Annotations № 2 / 2015

PUBLIC ISSUES AND POLITICAL SCIENCE

Borodach M. V. (Tyumen, Tyumen State University, e-mail: supanova@yandex.ru) On the legal nature of the institution of public property and its role within the scope of Russian statehood components

The research concerns the issue of determining the legal nature of the institution of public property, as well as its place and role within the scope of Russian statehood components. The author highlights the need to address the issue mentioned above because it hasn’t been clarified by contemporary scholars yet. He proposes to use the axiological approach to the analysis of characteristics and appearances of public property. Basing on this approach, the author comes to the conclusion that public property has a pure constitutional and legal (public and legal) substance and should be considered within the scope of primary Russian statehood components such as sovereignty, territory, republican government, federalism, democracy, human rights and freedoms as the supreme value, and others.

Key words: public property, public authority, public interests, public needs, property legal forms

COMPARATIVE JURISPRUDENCE

Savitskiy P. I. (Yekaterinburg, Urals State Law University, e-mail: kp@usla.ru) Constitutional regulation of international relations in Latin American countries

The article touches upon the principles of international relations, legal status of the head of state, treaty process, and a linkage between the rules of international and internal law enshrined in the constitutions of Latin American countries.

Key words: Latin America, international relations, principles, treaty, agreement, concordat, integration, competence, ratification, head of state

Gribanov D. V. (Yekaterinburg, Urals State Law University, e-mail: ip@usla.ru) Reasonableness and law in the Anglo-Saxon legal system

The article examines the concept of reasonableness in law as a topical matter of the Anglo-Saxon legal system. Reason is often pointed out as an independent source of law; however, the idea of this source isn’t defined. At present, there is an increasing interest in the concept of reasonableness both in theory and practice. But a comprehensive understanding of it in legal science has not developed yet. The author shows that in English literature, there are different views on the definition of reasonableness. In attempts to establish a common concept of reason as a source of law and a clearer presentation of it, in some cases the researchers interpret it as a kind of reasonable means to fill gaps in statute law, in others – as an everyday occurrence, a heart of common law.

Key words: reasonableness, law, judicial decisions, Anglo-Saxon legal system, common law

INTERNATIONAL LAW

Keshner M. V. (Kazan, Kazan (Volga region) Federal University, e-mail: mvkeshner@rambler.ru) Collective countermeasures taken against the Russian Federation: the issue of legitimacy

The author analyzes collective countermeasures, or measures taken in the collective interest, applied by the European Union and a number of states and directed against Russia. Its validity is challenged. The use of collective countermeasures, its tendencies and lawfulness in the light of contemporary international law are explored.

Key words: international sanctions, countermeasures, collective countermeasures, international responsibility, unilateral coercive measures

Liubashenko V. I. (Odesa, Ukraine, National University «Odesa Academy of Law», e-mail: viacheslav.liubashenko@gmail.com) On the Responsibility to Protect in international law

The issue of the nature of the Responsibility to Protect in international law is considered according to researchers’ views and positions of UN’s member states. The author asserts that the R2P, as defined in The Responsibility to Protect report released by the International Commission on Intervention and State Sovereignty in 2001, is non-binding both at global and regional level. It’s proved that the R2P didn’t turn into the norm of international law after its consolidation in the 2005 World Summit Outcome document, however, it could be regarded as a form of state’s obligation and kind of responsibility. In addition, the author considers the position of regional organization on the R2P. The article concludes that the Responsibility to Protect hasn’t the binding nature as an international law norm, thus, it’s described as «soft law».

Key words: Responsibility to Protect, humanitarian intervention, military action, international law concepts

CONSTITUTIONAL LAW AND PROCESS

Chulichkova I. V. (Yekaterinburg, Urals State Law University, e-mail: evg.chulichkova@mail.ru) Constitutional regulation of the right to a healthy environment: the responsibilities towards future generations

The author reveals an essence of the constitutional principle of the responsibilities towards future generations, its social and philosophical foundations and its role in constitutional regulation of the right to a healthy environment. Also, the legal category «future generations» is explored in terms of subjective and value-based approaches. According to the first approach future generations are recognized as holders of rights, according to the second one the interests of future generations represent a supreme value, and their legal support is based on the principle of the responsibilities towards future generations which are an abstract occurrence.

Key words: future generations, responsibility, principle of constitutional regulation, subject of law, right to a healthy environment

Magomedova K. K. (Makhachkala, Dagestan State University, e-mail: Civilprocess71@mail.ru) On the constitutional principle of transparency of the judiciary

The article is devoted to the constitutional principle of transparency of the judiciary that derives from the analysis of the Russian Constitution norms (part 1 of Article 1, part 1 and 2 of Article 3, part 2 of Article 24, Article 29, part 1 of Article 123). This principle is a result of a general need for transparency of state activities applied to the juridical system. Its core components are listed.

