Annotations № 6 / 2016

THEORY OF LAW AND STATE

Tarasov N. N. (Yekaterinburg, Urals State Law University, e-mail: tarasov@usla.ru) Legal positivism and positive jurisprudence (an apology of legal dogma)

The author investigates the meaning of «legal positivism», «positive jurisprudence» and their correlation with the scientific cognition. He tries to make clear the understanding of legal dogma and the role it plays in law and science of law.

Key word: methodology, jurisprudence, scientific cognition, legal positivism, positive jurisprudence, legal dogma, legal thinking

Osintsev D. V. (Yekaterinburg, Urals State Law University, e-mail: dimios@mail.ru) The methods of legal regulation or the ways of formulating legal rules?

The author wants to find out how much a method of legal regulation contributes to the legal system development. In his opinion, the current methods of legal regulation dated back to civil doctrines on the methods of creating economic acts are at least inadequate for promoting a comprehensive idea about the social impact of law (the reason, in particular, is the fragmentary or weak manifestation of relevant signs in the sources of law). Besides that, there is no any own method of law in the most part of legal branches despite the attempts to construct them. The author proposes an original approach to the legal system development: in fact, the real method of legal regulation is providing legal prescriptions, since prohibitions, obligations, permissions, provisions are not only the modus operandi under the legal rules, but also the characteristics of any social act. This is exactly an essential feature of social impact of law. The author comes to a conclusion that there is no need to distinguish legal branches; it is more important to explore the characteristics of activity branches in which legal regulation takes place. This legal regulation is determined by a number of universal methods: 1) declarations and nominations; 2) programmes and procedures; 3) protocols of economic deals and transpolations; 4) exception and displacement of undesirable conduct.

Key words: legal regulation, methods and ways of legal regulation, legal means, structure of legal rule, branch differentiation of regulation methods

INTERNATIONAL LAW

Ispolinov A. S. (Moscow, Lomonosov Moscow State University, e-mail: ispolinov@inbox.ru) Success factors of the Nuremberg Tribunal and the current international criminal justice

The author argues that the international criminal justice has recently entered into a highly unstable period of its development. Having this in mind, success and legacy of the Nuremberg Tribunal present a vivid interest and provide proper grounds for reflections on some factors that together promoted a successive work of the Tribunal and turned the states, public, and doctrine towards the acceptance of its results. The author assumes that the challenges of the current international criminal justice have much to do with a tension between its objectives, overrated expectations of the public and doctrine as well as with a lack of those objective factors which led the Tribunal to success.

Key words: Nuremberg Tribunal, international criminal justice, Rome Statute, International Criminal Court

Khuzikhanova A. R. (Kazan, Kazan Federal University, e-mail: khuzikhanova@yandex.ru) The Dispute Settlement Body of the WTO and the international judicial mechanisms of regional economic integration organizations: a conflict of jurisdiction

The author examines the problem of overlapping of judicial jurisdiction of the WTO Dispute Settlement Body and the international courts of regional economic integration organizations. Referring to the current judicial practice she highlights the adverse effects associated with this problem and gives three approaches to their overcoming. At the same time, the author concludes that, in the absence of the adequate judicial practice, it is difficult to determine which of these approaches is encouraging. In the author’s opinion it is necessary to assess the potential legal conflicts and to take measures to prevent them.

Key words: Dispute Settlement Body of the WTO, international courts, regional economic integration organizations, conflict of judicial jurisdictions

Tolstykh V. L. (Novosibirsk, Novosibirsk State University, e-mail: vlt73@mail.ru) An overview of the M. Koskenniemi’s book «From Apology to Utopia: the structure of international legal argument» (the end)

M. Koskenniemi goes beyond the existing discourse of international law and analyzes it from the outside – from the standpoint of philosophy and political theory. This allows not only to explain the content of the substantive concepts, but also to establish the laws of formation of the international legal arguments. The scientist offers the critical approach to international law that involves the recognition of relativity and multiplicity of possible solutions and the search for optimal solutions in the context of a particular situation.

