Annotations № 3 / 2014
ECONOMICS AND LAW
Sergeev A. M. (Yekaterinburg, Urals State Law University, e-mail: ec_theory@usla.ru) Methodological and conceptual foundations of constitutional economics
The article discusses the conceptual terms of constitutional economics (constitutional political economy), developed by Nobel laureate in economics James Buchanan. The author aims to define more precisely the subject domain and methodological foundations of this complex scientific and academic discipline. The purpose of the article is to disclose and justify key aspects of the economic approach to the theory of constitution. The author impartially evaluates interpretations of the subject of constitutional economics given by some Russian legal scholars and economists.The content of analytical principles is determined, the interrelation between these principles and the conceptual terms of constitutional economics is shown. It is concluded that constitutional economics is important and productive for shaping the constitutional way of thinking, formulating and conceptual solving the problems of development of the Russian constitutionalism.
Key words: Buchanan, constitutional choice, constitutional economics, contractsionizm, social contract
Borzilo E. Yu. (Moscow, Russian School of Private Law, e-mail: Borzilo@rambler.ru) The criteria for determining a dominant position: a review of legislation
The author examines the methods used in Russia and abroad for determining a dominant market position and tries to answer what percentage can indicates the dominant market position in different jurisdictions. Further the author comes to conclusion that Russian law enforcement is committed to defining the dominant position on the basis of the share.
Key words: antitrust legislation, competition, business entity, market, product, dominant position, market power, share, entry barriers
COMPARATIVE JURISPRUDENCE
Solovarov V. V. (Moscow, Ministry of Economic Development of the Russian Federation, E-mail: solovarovvictor@rambler.ru) Direct foreign investments in Brazil: state regulation and protection methods
The joint sources of state legal regulation of direct foreign investments in Brazil, as well as state and private (commercial arbitration) methods of foreign investors’ protection are considered.
Key words: direct foreign investments, Brazil, international currency market, commercial arbitration
Bleschik A. V. (Yekaterinburg, Urals State Law University, E-mail: bleszczyk@yandex.ru) National policy and regulation of national relations in foreign federations
The origin of multinational federations of India, Belgium and Yugoslavia, the models of organization of national policies in these states are considered, the issues of inter-ethnic cooperation and legal regulation of national and federal state-building in these countries are examined. The author analyzes an impact of ethnic identity factor on state-building.
Key words: national policy, India, Belgium, Yugoslavia, federation, multinational state
INTERNATIONAL LAW
Galiakberov A. S. (Kazan, Kazan Federal University, E-mail: user-del@yandex.ru) Regional legal integration in the light of a new institutional theory
Nowadays the issues of regional legal integration become more relevant to legal science. At the same time it’s impossible to go by only the legal research methods in order to explore a complex legal nature of legal integration. A new institutional theory which content is most similar to the legal methods, allows to take a fresh look at the various aspects of legal integration.
Key words: regional integration, new institutional theory, regionalization, WTO
Sukhova O. V. (Yekaterinburg, Urals State Law University, E-mail: kuznetsovaov1@rambler.ru) Monetary integration processes: problems of definition
Different approaches to definition for integration, its causes and incentives in an international law doctrine are analyzed. Monetary integration is examined on the example of the Latin Monetary Union and the Scandinavian Monetary Union. Various types of monetary groupings such as monetary units and monetary zones, their peculiarities and differences are considered. The classification of monetary integration associations is given.
Key words: integration, international law, monetary integration, monetary union
CRIMINAL LAW AND PROCEDURE
Oboleninov A. A. (Kurgan, Kurgan Municipal Court, E-mail: oboleninov@rambler.ru) Concealment of crimes: prospects for development of legislative regulation
The issues of interpretation of a concpt «concealment of crimes» in the judicial practice are considered. The questions of related concealment, expantion of categories of crimes, which concealment is punishable are examined. The analysis of the foreign criminal legislation concerning the mentioned crime is given. Ways for improving the legislative regulation of concealment of crimes are proposed.
Key words: concealment of crimes, comparison, Criminal Code of the RF, relatives, spouse
Dyadyun K. V. (Vladivostok, Vladivostok Branch of Russian Customs Academy, E-mail: Kristina.dyadyun@yandex.ru) Reglamentation of objective sighs of corpus delicti provided by the art. 145 of CC of the RF: the issues of improving the legislative approach and law enforcement
Article 145 of the CC of the RF, the issues of its conditionality and enforcement are analysed. Objective signs of corpus delicti are examined with account of their correlation to the labour legislation and implementation practice of art. 145 of the CC of the RF. Different points of view on the existing difficulties are considered, the author’s edition of the analyzed norm is given.
Key words: employer’s unjustified refusal, unfair dismissal, pregnant woman, presence of young children, labor protection
Tokarchuk R. E. (Kemerovo, All-Russian Research Institute of the Ministry of Internal Affairs of the Russian Federation, E-mail: Snaiperkem@yandex.ru) Gaps and excesses of the criminal legislation of the RF concerning certain forms of stealing. Ways to overcome them
Gaps and excesses of criminal law, caused by the peculiarities of separation of corpus delicti of theft, plunder, robbery and extortion are revealed. It is proposed to criminalize generic corpus delicti of stealing, regardless of the mode of action, to group special corpus delicti of stealing on a common basis, to exclude the specific names of corpus delicti of stealing and to consider crimes against the person comitted as part of stealing as independent.