Key words: judiciary, constitutional principle, transparency, publicity, openness

CRIMINAL LAW AND PROCEDURE

Maksimova Ye. V. (Yekaterinburg, Urals State Law University, e-mail: ecoland@usla.ru) On the criminal law protection of land relationships

The current development of land relationships in Russia is considered. It’s pointed out that civil remedies and administrative measures for land preservation are inadequate. The author lists offences related to the protection of land relationships. In addition, she proves that the legal regime of the land plot should be protected by criminal law, and proposes a draft article of the Criminal Code of the RF, which criminalizes violation of the land plots legal regime.

Key words: land plot, land relationships, general law protection, criminal law protection, legal regime of the land plot

Serebruev I. V. (Yekaterinburg, Urals State Law University, e-mail: i.v.serebruev@gmail.com) Criminal and legal characteristics of illegal trademark use: setting up a problem

The author investigates the rules of criminal and other branches of the Russian legislation protecting or regulating relations in the sphere of trademarks, as well as the relevant cases. The purpose of the research is to point out criminal and legal characteristics of illegal trademark use and to develop recommendations to improve the appropriate norm of the Criminal Code of the Russian Federation. The author comes to a conclusion that the criminal provisions establishing responsibility for illegal trademark use don’t adequately protect the exclusive rights to means of individualization and need enhancement.

Key words: economic activity, unfair competition, trademark, illegal trademark use

CIVIL LAW AND PROCEDURE

Glibko O. Ya. (Petrozavodsk, State Research Institute of Lake and River Fisheries (Karelian Branch), e-mail: karelniorh@mail.ru) The issue of the dual lease of land plots in the Russian legislation

The author investigates the dual lease of land plots developed in the forestry legislation, its concept, relevant legal provisions and problems of their interpretation, grounds for its origins, types of the dual lease, and the criterion of compatibility of different types of forest use. The article reveals main challenges posed by re-allocating of leased woodland plots, including the necessity of the first lessee’s consent to create a plot, and by shared use of woodland plots. The last amendments made to the land legislation of the Russian Federation are analyzed. In particular, they introduce the prohibition of superimposing the right to permanent (termless) and free-of-charge use of land plots on the lease right and set up the right to demand the establishment of servitude on land plots for the resource users in order to avoid the dual lease.

Key words: dual lease, woodland plot, multipurpose use of forests, consent to create a land plot, servitude

Zharkova O. S. (Smolensk, law firm «Zharkova-Garant», e-mail: os-z@mail.ru) Competition between leading judicial systems, institutions and jurisdictions in Europe

The author reveals advantages and disadvantages of Britain and German juridical systems and institutions. She describes specially developed documents and cases aimed at making the national jurisdictions of these states more attractive for foreigners. Besides that, the author points out several trends characterizing competition between the juridical systems mentioned above, such as demonstration of benefits of own juridical system, adaptation of borrowed rules and procedures to the national legal system, indication of disadvantages of the competing judicial system and disavowal of its traditional values.

Key words: case law, Britain juridical system, Roman Dutch law, German Ministry of Justice

Kravchenko A. A. (Moscow, The Russian Presidential Academy of National Economy and Public Administration, e-mail: a.a.kravchenko88@gmail.com) The correlation of measures of protection and measures of liability as civil remedies

The author examines the legal nature of measures of protection and measures of liability. His purpose is to divide civil remedies into measures of protection and measures of liability. First of all, the author analyzes the essence of liability, and concludes that the fault is a basic element in the civil liability mechanism. Further, the author criticizes approaches both demarcating measures of protection and measures of liability and identifying them. The concepts «civil remedies», «measure of protection» and «measure of liability» are defined. Particular attention is paid to the practical purposes of the issued relation. It is concluded that measures of protection and measures of liability are the forms of civil remedies not their types. Taking into account that legal relations and norms can be split into protective and regulatory, the author asserts that measures of protection and measures of liability are protective forms of civil remedies. It’s concluded that the civil remedy is universal: depending on the conditions of different legal norms the same civil remedy can take the form of a measure of protection or measure of liability.

