№ 6 (147) / 2022

THEORY OF LAW AND STATE

Belkanov E., Puchkov O. (Yekaterinburg) Law as the highest form of humanism in the creative heritage of V. D. Perevalov

The article outlines the main results of the scientific work of the major Russian lawyer V. D. Perevalov. The authors distinguish three key areas of his research: study of the subject of law and the subject of the political system; study of a wide range of problems of relations between man and law, the legal system; study of problems of legal education in modern Russia. It is noted that Perevalov’s research has given an additional impetus to modern Russian jurisprudence, the basis of which should be the trinity of humanism, man and law.

Key words: law, legal system, subject of law, humanism, legal education

INTERNATIONAL LAW

Al Ghanimi J. B. (Kazan) The role of the United Nations High Commissioner for Refugees in protecting the rights of environmental migrants

The Office of the United Nations High Commissioner for Refugees (UNHCR) today departs from the formal legal requirements formulated in the convention and statutory provisions to address the current problems associated, among other things, with environmental migration. Since 1972, the mandate of the UNHCR has been extended to address certain issues of environmental migration, in particular, the movement of people caused by environmental disasters. The UNHCR assists countries in the implementation of the 1992 UN Framework Convention on Climate Change. The ­UNHCR has recently begun to publish materials on the impact of natural and climatic factors on migration processes.

Key words: environmental migration, migration, migration law, international law, international environmental law

CRIMINAL LAW AND PROCEDURE

Belichenko R. (Saint Petersburg) On the need for legal regulation of accounting by the courts of diminished responsibility when sentencing

The author describes the current state of the legal regulation of accounting by the courts of diminished responsibility when sentencing and some issues of court practice in this connection. Foreign legal regulation of sentencing persons with diminished responsibility is studied. Modern domestic research on the issue is analysed. The author presents her conception of legal regulation of accounting by the courts of diminished responsibility when sentencing based on the consequentialist conception in law and the humanistic approach.

Key words: diminished responsibility, mitigating circumstance, sentencing, consequentialism

Tydykova N. (Barnaul) On the problems of cumulative qualification of sex crimes

The article studies the problems of cumulative qualification of crimes against sexual freedom and sexual inviolability of the individual, which are typical for law enforcement practice. The possibility of cumulative qualification of rape or sexual assault committed immediately after committing indecent assault against the same victim is substantiated. It is concluded that, in some cases, cumulative qualification of sexual crimes is artificial, and this requires correction of law enforcement practice. It is pointed out that, when rape and sexual assault were committed against one victim and the circumstances of their commission indicate the common intent of the perpetrator (which can, in particular, be proved by their commission within a short period of time), a final punishment should be imposed within the sanction of one article. The decision of the legislator to supplement Art. 131 and 132 of the Criminal Code of the RF with para. «c» of part 5 is critically evaluated. It is argued that sexual assault and indecent assault should not be qualified as cumulative when, in the period of committing such acts by using information and telecommunication networks, the victim reaches the age and state in which they cannot be recognized as helpless, and the perpetrator continues committing acts united by a single intent with the previous acts committed when the victim is under 12 years old.

Key words: rape, sexual assault, indecent assault, cumulative crimes

Tsyretorov A. (Irkutsk) Abolition of the private prosecution institution: pro et contra

The article analyses the initiative of the Supreme Court of the Russian Federation to transfer private prosecution cases to the category of private-public prosecution criminal cases, which actually leads to the abolition of the private prosecution institution in domestic criminal proceedings. Considering the arguments of the initiator of the bill, the author, relying both on the features of the crimes for which private prosecution cases are initiated, and on the available foreign experience, argues that it is inadvisable to abandon the private prosecution institution. The private prosecution institution, which has become traditional for domestic criminal proceedings, according to the author, is one of the tools for the formation of civil activity as an integral element of civil society. The author makes several proposals on possible ways to improve it, aimed at achieving the maximum accessibility of justice, as well as recommends to create special legal instruments for protecting victims of domestic violence.

Key words: private prosecution institution, private prosecution cases, domestic violence, public interest, private-public prosecution, private prosecutor

CIVIL LAW AND PROCEDURE

Monastyrsky Yu. (Sevastopol) Civil law liability for non-performance of obligations in Russian civil law

The article discusses the content and correlation of the concepts of «force majeure», «impossibility of performance» and «delay», which are particularly relevant in the current economic situation. The author criticises certain provisions of the Civil Code of the Russian Federation, in particular Art. 416 and 405, and notes that the legislator had mechanically transferred some rules from the Soviet legislation. It is argued that these provisions run counter to such fundamental principles of continental law as pacta sunt servanda and stability of obligations. The author concludes that it is unnecessary to distinguish the characteristic of (in)foreseeability for the concepts of «force majeure» and «impossibility of performance»; besides that, the concept of «delay» should be interpreted uniformly, and it cannot be the basis for the termination of a contract.