Key words: stealing, theft, pluder, robbery, extortion, assault, demand, violence, threat
Zinchenko V. G. (Yekaterinburg, Judge, E-mail: zinchenko43@mail.ru) Discussing issues of jurisdiction in criminal proceedings
The article is devoted to some discussing issues caused by implementation of p. 1 of art. 47 of the Constitution of the RF that guarantees that no one may be deprived of the right to the consideration of his or her case in the court and by that judge in whose whose cognizance the given case is according to law. The author highlights the peculiarities of relevant judicial practice, reveals contradictions between the rules of criminal procedure and mandatory instructions of the Supreme Court of the RF that forms judicial practice.
Key words: Constitution of the Russian Federation, Constitutional Court of the Russian Federation, inadmissibility of conflicts of jurisdiction, Convention for the Protection of Human Rights and Fundamental Freedoms, International Covenant on Civil and Political Rights
Kotlyarov I. D. (Saint-Petersburg, National Research University «Higher School of Economics», E-mail: ivan.kotliarov@mail.ru) A fresh look at the functions of the penitentiary system: a service approach
A new approach to the functions of the penitentiary system is considered. It is shown that the penitentiary system provides individuals sentenced to serve the sentence with a specific service product called «execution of the sentence».
Key words: penitentiary system, punishment, service, resocialization
QUESTIONS OF INVESTIGATION AND OPERATIVE-RESEARCH ACTIVITY
Bakhteev D. V. (Yekaterinburg, Urals State Law University, E-mail: Dmitry.bakhteev@gmail.com) Levels (standards) of proof as stages of transition from probability to reliability of information
The article is devoted to an investigation of crime and the criminal case in the court in terms of the dynamics of transformation of incomplete knowledge into the system of evidence, provided with signs of reliability and sufficiency. Definitions for the concepts «reliability», «probability», «levels of proof» are proposed.
Key words: proof, levels of proof, probability, reliability, sufficiency
ADMINISTRATIVE LAW AND PROCEDURE
Sherstoboev O. N. (Novosibirsk, Novosibirsk Law Institute (branch) of the National Research Tomsk State University, E-mail: sherson@yandex.ru) A theory of interests in administrative-legal dimension: on the example of expulsion of foreign nationals outside the host country
Some problems of theory of interests implementation in administrative law are discussed. This theory has been applying in legal science for quite a long time. It is necessary to distinguish private and public branches of law. Subjects of administrative law also have their own interests. The legislator should reflect these interests in the norms of law and the executive authorities and the courts should ensure their proper implementation. In the U.S., this theory can be applied directly, in Germany it is realized by means of the principle of proportionality, which is inherent in the countries of continental legal family. The Russian practice is based on the principles similar to the German ones. Implementation of the theory of interests in administrative law is shown on the example of expulsion of foreign nationals outside the host country. It seems that the Russian model of expulsion is adapted for perception of theory of interests. This is proved with some acts of the Constitutional Court, corresponding to the position of the European Court of Human Rights.
Key words: administrative law, theory of interests, principle of proportionality, foreign nationals, expulsion
Beketov A. O. (Omsk, Omsk Academy of the Ministry of Internal Affairs of the Russian Federation, E-mail: beketov_ao@mail.ru) Consideration of complaints by the head of the investigative authority: administrative-procedural and criminal-procedural order
The article is devoted to the theoretical and practical problems of delimitation of the administrative-procedural and criminal-procedural order of appeal. The author underlines the inadmissible to substitute one orders for another, and adds that legal regulation of consideration and resolution of complaints under art. 124 of the CCP of the RF is too inadequate. Some solutions to identified problems are offered.
Key words: appeal, consideration of complaints, head of the investigative authority, administrative-procedural order of appeal, criminal-procedural order of appeal
Konovalova L. G. (Barnaul, Altay State University, E-mail: vaskova82@yandex.ru) An impact of the Constitution of the Russian Federation norms on the content and application of law on administrative responsibility
The importance of the Constitution of the RF for the branch institute of administrative responsibility is considered. The author primarily analizes a legal position of the Constitutional Court, interpreting the content of the constitutional and legal norms in respect to concrete relationship. All acts of the Constitutional Court of the RF in the field of administrative responsibility should be subdivided into acts concerning the principles of administrative responsibility, acts regulating correlation between the CAO of the RF and laws of subjects of the RF as a source of regulation of administrative responsibility, acts concerning the matters of imposing administrative penalties, acts regulating proceedings on an administrative offense, and acts defining the further development of law on administrative responsibility. In conclusion the author marks the fundamental importance of the constitutional-legal norms for the development of the legislation on administrative responsibility.
