Annotations № 3 (132) / 2020

THEORY OF STATE AND LAW

Ponomarev D. (Yekaterinburg) Law and rationality: at the origin of legal thought

In European culture, the law is one of its constitutive elements conveying the underlying idea of rationality. The logic, which transfers the rationality into legal practices, was developed by Greek philosophy in order to face judicial and political sophistry as a socially destructive intellectual technology. Further reception of Greek logical heritage identified the essential features of European law and legal science.

Key words: rationality, sophistry, Aristotle’s logic, philosophy, legal thought, European legal science

Popondopulo V. (St. Petersburg) The concept of law: a critical overview of the basic concepts

The article discusses the basic classical and post-classical concepts of law. The author, through the critical analysis, shows the pros and cons of these concepts and presents his own approach to the definition of law. The basic provision of law understanding is that law is a consequence of individual human activities and a means of social communication, like language and other iconic systems. This understanding of law dates back to ancient times and boils down to the interpretation of a man as a person capable of understanding and interaction. Recognition of a person, his rights and freedoms as the supreme value places a person and his relationship with others, rather than a legislative or another norm, at the heart of the legal reality. The claim of a person to a certain life benefit and the recognition of this claim as legitimate by others, i. e. not infringing on the interests of others and society as a whole (only the latter case develops a need for the norm as an official criterion for legality), is central to the formation of law. Recognition of the claim as legitimate is a basic element, a principle of law understanding.

Key words: understanding, classical concepts of law, post-classical concepts of law, anthropological understanding of law

INTERNATIONAL LAW

Likhachev M. (Yekaterinburg) International and domestic law: what’s the last but not the least?

The author invokes the issue of international and domestic law correlation in the context of the Russian constitutional reform of 2020. The question of superiority is to be solved from two autonomous perspectives – internal or international law. Each solution found proves to be reasonable and worthy. In any event, the State may not feel free to determine international law place within domestic legal order since it should regard international legal and constitutional constraints.

Key words: international and domestic law interaction, Constitution of the Russian Federation, pacta sunt servanda, international law precedence, human rights protection

Obgol’ts I. (Moscow) European arrest warrant and extradition: similarities and specific features

European arrest warrant (EAW) is a result of the development of extradition in the European Union. However, in the literature, legal acts, and court practice, there is still no common opinion on whether EAW is a separate legal notion or a form of extradition. The article carries out the comparative analysis of EAW and extradition from the perspective of the substance of these notions.

Key words: European arrest warrant, extradition, principle of mutual recognition, European Union law

COMPARATIVE JURISPRUDENCE

Kokotova M. (Yekaterinburg) The methods of selecting the most relevant members of social chambers (councils) in Russian and economic, social and environmental councils in France

The article considers the legal regulation of the formation by local authorities of local consultative bodies – social chambers (councils) in Russian and economic, social and environmental councils in France. The author identifies the methods of selecting the most relevant members of these bodies: granting the right to form the consultative body to officials / authorities that will collaborate with this body; granting the right to nominate candidates to local organizations; testing of candidates; adopting requirements for candidates to ensure the selection of the most prudent ones; adopting requirements for candidates to ensure the selection of the most motivated ones. The author compares the requirements for candidates for consultative bodies. She concludes that, in France, the legal regulation of the consultative bodies formation is more centralised than in Russia.

Key words: local self-government, municipal consultative bodies, social chambers, economic, social and environmental councils

Sarychev D. (Voronezh) The Supreme Court of the Republic of Croatia: the organization, jurisdiction, application of international and EU law

The article deals with the legal status of the Supreme Court of the Republic of Croatia. The legislation, on the basis of which the Supreme Court functions, is studied. Its jurisdiction is investigated. The article describes the practice of using legal principles by the Court when it issues decisions. It also shows the peculiarities of the application of international law norms and ECHR judgments by the Court.

Key words: European Union, Republic of Croatia, Constitution of the Republic of Croatia, Supreme Court of the Republic of Croatia, Act on the courts

CONSTITUTIONAL LAW AND PROCEDURE

Fomicheva О. (Orsk) Features of participation of a subject of legislative initiative in law-making

The article examines the question on the need to ensure the interaction of law-making participants in the implementation of the right to initiate legislation. The author mentions that the legislative initiative goes through a number of phases, and at each of them, there are different participants. The subject of legislative initiative himself is a participant both of the legislative initiative stage and of the stage of consideration of the bill by parliament. The participants who represent interests of the subject of legislative initiative at different law-making stages are not similar in most cases. The author proposes to state in law foundations of the interaction of all participants who facilitate the work of the subject of legislative initiative.