Key words: force majeure, delay, obligation, termination of obligation, impossibility of performance

Zaykov D. (Moscow) Collection of the penalty and abuse of rights: problems of correlation and interpretation

Reduction of the penalty, which is the most common way to ensure the fulfillment of obligations, is widely used in the practice of arbitration courts as a mechanism to achieve a balance of rights and legitimate interests of the parties to the contract. However, superficial legal regulation and ambiguous interpretation of the procedure and grounds for reducing the penalty, as well as the multidirectional development of judicial practice, in which measures to counteract the abuse of the right took a significant place, led to the formation of different approaches used by arbitration courts in resolving issues of reducing the penalty. This situation harms compliance with the principles of legal certainty, equality, justice and autonomy of the will when the plaintiff (creditor) exercises his right to judicial protection by collecting the penalty from the defendant (debtor) who has delayed the performance of the obligation. The article considers the features of the implementation by arbitration courts of the requirements of Para. 1 of Art. 333 of the Civil Code of the Russian Federation, as well as its circumvention when establishing the fact of abuse of the right to freely determine the amount of the penalty by the plaintiff. The author concludes that it is necessary to adjust the existing approaches of judicial practice, which are based on paternalism towards the defendant – the violator of contractual obligations, and the reduction of the penalty is unreasonably carried out by applying the provisions of Art. 10 of the Civil Code of the Russian Federation.

Key words: reduction of the penalty, abuse of rights, contract, good faith, freedom of contract

Povarov I. (Samara) Issues of the admissibility of giving consent to a transaction through a representative

Extrapolating the prescriptions of Para. 4 of Art. 182 of the Civil Code of the Russian Federation (ambiguously interpreted in the doctrine and judicial practice) on relations associated with giving consent to a transaction by a third party, the author considers the (un)justified interpretation of such consent as a transaction of a strictly personal nature and the (in) expediency of establishing in the law restrictions on the use of the representation mechanism. It is proved that there are no grounds for the «automatism» of such a qualification (including the sanctions of legal representatives on transactions by citizens with limited legal capacity and the consent of the financial manager to the transaction by the debtor) or the introduction of a general ban on giving consent through a representative. Considering the influence of the strictly personal nature of the confirmed transaction on its approval, the author states that it is unjustified to refuse a priori to introduce the approval regime in this situation, and there is no direct relationship between the nature of the authorized transaction and the agreement act.

Key words: consent to a transaction, representation, transaction of a strictly personal nature, legal representative, financial manager

Branovitskii K. (Yekaterinburg) Implementation of the principle of active case management into civil proceedings of the Republic of Kazakhstan

In 2020 the Republic of Kazakhstan carried out legislative reforms aimed at radical rethinking of the role of the court in civil proceedings. Many of the changes are based on the German procedural model, a significant element of which is the duty of the court to give guidance (Hinweispflicht). The article discusses the main results of reforming the civil procedural legislation of the Republic of Kazakhstan and suggests possible directions for its improvement in the context of further implementation of the principle of active case management.

Key words: principle of active case management, civil procedure of the Republic of Kazakhstan, role of judge in civil proceedings

LABOUR AND SOCIAL LAW

Buyanova M. (Moscow) Features of the procedure for consideration of individual labour disputes between athletes and coaches

Taking into account the amendments made to the Labour and Civil Codes of the Russian Federation in 2021, the author analyses the new procedure for considering labour disputes between athletes and coaches in the bodies of sports federations and leagues and in the National Center sports arbitration, established by the Federal Law «On physical culture and sports in the Russian Federation». It is noted that the pre-trial dispute resolution bodies of sports federations are quasi-judicial. The main advantages of resolving sports disputes within sports federations are listed. The author draws attention to the problem of arbitrability of individual labour disputes between athletes and coaches. Based on the provisions of modern legislation and taking into account judicial practice, the author concludes that all individual labour disputes between athletes and coaches, including disputes about reinstatement, can be brought to arbitration.

Key words: athletes, coaches, sports federations, pre-trial procedure, individual labour disputes, arbitration proceedings

ECONOMICS AND LAW

Vinnitskiy A., Solovyev M. (Yekaterinburg) Public procurement and withdrawal as ways to meet public needs: problems of competition

The article investigates the legislative provisions that regulate the system of ways to meet state and municipal needs, as well as the relevant provisions of the legal doctrine. The authors generalize and analyse the judicial practice of commercial courts in regard to the issues of differentiation of public procurement and withdrawal of land plots along with alienation of immovable property located on them. The primary criteria for distinguishing withdrawal from public procurement are considered. One of these criteria is the exclusivity of withdrawal expressed in the impossibility of meeting state (municipal) needs by means other than compulsory termination of persons’ rights to specific property. The authors conclude that the main (universal) mechanism for meeting state and municipal needs is the implementation of public procurement through competitive and non-competitive procedures provided by the Federal Law No. 44-FZ of April 5, 2013 «On the contract system in the field of procurement of goods, works, services to meet state and municipal needs». All other ways, including withdrawal, should be used when it is impossible to meet timely and effectively the needs of public law entities through procurement activities without a corresponding restriction of the rights of citizens.