Key words: liability, measure of protection, measure of liability, guilt, forms of civil remedies, protective civil remedies

ECONOMICS AND LAW

Chukreyev A. A. (Tyumen, Tyumen State University, e-mail: aachukreyev@mail.ru) On the legal definition of business activities

The author explores the signs of business activities laid down in Article 2 of the Civil Code of the Russian Federation. So, the business activity shall be an independent activity performed at one’s own risk, aimed at systematically deriving a profit from the use of the property, the sale of commodities, the performance of work or the rendering of services by the persons, registered in the capacity of a legal entity or individual businessman in conformity with the law-established procedure. The author comes to the conclusion that this legal definition is not correct. He points out that systematic character is a sign of the business activity itself, not a sign of deriving a profit, and offers to formalize this idea in the legislation. Moreover, the necessity of legislative consolidation of business transactions system is stated. Particular attention is paid to the problem of the legal qualification of the lease of property as a business activity. It is proposed to legislate the right of citizens to rent property owned by them under the property right without state registration in the capacity of individual businessmen. In conclusion, the author offers his own definition of business activities.

Key words: business activities, legal definition, individual businessman, illegal business activity, business transactions

Trubinova Ye. I. (Perm, Perm State National Research University, e-mail: ekaterina.trubinova.law@yandex.ru) Prospects of consumer protection against acts of unfair competition in the context of national normative regulation

The current model of legal regulation does not imply consumer protection against acts of unfair competition. The use of legal modeling and systematic interpretation allows coming to the conclusion, according to which the persons, who are authorized to preventing acts of unfair competition, are not only economic actors, but also voluntary organizations of consumers seeking to protect the rights and interests of an uncertain circle of persons.

Key words: unfair competition, economic actors, consumers, right for information, voluntary organizations of consumers

Mazo M. A. (Yekaterinburg, Urals State Law University, e-mail: mariamazo@mail.ru) Juridical constructions of ensuring the conflict of interests in the joint-stock company

Juridical constructions of ensuring the conflict of interests in the joint-stock company are investigated. The author touches upon the goals and objectives of ensuring the conflict of interests in the joint-stock company, proposes the main juridical constructions for achieving them. There is a classification of juridical constructions depending on the industry, functionality, possibility of applying the construction to all or certain actors of the conflict of interests. The features of juridical constructions applying are considered.

Key words: conflict of interests, joint-stock company, juridical construction

LABOUR AND SOCIAL LAW

Khavayashkhov A. A. (Moscow, Kutafin Moscow State Law University, e-mail: Anzor90@bk.ru) Complexity of persons on the employer’s side in the foreign legal doctrine

Complexity of persons on the employer’s side has the same origins both in Russian and foreign law. The scientific works of foreign scholars are analyzed. The classification of complexity of persons on the employer’s side, its grounds and related challenges are revealed. The author indicates that the labour legislation of many countries including Russia doesn’t meet the current level of business management development, and offers the legal and practical solutions to address this issue.

Key words: employer as a unitary entity, vertical disintegration, real employer, corporate group, functional approach

SPECIAL CASES

Churyaev A. V. (Oryol, The Academy of Federal Security Guard Service of the Russian Federation, e-mail: churyaev@rambler.ru) A favour for a favour?

The article raises the issues concerning recovery of unjust enrichment from persons, whose losses had been reimbursed and who saved unjustly the unserviceable property.

Key words: civil liability, losses, reimbursement, unjust enrichment

PAGES FROM INVESTIGATOR’S DIARY

Drapkin L. Ya. (Yekaterinburg, Urals State Law University, e-mail: ruzh@usla.ru) Page sixteen. «Little episodes of the large case»

This is the continuation of an autobiographical essay presented by the prominent criminalist of modern Russia – professor L. Ya. Drapkin.

Key words: criminalist, investigator, criminalistics, versions, prominent

ON THE 150TH ANNIVERSARY OF COURT STATUTES OF 1864 AND 140TH ANNIVERSARY OF PROFESSIONAL ADVOCACY IN THE URALS

Smirnov V. N. (Yekaterinburg, Urals State Law University, e-mail: up@usla.ru) The Great Patriotic War in the Ural lawyers’ life

The slogan «Everything for the front, everything for Victory» had become a rule of life for many Soviet citizens, and lawyers were no exception. The author shows how the juridical defense services were adapted to the wartime needs, and mentions that lawyers took part in the Defense Fund. Also he introduces the lawyers’ memories about their experiences on the frontlines and in the rear.

Key words: Great Patriotic War, Red Army, mobilization, front, evacuation, re-evacuation, refugees, court-martial, government loan, Defense Fund, tank column «Soviet lawyer», I. V. Stalin, Victory, Hero of the Soviet Union.

