Annotations № 6 / 2015


Tarasov N. N. (Yekaterinburg, Urals State Law University, e-mail: On the subject of general theory of law and theoretical concepts

The article is devoted to the methodological issues of elaborating of the conceptual system of general theory of law. The methods of juridical concepts initiation and the mechanism of borrowing the branch concepts by general theory of law are investigated. This mechanism is interpreted in terms of methodology.

Key words: law, theory, methodology, concept, subject, doctrine, science, research, jurisprudence

Antonov M. V. (Saint Petersburg, National Research University «Higher School of Economics», e-mail: On the communicative theory of law by Andrey Polyakov

The article considers the principal postulates of the communicative theory of law by Andrey Polyakov, in particular the idea of communication, integrative jurisprudence, interactionism, autopoiesis. In A. Polyakov’s theory, there is a complex of essential ideas borrowed from Russian religious philosophy, i. e. collegiality (sobornost’), integral knowledge, all-encompassing unity (vseedinstvo), and the psychological theory of law by Leon Petrazicki. The Polyakov’s propensity to synthesize the key ideas of the Russian legal discourse and legal and philosophical concepts by leading Western thinkers (Jürgen Habermas, Niklas Luhmann, Edmund Husserl, Werner Krawietz, etc.) is mentioned. The author underscores the connection between the communicative theory and the problems that the Russian theoretical jurisprudence faced after the Soviet period. Examining the methodological postulates of the communicative theory, the author reveals the conceptual matters that arise when ontological, epistemic and other aspects of legal science are intermingled. At the same time, it’s pointed out that the communicative theory has the innovative potential and may contribute to integration of the Russian legal science into worldwide discussions on legal issues.

Key words: legal communication, sociality, normativity, phenomenology, integrative jurisprudence


Kodan S. V. (Yekaterinburg, Urals State Law University, e-mail: Fiction and history of Russian state and law: the touch points

The areas of cooperation of fiction and historical and legal science are determined. The article deals with the methodological problems related to the reflection of the governmental and legal phenomena in arts. Also, it introduces the issues of whether the literary works could be classified as historical sources, and whether fiction could be included into the information base of historical and legal studies.

Key words: legal science, history of state and law, sources of state and law studies, structure of humanitarian knowledge, historical source, artistic historicism


Tolstykh V. L. (Novosibirsk, Novosibirsk State University, e-mail: The myth of the war as a central element of international legal ideology

The author defines the Second World War as an idea which influences the formation of legal ideology. In this capacity, the war is a myth, i. e. an event of the highest transcendental status in relation to reality. Like any other myth, this myth results from the selective reduction of historical events. The direction of such reduction is determined by liberalistic and enlightenment attitudes; consequently, the myth stigmatizes the sphere of political and justifies the sphere of non-political. Marxist and conservative approaches, opposite to the current myth, can be used to promote the formation of new elements of international law.

Key words: Second World War, international law, legal mythology, conservatism, liberalism, Marxism, totalitarianism


Mammadov U. Yu. (Kazan, Kazan (Volga region) Federal University, Protection of the environment during armed conflicts in terms of international environmental law

Considering certain norms and principles of international environmental law, the author comes to the conclusion that the international legal regulation of protection of the environment during armed conflicts is quite unsatisfactory; particularly, in international environmental treaties, there are no explicit provisions on their applicability in a situation of armed conflicts. The author asserts that it’s necessary to continue improving the relevant norms of international environmental law and to strengthen the monitoring of their compliance.

Key words: international law, armed conflicts, international environmental law, international humanitarian law, protection of the environment.

Glotova S. V. (Moscow, Lomonosov Moscow State University, e-mail: The legal preconditions for applying international law within the Russian legal system (example – criminal liability for crimes against international law)

Analyzing the legal preconditions for the application of international law within the RF legal system, the author finds out that the direct application of international norms in criminal law is limited. She asserts that, by virtue of the constitutional priority of principles and norms of international law, the provisions of the RF Criminal Code must be brought into compliance with the Nuremberg principles that have the character of jus cogens. This applies especially to the irrelevance of official capacity, superior order. If it is a conflict between national and international instruments, the principle of interpretation in accordance with international law should be applied. If one wants to define the content of international customary laws, he should refer to the provisions of the Rome Statute of ICC that enshrines the relevant laws.

