introduced for IT-companies included in the register of accredited organisations of the Ministry of Digital Development of the Russian Federation; IT-specialists have been granted a deferment from military service; the parameters of a preferential mortgage programme for IT-specialists have been approved. The author finds out whether these support measures comply with the current legislation, evaluates their effectiveness and concludes on the need to adjust some of them (for example, it is proposed to cancel the unconditional moratorium on inspections against IT-companies).
Key words: digitalization of society, specialists of IT-companies, measures to support the IT-industry, moratorium on inspections of IT-companies, deferment from military service for IT-employees
ECONOMICS AND LAW
Tarikanov D. (Moscow) The characterization of the Islamic talaq in private international law of France
The Islamic talaq is a divorce that is realized by the unilateral declaration of the husband, i. e. a unilateral deal, which does not require the State confirmation for its legal force, whereas in European laws the will of the spouses to dissolve the marriage transforms the legal status of these spouses only after the decree has been issued by the State bodies (the court or the executive). Recognition of the Islamic talaq in the European legal order can be carried out using either the conflict of laws method applied in the European legal systems in relation to transactions, or the method of procedural recognition applied in the European legal systems in relation to foreign public acts. In France preference is given to the approach of procedural recognition. This decision is based on the theory of functional characterization of the talaq: since in the native legal order the talaq performs a function that is assigned to a public act in the French legal order, the talaq is regarded as a public act by means of a fiction. This approach ensures the achievement of legal certainty.
Key words: talaq, Islamic divorce, conflict of laws method, procedural recognition, recognition of foreign judgments, functional characterization
Yakusheva E. (Moscow) Modern tax incentives for high-tech companies: features and prospects
A topical issue of economic policy of the modern State is the development of high-tech industry and production that significantly increases the economic, innovation and scientific potential of the country; the transition to a high-tech type of economic development is reasonably recognised as a strategic task of the State. Such development is ensured by a number of financial and legal incentives, primarily in the field of taxation. The article considers a phenomenon of high-tech companies and analyses the tax incentives applied to high-tech companies, including those operating in the IT-sphere, and the measures to improve legislation in the area under study. Some features of the legal regulation of tax incentives for the activities of high-tech companies are revealed. It is noted that the current tax incentives for high-tech companies, due to the legal imperfection of the norms enshrining them, cannot be regarded as sufficient to achieve the planned and expected level of support for the high-tech sector of the economy.
Key words: high-tech company, taxes, tax incentives, high-tech production, information technology, IT-sphere, innovation projects
LEGAL ASPECTS OF ECOLOGY
Chaliapin G. (Moscow) Features of admission of farmers to water resources under the conditions of updated legislation
The article studies and evaluates the practice of applying new provisions of the Water Code of the Russian Federation related to admission of farmers to water resources. In general approving the mentioned legislative novelties, the author recommends to optimise the work of authorised bodies in issuing to applicants decisions on granting a surface water body for use.
Key words: Water Code of the Russian Federation, decision on water use, water bodies, aquaculture, water register
MUSEUM OF SLI – USLA – USLU HISTORY
Zipunnikova N., Kalinina A. (Yekaterinburg) Commemoration as the basis of continuity in legal education and science (to the 105th anniversary of the Ural State Law University named after V. F. Yakovlev)
Addressing the topic of memory – historical, cultural, scientific, law and university – the authors focus on commemoration and its practices. Some approaches to the understanding of commemoration and its role, as well as to the typology of remembrance practices are examined. The particular relevance of commemoration in the educational and scientific sphere, among young people, including students, is emphasized. The attention to the problems of memory at the Ural State Law University named after V. F. Yakovlev is characterized as significant. University practices of remembrance, both museum and other, are described and systematised. The Museum of University History is presented as the most important place of memory of the university corporation; the main directions of its activities in the context of preserving memory and ensuring the continuity of university generations are outlined. Jubilee, memorial, nominative, ceremonial and other commemorative acts are described. In 2023, the university celebrates its 105th anniversary, the attention to which actualises the memorial and jubilee problems. The authors draw a conclusion about the significance of university-law commemoration for the preservation of university traditions, interest in its history and continuity of legal education and science.
Key words: legal education and science, Ural State Law University named after V. F. Yakovlev, museum, places of memory, historical, cultural, scientific, legal and university memory, commemoration, practices, continuity