PAGES OF HISTORY

Voropanov V. A. (Chelyabinsk, The Russian Presidential Academy of National Economy and Public Administration (Chelyabinsk Branch), e-mail: vvoropanov@yandex.ru) The organization of judicial activities and administration of justice in the area of former Golden Horde in XVI–XVII

The specific nature of the organization of judicial activities and administration of justice in the area of former mongol-turkic states is highlighted. It’s stated that historical, geographical, sociocultural and other features of provinces were taken into account in order to develop the judicial system and legal proceedings. The central and local judicial authorities played stabilizing role of justice bearing in mind the priority of military and political, financial and economic and other interests of the state.

Key words: history of law, proceedings, court, justice

CHRONICLE

♦ The correlation of international and national law: theory and practice

A brief review and theses of some reports presented at the conference devoted to the correlation of international and national law held in late November, 2014 in USLU are given.

Key words: international law, national law, correlation, conference

Kayumova A. R. (Kazan, Kazan (Volga region) Federal University, e-mail: alfiya_kaumova@inbox.ru) International and national law: correlation, jurisdictions, development trends

The author touches upon the issues of the correlation of international criminal and national criminal law, international criminal law and jurisdictions in the international legal system, national and international criminal jurisdiction.

Key words: correlation, international criminal law, national criminal law, principles of national and international jurisdiction

Kozheurov Ya. S. (Moscow, Kutafin Moscow State Law University, e-mail: abc646@mail.ru) The war of «sanctions» and the law of international responsibility

The author explores the legal nature of the measures taken by some countries and Russia in relation to the events in Crimea and in the East of Ukraine, and evaluates them with regard to international responsibility.

Key words: international responsibility, sanctions, countermeasures

Titova T. A. (Yekaterinburg, Urals State Law University, e-mail: mp@usla.ru) On the 25th anniversary of the Convention of the Rights of the Child

The author gives a general characteristic of Convention on the Rights of the Child and touches upon the issue of juvenile justice.

Key words: Convention on the Rights of the Child, juvenile justice

Vedel I. A. (Yekaterinburg, Urals State Law University, e-mail: mp@usla.ru) Diplomatic protection and consular assistance: relationship between international and national legal regulation

The author takes the relationship between international and Russian law as a starting point and analyzes the relationship between international and national law regulating diplomatic protection and consular assistance.

Key words: diplomatic protection, consular assistance, relationship between international and national law

Bushmelyova D. B. (Yekaterinburg, Urals State Law University, e-mail: mp@usla.ru) Types of international cooperation in education

The article is devoted to different types of international cooperation in education. The author deals with following types of cooperation: international exchange, joint working, foreign students’ training financed from the State budget, recognition of foreign diplomas, international trade in education services.

Key words: education, international cooperation, treaties on education

Kordyukova Ye. S. (Yekaterinburg, Urals State Law University, e-mail: mp@usla.ru) Immunity of State officials from foreign criminal jurisdiction or criminal prosecution: issues and trends

The article is devoted to the rules of customary international law regulating immunity of State officials from foreign criminal jurisdiction. The author concludes that contemporary international law permits an institution of a criminal case against a foreign State official enjoying immunity, but the principle of par in parem non habet imperium still prevails over the trend to «remove» the immunity.

Key words: immunity from foreign criminal jurisdiction, State official, criminal prosecution, exceptions to the rule on immunity

Mrikh A. S. (Yekaterinburg, Urals State Law University, e-mail: mrih@mail.ru) The international union movement and international framework agreements in the context of globalization

The article concerns the international union movement history and reveals the role of international framework agreements in coping with problem caused by globalization of the economy.

Key words: globalization, trade unions, international framework agreements, multinational enterprise

MUSEUM OF HISTORY OF SLI – USLA – USLU

Zakharov V. V. (Kursk, Kursk State University, e-mail: zaharov.72@mail.ru) Lawyers suited for the dictatorship of the proletariat: the Legal Education Reform of 1931

On the basis of archival documents related to the development of the Soviet Legal Institute the article presents the reasons and functional aspects of the Legal Education Reform of 1931 in the Russian SFSR. The author claims that the Soviet government tried to establish a new format of lawyers’ trainings based on political loyalty, specific knowledge, and practical skills. The ways to achieve them were localization of higher legal education in the Soviet law institutes, social and political qualification for acceptance for studies, adding a large number of social and political courses to the curriculum, training in theoretical knowledge acquisition and practical field experience under a higher education institute, specialization. The Reform of 1931 involved original and challenging solutions, however, not all of them had development prospects.

Key words: legal education, soviet legal system, industrialization, lawyers’ trainings, specialization, workers’ faculty, university, law department