Key words: international law, liberal political theory, doctrine of international law, international legal argumentation, critical approach

COMPARATIVE JURISPRUDENCE

Tomashevski K. L. (Minsk, Republic of Belarus, International University «MITSO», e-mail: k_tomashevski@tut.by) Superflexibility as a development trend of the Belarusian employment law

The author’s hypothesis is that there is a superflexibility trend in the employment law of the Republic of Belarus. This assumption is proved by analyzing the latest Belarusian labour legislation, including the last extensive amendments to the Belarusian Labour Code introduced by the Law of 8 January 2014 № 131-З and the Decree of the President of the Republic of Belarus of 15 December 2014 № 5 «On strengthening of the requirements for managerial personnel and organization workers» which are compared with the Labour Сode rules. The author interprets and specifies new provisions of the Decree and pays attention to contradictions (conceptual as well) between this legal act and the Labour Сode. He assumes that the trend mentioned above is incompatible with the international labour standards formulated by the International Labour Organization as well as with the development trends of the Eurasian Economic Union legislation.

Key words: labour law, labour code, decree, employee, employer, discipline

Klimanova D. D. (Moscow, Kutafin Moscow State Law University, e-mail: udoddasha@yandex.ru) Possessory actions in England, Germany, and Russia: the comparative-legal analysis

The article deals with the emergence and development of the possessory protection in England and Germany from Middle Ages till nowadays, provides insight into constructions of various actions through which the possessor may be protected. It gives comparative characteristics of possessory actions in England and Germany in light of the recent plans to introduce the possessory action rules into the Russian legislation.

Key words: possession, possessory action, possession protection

Kaibzhanov M. Z. (Kostanay, Republic of Kazakhstan, Academy of the Prosecutor General’s Office of the Russian Federation, e-mail: 7142101@prokuror.kz) The socio-demographic characteristics of a perpetrator committed a theft (on the example of the Republic of Kazakhstan)

The author investigates the concept and structure of a perpetrator’s identity, points out the significance of its characteristics for combating crimes. By using the statistics on committing thefts in the Republic of Kazakhstan in last five years and the results of sociological research he considers a number of socio-demographic characteristics of a person committed a theft, i. e. gender, age, social status, and educational level.

Key words: prevention of crimes, perpetrator, identity of a perpetrator, socio-demographic characteristics of a perpetrator

RUSSIAN FEDERATION AND ITS SUBJECTS

Salenko A. V. (St. Petersburg, St. Petersburg State University, e-mail: ASalenko@kantiana.ru) The Kaliningrad region – the 70th anniversary of the Russian Federation special subject

In 2016 the Kaliningrad region celebrated a duel anniversary: on the one hand it marked the 70th year from the establishment of the Konigsberg region as a part of the RSFSR (7 April 1946 the Presidium of the USSR Supreme Council had issued a special Decree); on the other hand it was the 70th anniversary of the Kaliningrad region (4 July 1946 the Konigsberg region was renamed the Kaliningrad region and the city Konigsberg was renamed Kaliningrad by the Decree of Presidium of the USSR Supreme Council). The author analyzes the historical and legal aspects of the Kaliningrad region development, its constitutional legal status, and the future upgrading of the regional public authorities. He also proposes some measures designed to improve living standards in the region.

Key words: Kaliningrad region, Konigsberg region, Kaliningrad, Konigsberg, Russian Federation, Russian federalism, Federation subjects, special economic zone

CIVIL LAW AND PROCEDURE

Pereplesnina E. M. (Petrozavodsk, The Supreme Court of the Republic of Karelia, e-mail: pereplesnina@mail.ru) On the accordance of p. 3 Art. 333 of the Russian Civil Code with the Russian Constitution (from the enforcer’s standpoint)

The author substantiates her position on the issue of distributing litigation expenses in civil trials objecting to judge’s own opinion on the RF Constitutional Court resolution on the investigation of the constitutionality of p. 3 Art. 333 of the Russian Civil Code.

Key words: litigation expenses, judge’s own opinion, law-enforcement, Constitutional Court of the Russian Federation

Shaina M. A. (Tomsk, Tomsk State University, e-mail mshaina@yandex.ru) Restorative obligations in the Russian civil law: the concept, origin grounds, and content

The author examines the issues of restitution and restorative obligations by taking into account the amendments to Section III «General part of obligation law» of the Russian Civil Code. There is an analysis of the concepts of restitution and restorative obligations that, as it is mentioned, shouldn’t be enshrined in law. In the author’s opinion, restorative relations seem to be the relative legal nexus.

Key words: restitution, restorative obligation, restorative effects

Kotlyarova V. V. (Samara, Samara State Aerospace University, e-mail: vera-er@mail.ru) The formation of the interim measures institution in the Russian procedural law

This article is devoted to the formation and development of the interim measures institution in the Russian civil procedure at various historical stages.