Key words: state and municipal needs, public procurement, withdrawal of land for the state or municipal needs, expropriation, public property

Sushilnikov I. (Moscow) The right to a partnership between entrepreneurs and authorities in Russia

The article considers the constitutional and legal foundations for the partnership of entrepreneurs and authorities in Russia, taking into account the amendments to the Russian Constitution of 2020. The author analyses articles 75.1, 80, 83 and 114 of the Russian Constitution on social partnership and economic, political and social solidarity, on supporting civil peace and consent, and supporting civil society. Based on the study of constitutional provisions, scientific works in the field of constitutional law, economics, and sociology, as well as the practice of the Constitutional Court of the Russian Federation, the right to a partnership between entrepreneurs and authorities is distinguished. The author analyses the content of this right, its place in the system of constitutional rights and the powers that constitute this right: to enter into partnership relations with the state in a certain form; to receive support measures from the state; to ensure an equal position of partnership subjects; to exit partnership relations; to create a competitive environment in partnership legal relations, excluding dominance and dishonest behaviour.

Key words: Constitution, public-private partnership, right to a partnership between entrepreneurs and authorities

Baybekov R. (Moscow) Sports leagues in Russia and abroad: features and peculiarities of legal regulation

The author examines sports leagues established under foreign legislation (North American and European) and sports leagues established under Russian legislation. The diversity of sports leagues is the reason for the formation of different approaches to the organization and regulation of their activities. Despite this, the author identifies a list of features that are common to all the organizations under consideration. The study emphasizes that leagues are a product of market relations, so they should be given more freedom. Only if this condition is met, the idea of sports leagues will be fully implemented in Russia.

Key words: sports leagues, professional sports, sports organizations, sports legislation

Shevchenko I. (Saint Petersburg) On the concept of «uniformity of court practice» (by the example of bankruptcy cases)

The author discusses five different meanings of the concept of «uniformity of court practice»: 1) application of same standards of proof; 2) uniform interpretation of laws; 3) application of higher courts’ law-making positions; 4) application of doctrinal concepts developed by higher courts; 5) recognition and uniform solution of doctrinal problems by court practice. Each of the meanings is revealed on the example of court resolution of bankruptcy cases. It is argued that the fifth understanding of the uniformity of court practice is the most profound and correct.

Key words: uniformity of court practice, standards of proof, case law, interpretation of the law

PROBLEMS OF LEGAL SCIENCE AND EDUCATION

Tarasov N. (Yekaterinburg) Social situation and theoretical jurisprudence

The article is devoted to the factors of social influence on theoretical jurisprudence under post-non-classical scientific rationality. Changes in the social contexts of jurisprudence and possible interpretations of the tasks of theoretical research in a changing socio-political situation are discussed.

Key words: law, legal regulation, legal science, methodology, theoretical research, applied developments

PAGES OF HISTORY

Sokolova E. (Yekaterinburg) On the role of «Latinism» in the formation of Theophan Prokopovich’s state-legal views on the instrumental function of estate legislation

The article traces the influence of «Latin» state-legal and theological projects, created by Moscow «scribes» in the second half of the 17^th century, on the organization of monarchical power and citizenship relations. It analyses how the Western constructions of natural law, unlimited monarchy, and class system, transformed in accordance with the tendency to strengthen the autocratic power of Russian monarchs, had influenced the Theophan Prokopovich’s state-legal views. The question is raised about the doctrinal significance of his theoretical and legal heritage for the preservation of the duty nature of the Russian Empire estate legislation as an instrument of the autocratic monarch’s influence on society in order to realize national interests.

Key words: estate legislation, legal policy, unlimited monarchy, Latin projects, Theophan Prokopovich, state paternalism

MUSEUM OF SLI – USLA – USLU HISTORY

Zipunnikova N., Kalinina A. (Yekaterinburg) Museum practices in the training of lawyers: the experience of the Ural State Law University named after V. F. Yakovlev

Museum practices of a particular law school, mainly project-based ones, are examined through the prism of pragmatic methodological turn in modern socio-humanitarian knowledge. The Year of Teacher and Mentor 2023 has actualised the investigation of scientific and practical resources of museum pedagogy. Legal and museum pedagogy accumulates various activities of the university history museum: preservation of historical memory, development of scientific research and knowledge of the experience of legal education and science in the country, as well as university traditions, implementation of youth policy, activation of corporate identity, patriotic education, formation of a professional personality of a future lawyer, etc. By comprehending the traditions and innovations in the development of one of the «memory places» in the law university, the authors attempt to systematize legal and museum practices. The museum component in legal education and life of a student – a «university person» – is shown as non-peripheral.

Key words: legal education, Ural State Law University named after V. F. Yakovlev, museum, museum pedagogy, pragmatic turn, legal and museum project-based practices, university person, Year of Teacher and Mentor

LIBRARY

Book review: Isakov V. B. Speak the language of schemes: a short guide. – 2^nd ed. – Moscow: Norma : INFRA-M, 2022. – 216 p.

Book review: Krasheninnikov P. V. From tribe to empire. The emergence of the Russian state and law. – Moscow: Eksmo, 2022. – 352 p.