Key words: universally recognized principles and norms, Rome Statute of International Criminal Court, general principles of criminal law, Nuremberg principles, jus cogens, interpretation of international treaty

Savryga K. P. (Moscow, Federal Security Service of the Russian Federation, e-mail: The right to life as a norm of international customary law, a general principle of international law, and jus cogens

The article touches upon the issue of the status of the right to life in non-conventional international law. The views of scholars studying general and customary international law, as well as the case law of juridical or quasi-juridical bodies are revealed. The author asserts that the right to life, as other indispensable human rights, exists in general and customary international law, moreover, it may be considered as jus cogens. It’s concluded that the provisions on protection of the right to life in general international law differ considerably from those in conventional law and have less restrictive requirements.

Key words: right to life, deprivation of life, general international law, customary international law, jus cogens


Mukhametzaripov I. A. (Kazan, Tatarstan Academy of Sciences, e-mail: The institute of conditional will in foreign countries in terms of religious freedom

The article considers the issue of conditional will with a religious component in common and continental law countries. It analyzes the relation between the principle of freedom of will and the principle of respect for heirs’ rights and freedoms, especially in religious sphere. The author investigates the relevant judicial practice of Australia, UK, Canada, USA, as well as the legislation of Romano-Germanic law countries, such as Belgium, Germany, Netherlands and France. Particular attention is paid to the judgment of the European Court of Human Rights in Pla & Puncernau v. Andorra case (2004). The possible conflicts between the rules of inheritance under Sharia and the current European legislation are represented. On the basis of the analysis of the RF Civil Code provisions on transactions and testaments the author raises the question of whether it is possible to make conditional wills in Russia.

Key words: conditional will, freedom of will, freedom of religion, religious norms

Ivanova M. A. (Pavlodar, Republic of Kazakhstan, Specialized Interdistrict Juvenile Court of the Pavlodar region, e-mail: The peculiarities of civil cases involving a child in the Republic of Kazakhstan

In the article, there is the historical background of the formation of specialized juvenile courts in the Republic of Kazakhstan. The jurisdiction issues of specialized juvenile courts and the peculiarities of cases on the termination of parental rights are revealed. The matter of protecting the rights and legitimate interests of a child in civil proceedings in the Republic of Kazakhstan is analyzed. A special effort is made to taking into account a child’s opinion in civil cases involving a child.

Key words: specialized juvenile courts in the Republic of Kazakhstan, child’s rights protection, taking into account a child’s opinion, judicial decisions


Borodach M. V. (Tyumen, Tyumen State University, e-mail: On the applicability of the legal and regime approach to interpreting the object of public ownership legal relations

There are the results of author’s reflections upon the issues related to determining the object within the structural composition of public ownership legal relations. It is stated that traditional concepts of the object of legal relations, i. e. the monist and plural theories, are imperfect and cannot be used to characterize the object of complicated legal relations, including the generic group of public ownership legal relations. The author proposes to interpret public ownership legal relations primarily as an auto-modulating system that implies the understanding of its object as an element of internal structure of legal relation. Consequently, it is suggested to consider the legal regime of public ownership legal relations as their object which (like the public ownership legal relations themselves) has the constitutional legal nature. This object provides the legal environment, similar to plasma, in order to maintain the interferential mutual impact of all the elements included in the internal structure of public ownership legal relations.

Key words: legal relation, public ownership, object of legal relation, public authority, auto-modulating system, legal regime

Chebotarev G. N. (Tyumen, Tyumen State University, e-mail: A public chamber as an element of the public control system in the subjects of the Russian Federation

The article focuses on the issues of the public control system and its formation in the subjects of the Russian Federation. The author mentions that public chambers can be (and should be) regarded as the main coordinating authority of the public control in the RF subjects. They involve the most competent and authoritative representatives of the civil society.