Key words: history of state and law, interim measures, securing of a suit, civil procedure, arbitration procedure

LABOUR AND SOCIAL LAW

Golovina S. Yu. (Yekaterinburg, Urals State Law University, e-mail: tp@usla.ru), Lyutov N. L. (Moscow, Kutafin Moscow State Law University, e-mail: nlioutov@mail.ru) Labour disputes in the EAEU member states: definitions and classifications

The foundation of the Eurasian Economic Union (EAEU) has resulted in the free movement of workforce within the territory of its five member states (Armenia, Belarus, Kazakhstan, Kyrgyzstan, and Russia). The workers’ migration among the EAEU territory is expected to enhance the need for coherent working conditions in all five states. Therefore, the issue of labour law harmonization becomes relevant for them. One of the major labour law institutions dealing with the rights and interests of both employers and employees is the resolution of labour disputes. Thus, the basic elements of this institution, including definitions and classifications of disputes in the EAEU member states, are examined. The authors conclude that legal regulation of labour disputes in all member states is based on more or less similar legal models rooted in the Soviet legal concepts. So, harmonization of labour law in the EAEU member states is likely to go on wheels.

Key words: labour law, regional integration, harmonization of labour law, labour migration, collective labour disputes, individual labour disputes

Lenshin A. A. (Moscow, Kutafin Moscow State Law University, e-mail: artemle@yahoo.com) The realization of freedom of association and the right to collective bargaining in the EAEU member states

Basing on the comparative-legal analysis of the EAEU states labour legislation existed before and after the adoption of the ILO decent work concept, as well as the examination of documents on cooperation between the EAEU states and the ILO, the author concludes that this concept has had a significant impact on legal regulation of freedom of association and the right to collective bargaining. Also, he examines several viewpoints of researchers from the EAEU member states and argues that it is necessary to improve the EAEU states labour legislation and to bring it in accordance with the international labour standards. It is stated that the principle of freedom of association and the right to collective bargaining seem to be essential components of the sustainable economic states development and the Eurasian integration processes.

Key words: decent work, freedom of association, collective bargaining, EAEU, ILO

Shaikhatdinov V. Sh. (Yekaterinburg, Urals State Law University, e-mail: spgms@mail.ru) On some legal issues of social protection of public and municipal employees

Today the challenges of social protection of public and municipal employees aren’t truly addressed at the federal, entity, and municipal levels. Those challenges have all worsened in respect of the demanding economic and financial situation in Russia. At the federal level there are a few legal acts on social protection of single persons (members of the Federation Council, deputies if the State Duma, federal ministers, etc.), however, at the level of RF constituent entities such acts are adopted independently and differ significantly from each other. In each municipal entity there are its own acts. Moreover, the legal status of public and municipal employees also remains largely unregulated. Therefore, the author proposes to develop and adopt a federal law on the legal status of public and municipal employees as well as a federal law on social protection of such persons.

Key words: public employees, municipal employees, social protection

Fedorova M. Yu. (Perm, Perm State National Research University, e-mail: fmulawkc@mail.ru) The constitutional correction of a social risk management legal mechanism (on the example of the RF Constitutional Court resolution of 14 January 2016 № 1-П)

The author investigates a social risk management legal mechanism under which a social security system is organized and operates. She points out the complex nature of this mechanism and claims that there may appear a number of faults. She also gives the definition of constitutionally significant faults of the social risk management legal mechanism. These faults include ones which cause violations and limitations of a constitutional right to social security (due to a failure to provide protection from social risks and their consequences). The author examines the constitutional correction of the social risk management legal mechanism that may be carried out by the RF Constitutional Court and constitutional (charter) courts of the RF constituent entities in the context of pension security of military and internal affairs servants and for a length of service. She comes to a conclusion that the social risk management legal mechanism needs further improvement.

Key words: social risk management legal mechanism, constitutionally significant faults, constitutional correction, Constitutional Court of the Russian Federation, military service, internal affairs service, long service pension

Kurchenko O. S. (Omsk, Dostoevsky Omsk State University, e-mail: olegpost2001@mail.ru) Abuse of social security rights: a problem statement

According to the analysis of legislation and law enforcement practice the author proves the possibility of abuse of social security rights and points out the need for enshrining the limits of social security rights in law. He claims that it is pointless to decouple abuse of social security rights and other forms of dishonest behaviour of a person who receives different kinds of social security benefits. The author emphasizes that in the social security law there are no legal rules governing the consequences of qualification of an act as abuse of rights. Therefore, he provides an assessment of the application of Art. 10 of the Russian Civil Code to social security relationships, and underlines the importance of preventing abuse of rights at the stage of law-making.