Key words: law on administrative responsibility, Code of the RF on Administrative Offences, legal position of the Constitutional Court of the RF
PROCURACY SUPERVISION
Filipenko S. V. (Yekaterinburg, Branch of General Prosecutor’s Office in the Urals Federal District, E-mail: prnad@usla.ru) The issues of preparation and implementation of the prosecutor’s protest used for supervision over the implementation of laws
An analysis of the legal issues caused by preparation and implementation of the protest as an act of prosecutor’s response is presented. The author touches upon the use of protest as one of the main acts of prosecutor’s response used for supervision over the implementation of laws.
Key words: prosecutor, protest, act of prosecutor’s response, administrative responsibility, order, legal act, the prosecutor’s request, collegial body, law making
CIVIL LAW AND PROCEDURE
Stepanchenko A. V. (Yekaterinburg, Urals State Law University, E-mail: a.step72@gmail.com) On ownership of non-cash foreign currency and its vindication
Basing on an analysis of the legislation, law enforcement acts, scientific literature the author proves the possible existence of property rights to foreign currency in cash and non-cash forms and asserts that vindication rules can be applied to money.
Key words: money in cash and non-cash form, foreign currency, property rights, ownership, vindication
Nastin P. S. (Yekaterinburg, LLC «Real-Leasing», E-mail: p_nastin@mail.ru) Corporate relations in civil law: theoretical and practical aspects
A brief review of definitions for corporate relations suggested in civil science is given. The author reveales that in legal definition for corporate relations there are no clear indication of the range of regulated relationships and no clear criteria for establishing such relations. Breaking the logical rules of interpretating the concepts due to the lack of legislative interpretation of the concepts «corporate organization», «participation in the corporate organization», «management of corporate organization» is shown. Some changes of the legislation are proposed.
Key words: corporate relations, corporation, corporation management, participation in the corporation
Kostin A. A. (Moscow, Collegium of advocates «Khrenov and Partners», E-mail: a.kostin@yklaw.ru) Some aspects of recognition and enforcement of foreign judicial acts in the arbitral procedure of the RF
Recognition and enforcement of the foreign judicial acts in the arbitral procedure of the RF are considered. In particular, correlation between the concepts «recognition» and «enforcement» of foreign judicial acts, as well as the categories of such acts that don’t require recognition and enforcement within the territory of the RF are examined. The author considers the types of the foreign judicial acts and special nature of their recognition and enforcement.
Key words: recognition and enforcement of foreign judicial acts, foreign judicial act, international civil process
Fedotov D. V. (Yekaterinburg, Urals State Law University, E-mail: Dmitry-lawyer@yandex.ru) The problem of imposed enrichment in civil law
The article deals with the return of property illegally obtained besides or against the purchaser’s will. Using the English concept «priority of payments», the author proves that such property is usually not refundable. The author describes the exceptions to this rule.
Key words: unjust enrichment, restitution of property, will
Baradachenkova N. E. (Yekaterinburg, Urals State Law University, E-mail: baradanchenkova@gmail.com) An analysis of views on the «concept competence of the court» in the science of the Russian civil process
The article is devoted to the concept «competence of the court». The author describes the views on the concept «competence» suggested in science, analyzes them and argues for including certain features in the content of this concept.
Key words: competence, authority, object of competence, judiciary
LABOUR AND SOCIAL LAW
Podvyaznikova M. V. (Omsk, Omsk Law Academy, Е-mail: pmv-89@bk.ru) Medicine supply of people affected by rare (orphan) diseases
The concepts «orphan diseases» and «orphan drugs» are considered. A particular attention is paid to availability of treatment for rare diseases. The author concludes that it’s necessary to change the legislation on free provision of orphan drugs and to set up a special mechanism of medicine supply of orphan patients.
Key words: orphan diseases, drug coverage, treatment availability
LEGAL ASPECTS OF ECOLOGY
Luneva E. V. (Kazan, Kazan Federal University, E-mail: vilisa_vilisa@mail.ru) Legal incentives and constraints in regulation of property relations, which objects are land plots in specially protected natural areas
The legal incentives and constraints as a system legal entity, that has an impact on participants of property relations, which objects are land plots in specially protected natural areas are considered. It is concluded that the prevalence of limiting legal means determines the peculiarities of civil legal regime of such land plots, generally considered as limiting, as well as an orientation of civil legal regulation, that becomes sort of protective.
Key words: legal incentive, legal constraint, public interest, private interest, land plot, specially protected natural area
STUDENTS BULLETIN
Ispenbetova L. A. (Astana, Kazakstan, Kazakh Humanitarian Law University, E-mail: unbekannt_l@mail.ru) A legal analysis of the EurAsEC Court activity in the context of Eurasian integration
A legal analysis of the Court of the EurAsEC practice is conducted, problems in its activity are revealed. The further development of the Court in the context of Eurasian integration is considered.
Key words: EurAsEC Court, ECE, Eurasian integration, Eurasian court, Customs Union
LEGAL HERITAGE OF RUSSIA
Approaches to teaching of law in assessment of Russian professors and lawyers