Key words: law-making, legislative initiative, bill, Government of the Russian Federation

CRIMINAL LAW AND PROCEDURE

Smagin S. (Tyumen) Specific characteristics of the personality of subjects committing extremist crimes

The article considers one of the most important elements of the forensic characteristics of extremist crimes – the personality of a criminal. Based on the analysis of investigative practice in criminal cases under consideration, the author identifies specific psychological and other characteristics of persons committing these crimes that are significant for crime detection and investigation.

Key words: extremism, forensic characterization of the personality of a criminal, extremist’s personality, preliminary investigation

Stelmakh V. (Yekaterinburg) Problems of legal regulation of investigative jurisdiction. Resolution of disputes on investigative jurisdiction

The article analyses types of investigative jurisdiction of criminal cases. It is stated that the rules of substantive investigative jurisdiction, which define the preliminary inquisition body obliged to carry out an initial inquiry or preliminary investigation, should be extended not only to the initiation of criminal proceedings but also to the materials of verification of crime reports. The need to extend the rules of alternative investigative jurisdiction not only to substantive but also to territorial jurisdiction is argued. It is proposed to expand the list of crimes subject to the rules of investigative jurisdiction of related cases (in particular, through the legalization of property extracted by criminal means). A concept of «dispute on investigative jurisdiction» is defined, and a procedure for resolving such disputes is proposed. It is stated that, in some cases, disputes on investigative jurisdiction can be resolved not only by the prosecutor but also by the head of the investigative body within the limits of his procedural and organizational powers. The decision of the prosecutor and the head of the investigative body to hand over a criminal case in accordance with its investigative jurisdiction may be appealed to the higher prosecutor or to the head of the higher investigative body.

Key words: criminal proceedings, preliminary inquisition, investigative jurisdiction, dispute on investigative jurisdiction, head of the investigative body, prosecutor, head of the inquiry body

CIVIL LAW AND PROCEDURE

Torkin D. (Tyumen) Theories of contract damages in the countries of the Anglo-American legal system

The article deals with two theories of remedy of damages for breach of contract that have been elaborated in the Anglo-American legal system and become increasingly widespread around the world. The creditor expectations theory is based on the need to satisfy the creditor's expectation interest by recovering losses, as a result of which he is put in the economic position no worse than that which he would have occupied had the contract been performed. An alternative to the theory of expectation is the reliance theory based on the harm principle in law and the notion that the plaintiff is entitled to protect his negative interest The author describes features of interaction between the expectation and reliance theories and also analyzes priorities when using loss identification techniques.

Key words: contract, damages, expectation interest, reliance interest, restitution

Idrisov H. (Grozny) Electronic form of a contract: doctrine and legal regulation

The article deals with the conclusion of contracts in electronic form. Today, the development of information technologies, primarily the Internet, has a certain impact on legal institutions, including institutions of contract law. One of the manifestations of this impact is the ability to transact in electronic form. Such a form of fixing contractual relations has been recently recognised in the Russian civil turnover. At the same time, there is still no consistent legal consolidation of an electronic form of contracts. The Civil Code of the Russian Federation mentions only oral and written forms of transactions. However, in judicial practice, documents (including contracts) concluded in electronic form are considered as a source of evidence in disputed cases. It is quite justifiable that such legal conflicts have a negative impact on law enforcement practice. The author puts forward a number of recommendations concerning the consolidation of the electronic form of contracts in the Civil Code of the Russian Federation.

Key words: contract, electronic contract, electronic form, Internet, remote trade

ADMINISTRATIVE LAW AND PROCEDURE

Stakhov A. (Moscow) On the need to develop a theory of judicial protection of individuals and organizations in the administrative process

Theoretical approaches to understanding the judicial protection of individuals and organizations in the administrative process have been developed according to the principles and norms of the Constitution of the Russian Federation. The author comes to a conclusion that the object of this judicial protection is the rights, freedoms, and legitimate interests of individuals, the implementation of which is hindered by decisions and actions (inaction) of administrative and public bodies and officials. The author distinguishes the judicial administrative cases on the protection of individuals and organizations in the administrative process, which are divided into separate categories depending on the nature of the legal consequences of disputed decisions, actions (inaction) of administrative and public bodies and officials, as well as the nature of the dispute being resolved. The author puts forward specific measures to modernize the Administrative Code of the Russian Federation within the judicial reform and the reform of legislation on administrative offenses being conducted in Russia.

