Annotations № 1 (136) / 2021

THEORY OF LAW AND STATE

Ponomarev D. (Yekaterinburg) Competition of a Greek logos and a Roman ratio: a codification idea in Roman jurisprudence

The article considers the specificity of the perception of a codification idea in Roman jurisprudence. The author argues that the essence of an idea about the codex as a pre-ordered set of separated elements governed by a presupposed logic of structure and functioning, ascends back to Greek dialectics, the perception of which Roman culture had faced in its historical development. Roman legal thought had to formulate a «respond» to the Greek influence in the sphere of law. The author demonstrates that the codification idea was rejected by Roman lawyers and that Roman jurisprudence mostly saved its logical-thought identity. According to the author, such attitude was determined by the «genetic» specificity of Roman legal thought.

Key words: Roman law, Roman jurisprudence, codification, dialectics, logic, analysis, synthesis, legal thinking

Belykh V., Puchkov V. (Yekaterinburg) A good name concept under Russian law and legal doctrine: the sociocultural genesis

The article examines the sociocultural genesis of a good name concept in Russian law and legal doctrine from the standpoint of the history and methodology of legal science. The article analyses the legal models of a good name prevailing in the pre-revolutionary and Soviet legislation. The authors claim that the good name concept was formed as an integral legal structure not earlier than the middle of the 19th century. It is concluded that a good name was initially an object of criminal legal protection and received a civil legal regime only when compensation for non-material (non-property, moral) harm had been legally regulated.

Key words: good name, honour, dignity, business reputation, defamation, legal science, history

Napalkova I. (Rostov-on-Don) National legal systems: the concept and classification

The article examines the approaches of Russian and foreign scientists to the definition and classification of national legal systems. The system-forming qualities of legal systems help to identify various criteria for their typification. The author substantiates that the Russian legal system could be defined as a unique, independent type of legal systems formed in accordance with the cultural, historical, moral, and religious values of Russian society, which distinguish it from other legal systems of the modern world.

Key words: legal system, legal family, typification criteria, legal awareness, legal culture

PUBLIC ISSUES AND POLITICAL SCIENCE

Skuratov Yu. (Moscow) Eurasian constitutionalism: a definition and content

The article is devoted to the study of the constitutional and legal component of the heritage of the classical Eurasian scientific school. A systematic generalization of views, reflections, assessments of representatives of classical Eurasianism on the role and significance of the constitution in a state governed by the rule of law gave grounds for the conclusion about the formation of Eurasian constitutionalism as an integral, original political and legal doctrine. Eurasian constitutionalism undoubtedly borrowed the ideas of other types of constitutional state (Western democratic and Soviet), but on the whole became a new, original system of views. Thus, the author writes about the third direction of the historical path of Russia (non-capitalist and non-socialist). Eurasian constitutionalism is a historically self-valuable form of constitutional doctrine, ideology and political movement, based on the original understanding of the Eurasian world as an independent civilization, the ideal organisational and legal embodiment of which is the state of truth based on the principles of ideocracy.

Key words: Eurasian constitutionalism, constitutional state, de facto constitution, guarantee state, Eurasianism, ideocracy, people’s sovereignty, democracy

Viflyantsev A. (Moscow) The institution of challenging normative legal acts in civil procedure

The author analyses two theoretical approaches to understanding the institution of challenging normative legal acts: as a special procedure to protect public interests and as a way to restore civil rights. The obtained theoretical conclusions are applied in the analysis of legislative regulation of the procedure for challenging normative legal acts in the Code of Administrative Procedure of the Russian Federation. Proposals for the development of legislation and judicial practice in the cases on challenging normative legal acts are formulated.