Key words: public chambers, subjects of public control, coordinating activities of the public control authorities

Kiseleva E. V. (Moscow, Peoples’ Friendship University of Russia, e-mail:, Kazhaeva O. S. (Moscow, METRO Cash & Carry, e-mail: The human rights-based approach towards migration, and the Millennium Development Goals

The authors show how the idea of human rights stated in the UN Charter and Universal Declaration of Human Rights permeates the cooperation of states and becomes a basis for effectiveness of both international legal regulation of migration and use of migration potential for achieving the Millennium Development Goals (MDG). In spite of that, migration is absent from the official list of MDG indicators. Options of including migration in the post-2015 global agenda are briefed further in the article. Uncovering the human rights-based approach towards migration in the context of development is followed by the brief description of an international human rights law basis that has become a prehistory and foundation of the mentioned approach.

Key words: international law, migration, development, international legal regulation of migration, human rights-based approach, Millennium Development Goals


Shiryaev A. Yu. (Kushva, Office of Public Prosecutor of Kushva, e-mail: Assessment of guilt in the context of criminal relevant facts research

The author explores the concept of guilt to compare its content with the content of mental (behavioral) concepts of intent and negligence. He gives examples of criminal acts committed in a state of insanity, necessary defense, while exercising the right; using these ambiguous criminal relevant situations, he investigates the substance of guilt, its features and aspects in the system of cohesive and coherent assessment of criminal relevant facts. The author concludes that assessment of guilt should become a separate act of criminal relevant facts assessment.

Key word: guilt, assessment of guilt, intent, negligence, criminal relevant fact

Kokotova D. A. (Yekaterinburg, Urals State Law University, e-mail: Is it possible to replace amnesty with decriminalization?

The article deals with the enactments on amnesty adopted during the existence of the Russian Federation, as well as the shorthand reports of the State Duma’s sessions. It’s ascertained that the amnesties granted during the existence of Russian Federation weren’t aimed at changing the norms criminalizing certain acts. The author comes to believe that it’s inadmissible to replace amnesty with decriminalization.

Key words: amnesty, decriminalization, conditions for exempting, qualification of crime, norms criminalizing an act


Matveev M. M. (Yekaterinburg, Urals State Law University, e-mail: On the content of tactical operation

The author examines the content of tactical operation and distinguishes it from the single phenomenon – tactical combination. The interrelation of the structural elements of tactical operation is investigated; classical concepts of its structure are summarized. The place of procedural and operational search actions in the structure of tactical operation is defined.

Key words: tactical operation, tactical combination, forensics


Fedorova M. Yu. (St. Petersburg, Constitutional Court of the Russian Federation, e-mail: Geopolitical factors of a social risk and their influence on national social security systems: the legal aspects

A social risk is regarded as a foundation for social security. It is concluded that the structure of a social risk consists of risk-related events (reaching the retirement age, illness, disability, child’s birth, etc.) and its consequences, which could be overcome with social payments, benefits and services assignment. The importance of the external mechanism of determining social risks is underlined. This mechanism manifests in factors of a social risk – circumstances which either directly or indirectly promotes its occurrence. Basic (permanent) social risk factors arise from the essence of a man as a biological species, functioning of society as a social and cultural system, and the economic aspects of social labor organization. Among secondary factors, there are geopolitical factors caused by territorial and geographical peculiarities of the country, as well as the global politics. The author notes that the national social security systems are influenced by such geopolitical factors, i. e. geographical, military, migration, and integration factors. She concludes that it’s necessary to take into account all of these geopolitical factors while managing social risks.

Key words: social risk, social security, social security system, social risk factors, geopolitical social risk factors.


Bublik V. A. (Yekaterinburg, Urals State Law University, e-mail: Currency regulation in Russia: from the present to the future

The article deals with the currency operations. The problems of «residence», restrictions of currency operations, liability for breaking these restrictions are investigated. The authors’ conclusions are based on the analysis of the relevant studies and judicial practice.