Key word: judicial reform, judicial protection, dispute, administrative process, administrative proceedings, judicial administrative case

Domchenko A. (Yekaterinburg) Public administration and strategic planning: on the issue of demarcation of public management mechanisms

The author suggests his own approach to the differentiation of strategic planning and public administration, based on a number of criteria important for public management. He also attempts to identify the essence, content, and nature of the integrated management impact of each of the considered activities (mechanisms) on various spheres of society and the state. The author concludes that strategic planning has a system-forming role for the current administrative law and order.

Key words: public administration, public management mechanism, strategic planning, administrative policy, public administration

PROCURACY SUPERVISION

Kocheva D. (Moscow) Correlation of the prosecutor’s powers to detect violations of laws outside the criminal-law sphere and the powers of regulatory bodies

The article examines the correlation (the legal nature, the relationship) of the prosecutor’s powers to detect violations of laws outside the criminal-law sphere and the powers of officials of regulatory bodies to detect offenses. The author defines the notion of «prosecutor’s powers to detect violations of laws outside the criminal-law sphere»; interprets the aims of the implementation by regulatory bodies their powers to detect offenses; differentiates the powers mentioned above. She analyses legal acts regulating these legal relations, as well as changes in legislation concerning the procedure for conducting inspections of law enforcement by prosecutors; in particular, she indicates some similarities and differences in the legal regulation and implementation of the prosecutors’ powers and the powers of regulatory bodies.

Key words: Prosecutor’s office, supervision of compliance with the law, powers of regulatory bodies, state control (supervision), municipal control

LABOUR AND SOCIAL LAW

Kharitonov M. (St. Petersburg) The concept of a vacancy in case of termination of the employment contract

The Labour Code of the Russian Federation provides for the employer’s obligation to offer available vacancies before making a decision on termination of the employment contract on certain grounds. However, the meaning of the term «vacancy» is not defined by the law. In the legal literature and law enforcement practice, the vacancy is defined as a position (work) provided for by the staffing schedule of the organization, which is free, i. e. not occupied by any employee of the organization. At the same time, this definition leads to contradictions and problems in the current system of legal regulation. The article proposes a new definition of a vacancy in case of termination of the employment contract: it is a need manifested by the employer to conclude an employment contract for a certain employment function. The author shows why this definition is more correct and convenient than the existing one.

Key words: vacancy, vacant seat, protection against unemployment, termination of the employment contract

ECONOMICS AND LAW

Artamonova I. (Hamburg, Germany) Investment protection guarantees in the Free Trade Agreement between the Eurasian Economic Union and Vietnam and in the Comprehensive Economic and Trade Agreement between the European Union and Canada

The article contains a comparative analysis of the main investment protection guarantees provided for in the Free Trade Agreement between the Eurasian Economic Union and Vietnam and in the Comprehensive Economic and Trade Agreement between the European Union and Canada (CETA). The analysis of the above agreements is of interest as they have been drafted approximately within the same period and, consequently, they reflect some contemporary trends characterizing the investment protection. Moreover, one of the parties to these agreements is a supranational organization; thus, they are also somewhat similar. The article covers such investment protection guarantees as non-discrimination, fair and equitable treatment of investments, their full protection and security, as well as protection from expropriation or measures having an equivalent effect. The author analyses the relevant provisions in both agreements and presents certain views elaborated by the international investment tribunals and the doctrine in connection with the given standards. The conclusion is made that both agreements to a certain extent establish the main guarantees which protect foreign investors from arbitrary and illegal actions of host states. However, certain standards are elaborated in more detail in CETA.

Key words: Comprehensive Economic and Trade Agreement between the European Union and Canada, Free Trade Agreement between the Eurasian Economic Union and Vietnam, national treatment, most-favoured-nation treatment, fair and equitable treatment, indirect expropriation

Konstandina E. (Moscow) Invalid tax benefit: the current tendencies of proving

The article deals with changes in the approach to proving the validity of taxpayers’ tax benefit. The author analyses the experience of proving in this category of cases both within the Resolution of the Plenum of the Supreme Commercial Court of the Russian Federation № 53 and the article 54.1 of the Russian Tax Code. The author touches upon the application of main types of evidence in tax disputes and reveals the evidence on which tax authorities base their position today.

Key words: evidence, documents, article 54.1 of the Russian Tax Code, tax benefit, tax dispute, tax authority, taxpayer

LEGAL HERITAGE

D. A. Kerimov on the relationship between philosophy and philosophy of law (the material is presented by S. Kodan)