Key words: challenging normative legal acts, public interest, public interest advocacy, protection of civil rights

INTERNATIONAL LAW

Tolstykh V. (Moscow) International legal qualification of the conflict in Nagorno-Karabakh

The article highlights the history of Armenia and Nagorno-Karabakh, the conflict between Armenia and Azerbaijan, its geographical and geopolitical dimension, as well as relevant strategic interests of Russia, Turkey, China and other states. In the author’s opinion, Russia’s policy in the region presumes an objective to maintain the existing balance and prevent the excessive strengthening of either side. The author analyses the second Karabakh war and its results in the context of five legal regimes: the right of nations to self-determination, the de facto statehood, the law of international treaties, the use of force and the regime of combating the coronavirus pandemic. Azerbaijan’s position looks more advantageous when it concerns the first three regimes; as to the regime of combating the pandemic, it looks like a losing one; as to the legality of the use of force, the chances of the parties are approximately equal. Material qualifications do not prejudge material consequences: even if Armenia proves Azerbaijan’s violation of the prohibition on the use of force, such a form of responsibility as restitution will hardly be realized, being «materially impossible». In this regard, Armenia’s application to the ICJ or a request for an advisory opinion does not seem to be an effective instrument for protecting its interests; direct contacts between the parties and the efforts of mediators look more promising. There are four options for resolving the conflict: 1) the integration of Nagorno-Karabakh into Azerbaijan on the basis of renewed autonomy; 2) the elimination of autonomy and the gradual assimilation of the Armenian minority; 3) the preservation of the status quo; 4) the secession of Nagorno-Karabakh. The second option seems more likely; however, the international community should discuss the possibility of implementing the fourth. The assimilation of the Nagorno-Karabakh Armenians, which Azerbaijan can undertake, is legal: international law does not solve the problem of national unification and does not even fix it; rather, on the contrary, the entire logic of the modern order (nature of the state, foundations of legitimacy, a principle of democracy, etc.) is set to produce this problem and, along with it, conflicts, wars, forced migrations, etc. Therefore, the solution is extremely urgent and at the same time extremely difficult; it involves criticizing the existing order and the ideas underlying it and revising, at least selectively, the traditional concepts of sovereignty, self-determination, jurisdiction and territorial titles.

Key words: international law, international politics, international conflict, peaceful settlement, territorial title, right to self-determination, secession, use of force, international treaty, anti-pandemic regime, uti possidetis, Nagorno-Karabakh

Smbatyan A. (Moscow) International health regulations: evolution and a current state

Today diseases have turned into a threat to national security. The coronavirus pandemic is just one such global challenge. International health regulations (IHR) have not become a barrier to the spread of the disease. One of the reasons is that the basis of the current international health regulations is the rules elaborated back in 1851. Weak national outbreak surveillance systems, internal barriers and reluctance to notify such outbreaks because of fear to decrease trade or tourist flows, the lack of proper enforcement and control mechanisms by the WHO – all of these have led to the failure of the IHR. Another reason is the activity of the WHO itself. The adequacy and timeliness of the actions it took during the COVID-19 outbreak raise doubts. In order to be prepared for global challenges like COVID-19, we need an international public health system built on fundamentally different ideas, approaches and principles, which have yet to be developed.

Key words: World Health Organization, international health regulations, COVID-19, trade, quarantine, communicable diseases, public health

Smetanin N. (Yekaterinburg) On the volitional character of unilateral acts of states

Unilateral acts, mainly in the form of statements, become a modern form of interaction between states, and their volitional character is mentioned in doctrinal studies. The volitional character means that the behaviour of the state when committing a unilateral act is aimed at achieving certain legal consequences and is conditioned by the consent of the state, which is the author of the act, to endure them. The author notes that, in international law, the concept of «will» («intention») is used in positivist approaches to substantiate the normativity of international legal rules, as well as – in a broader sense – to assess whether the state is bound by a specific obligation under international law. Such a perception of will is criticized by non-positivists; however, nowadays, in international legal doctrine, there are no convincing alternatives for assessing the validity of unilateral acts of states. The author considers the practice of international courts and tribunals and, based on the results of the study, comes to the following conclusions: 1) international courts confirm the obligatory character of a specific unilateral act, guided by the consent of the state to be legally bound by such an act; 2) courts establish the volitional nature of unilateral acts through various indirect means, usually through their content and context. The author comes to the conclusion that the essence of unilateral acts of states is determined, among other things, by their volitional character. In international law, the concept of will is a legal fiction since it refers to an individual but not a collective subject. At the same time, the use of the concept of will reveals a focus of the state’s activities on achieving certain legal results and, accordingly, to qualify such behaviour as legal.