Key words: foreign currency, residents and non-residents, currency operations, repatriation of foreign currency, payments in foreign currency


Kruglov V. V. (Yekaterinburg, Urals State Law University, e-mail: Organizational and legal measures for environmental protection under contemporary economic circumstances

The article touches upon the issue of improving the state and municipal management, analyzes types of organizational and legal measures for environmental protection and their interaction in today’s economic situation.

Key words: environmental policy of the Russian state, governance, organizational and legal measures for environmental protection


Balakina Z. V. (Yekaterinburg, Urals State Law University, e-mail: Legal problems of interpreting the concept of a beneficial owner of income in the Russian tax legislation

The article deals with the issues of interpretation and application of the international tax anti-avoidance concept of a beneficial owner of income found in Articles 7 and 312 of the RF Tax Code. The author reveals and elaborates a number of shortcomings of the definition of this concept and the mechanism of its application introduced in the Tax Code. Actually, in the Code, there is the approach that implies mixing the concept of a beneficial owner of income with the concept of a beneficial owner of companies, as well as using the «look through» principle of passive income taxation. Such an approach seems to be incompatible with an essence of the international tax concept, the approaches established in the OECD’s Commentary, and international jurisprudence; moreover, it’s inappropriate for fiscal goals. The author offers practical recommendations for improving the legal regulation of the concept of a beneficial owner of income in Russia.

Key words: beneficial owner of income, persons having the actual right to income, concept of a beneficial owner of companies, «look-through» principle of passive income taxation, Avoidance of Double Taxation Agreements


Smirnov V. N. (Yekaterinburg, Urals State Law University, e-mail: The lawyers’ life in the post-war decade. The Urals in 1946–1956

The lawyers’ life in the post-war decade could be described in a few words: «taking no account of the Ministry’s dictate». And even 30 years after the establishment of Soviet authority, the Ministry of Justice kept fighting steadfastly against those who had «a relic of the bourgeois advocacy». Actually, lawyers felt sure that their duty is not to serve «the interests of justice», to assent to prosecutors, but to argue with them and consequently uphold the legitimacy, truth and justice for their principal’s benefit. Advocacy had been able to overcome the substantial losses of staff caused by the War, and to multiply its gains. Lawyers stood together to protect their colleagues who either «aroused political distrust» and were «purged» by the Ministry of Justice in 1948 or came under the attack in 1956 after active counteracting prosecutors in trials. All of these events are covered in the article.

Key words: Central Committee of the All Union Communist Party (Bolsheviks), Ministry of Justice, legal commission of the Ministers’ Council of the RSFSR, presidium of the collegium of advocates, Stalin, directive bodies, political distrust, relics of the bourgeois advocacy, enemy of the people, last purge, adversarial character of the proceedings and equality


Voropanov V. A. (Chelyabinsk, Russian Presidential Academy of National Economy and Public Administration (Chelyabinsk Branch), e-mail: Legal regulation of incorporating the local systems of courts into the legal system of the Russian Empire in the first half of the 18th century

It’s claimed that authorization of the local systems of courts promoted successful integration of politically independent areas (Revel and Riga provinces, Malorossiya, etc.) into the Russian Empire. The results of their consecutive adapting in the legal system of the Russian Empire were fixed in its legislation. The cooperation with the Kalmyk khanate in the fields of administering justice is revealed.

Key words: Russian Empire, right, court, legislation

Oleynik I. I. (Ivanovo, Russian Presidential Academy of National Economy and Public Administration, e-mail:, Oleynik O. Yu. (Ivanovo, Ivanovo State Power University, e-mail: The establishment of the cassation institute in Soviet proceedings: the historiography research

The authors mention that the number of papers devoted to the history of the cassation institute is currently growing; nonetheless, there is still no any view summarizing results of scientific understanding of its evolution. This article attempts to fill partially this gap, and therefore analyzes the development of the cassation institute in Soviet proceedings from historiography perspectives. The material is articulated according to the «branch» principle, not the chronological one; thanks to this approach the historiography of the establishment of the Soviet cassation could be thoroughly examined.

Key words: cassation, Soviet proceedings, Soviet civil and criminal process, historiography