Key words: abuse of rights, social security law, social security rights, limits of rights, refusal to right protection

ECONOMICS AND LAW

Mikheeva I. V. (Nizhny Novgorod, National Research University Higher School of Economics, e-mail: irinarap@mail.ru), Loginova A. S. (Nizhny Novgorod, National Research University Higher School of Economics, e-mail: pantera-cut84@mail.ru) WTO accession of China and the reforming of its economic legislation

The authors consider the Chinese legislation development which has been influenced by the World Trade Organization requirements. There were four stages of preparation of the People’s Republic of China for WTO accession (1982–2001) within which the Chinese legal system was significantly changing. The authors enumerate and systemize the sources of Chinese law forming the core of the PRC economic legislation at a stage of preparation for acceding to the WTO. They argue that the experience of China may be useful for the inclusion of Russia into the international trading community.

Key words: China, national legislation, WTO accession, market economy, foreign trade activity

Kononenko D. F. (Odessa, Ukraine, National University «Odessa Law Academy», е-mail: dfkononenko@ukr.net) The impact of economic sanctions on the performance of foreign trade agreements

It is noted that economic sanctions may cause different legal and substantive consequences for the performance of foreign trade agreements. The inability to perform an agreement entails its suspension or termination, and, as a result of it, the contracting parties experience various negative property difficulties, i. e. damages and losses under the agreement, as well as liability for its non-performance. The author concludes that the adoption of the UN Security Council resolution can be qualified as a force majeure circumstance which provides a basis for exemption from liability for the non-performance of the international trade agreement.

Key words: sanctions, foreign trade agreement, UN Security Council resolutions, agreement performance, liability, force majeure

PROCURACY SUPERVISION

Ergashev E. R. (Yekaterinburg, Ural State Law University, e-mail: ergahsever@mail.ru) On the current issues of legal regulation and implementation of acts of prosecutorial response in the Russian Federation and the Republic of Kazakhstan

Despite the fact that the prosecutors’ legal powers have been recently cut back in the Russian Federation and the Republic of Kazakhstan, prosecutors was vested with some additional law enforcement measures, namely new acts of prosecutorial response. The author examines the varieties of these acts, points out their similarities and differences in two mentioned states, and pays special attention to some topical problems of their legal regulation and implementation.

Key words: prosecutor’s office, acts of response, protest, application, warning, resolution, explanation, sanction, operational activities

LEGAL ASPECTS OF ECOLOGY

Kruglov V. V. (Yekaterinburg, Urals State Law University, e-mail: ecoland@usla.ru) On the organizational and legal environmental support in economic activities

The author touches upon the organization and administration of environmental activities in industrial enterprises. He also examines the purposes, rights, and obligations of production and functional units of industrial enterprises.

Key words: environmental protection, organizational and legal environmental support, environmental agency of an enterprise

PAGES OF HISTORY

Kodan S. V. (Yekaterinburg, Urals State Law University, e-mail: tgp@usla.ru) Jurists’ scientific works in a system of sources of history of state and law studies

The author determines the place and the role of jurists’ scientific works in a system of sources of history of state and law studies. He points out the status of jurisprudential works as a subject of source studies, considers them as historical and historiographical facts, and underlines the specific of their use in historical and legal research activities.

Key word: history of state and law, history of legal science, legal source study, sources of history of state and law studies, legal ideology, Soviet jurisprudence

MUSEUM OF HISTORY OF SLI - USLA – USLU

Zipunnikova N. N. (Yekaterinburg, Urals State Law University, e-mail: igp@usla.ru) On the 80th anniversary of the State and Law History Chair of the SLI – USLA – USLU: the pioneering days. Part. 2. Teachers

STUDENTS’ BULLETIN

Ivanov D. A. (Moscow, Lomonosov Moscow State University, e-mail: ivanov-daniil.msu@mail.ru) Notary verification of company resolutions: the urgent problems and the initial findings of judicial practice

The article deals with a number of issues concerning the application of rules devoted to notary verification of general shareholder meeting resolutions in Russia. Most of them are still urgent. The author proves that there is no need for notary verification in some cases not regulated by law, by taking into account the aims of mentioned amendments and the first findings of administrative and judicial practice. He also analyzes the consequences of violation of compulsory notary verification form.

Key words: notary, notary act, stock company, limited liability company, general shareholders meeting, resolutions of meetings