Key words: unilateral act of state, will (intention) of state, international courts, content of an unilateral act, context of an unilateral act

COMPARATIVE JURISPRUDENCE

Semitko A. (Yekaterinburg) The public law and private law division in the French legal doctrine

The subject of a study is the French legal doctrine concerning the basic division of law. The definition of public and private law, the criteria for their allocation, as well as the dualism of the French judicial system are analysed. It is concluded that human rights are a common part that unites public and private law: the detraction of private law, as the experience of building communism in Russia has shown, inevitably leads to the destruction of human rights, and then to the transformation of public law into a pseudo-legal system. To prevent this, it is necessary to protect and develop private law in Russia in a harmonious combination with the development of public law, i. e., to protect the idea of the basic division of law, which is actively discussed in the French legal doctrine and implemented in the French legal order.

Key words: basic division of law, private law, public law, continental family of legal systems, human rights

CONSTITUTIONAL LAW AND PROCEDURE

Metlitskii R. (Tyumen) Development of the public control ideas in the Russian Constitution

The article analyses some rules of the Constitution of the Russian Federation (as amended on 1 July 2020) through the prism of the legislation on public control. The author considers some positions of legal scholars on the constitutional amendments and draws conclusions about the significance and prospects of public control development.

Key words: public control, constitutional amendments, Russia-wide voting, consideration of the opinion of citizens and civil society institutions

CRIMINAL LAW AND PROCEDURE

Nagornaya I. (Moscow) Criminal liability of medical workers for professional crimes: a new approach

An approach to prosecuting medical workers for professional crimes is predetermined by the peculiarities of medical activities. The latter is inevitably associated with the risk of bodily harm or death and is aimed at the most important benefits of the individual. It is substantiated that, in most cases, the criminal liability of medical workers should occur only for causing grievous bodily harm or death of a person. The list of other criminal law prohibitions should be strictly limited. It is argued that Art. 238 of the Criminal Code of the Russian Federation should not be applied to medical workers because this application is selective and depends on the discretion of a law enforcer. Article 235 of the Criminal Code of the Russian Federation should be amended or cancelled since it does not distinguish dubious methods from generally recognized medical procedures and equates unqualified persons to persons who have received a medical degree but do not have a license for medical activities. An initiative to amend the rules of the Criminal Code of the Russian Federation providing for liability of medical workers for professional crimes is considered. It is argued that such an initiative is not able to solve the existing problems of criminal law assessment of medical workers’ deeds.

Key words: medical worker, negligence, grievous bodily harm, infliction of death, professional crimes

CIVIL LAW AND PROCEDURE

Konovalov A. (Bryansk) Forced employment as a measure of forcing the debtor to fulfil his alimony obligation

In Russia, there is a constant increase in alimony debt, which leads to the conclusion that the current means of forcing the debtor to fulfil his alimony obligation are insufficient and it is necessary to find new ways to solve this problem. In this regard, the author wonders whether it is possible to apply to persons, who have alimony debts, such a measure as forced employment.

Key words: alimony, forced labour, forcing to fulfil obligations

LABOUR AND SOCIAL LAW

Sitnikov A. (Saint Petersburg) The employer’s refusal to exercise the work management powers in the acts of social partnership: a constitutional analysis

The second part of Article 9 of the Labour Code of the Russian Federation prohibits including in collective labour agreements norms restricting the scope of rights or reducing the level of guarantees of employees; therefore, it indirectly allows including norms, which improve the legal status of employees, in the acts of social partnership. It is possible to improve the legal status of employees by granting them additional rights and guarantees or by limiting the employer’s powers to manage the work of employees. In this regard, the author wonders whether the employer has a legal possibility to refuse to exercise his powers stipulated by law, which make up the employer’s right to manage the work of employees, and what are the consequences of such a refusal. By analysing the constitutional basis of the employer’s right to manage the work and the goals of social partnership, it is concluded that such a refusal is inadmissible: if at least one power to manage the work is abandoned the optimal management of the work of employees will be impossible and, thus, the employer will fail to exercise appropriately the activities useful to the community.

Key words: social partnership, work management, refusal to exercise powers, constitutional guarantees

ECONOMICS AND LAW

Kasatkin S. (Nizhny Novgorod) The subject of initial coins offering (ICO) legal regulation

The article discusses factors that determine the subject of legal regulation of initial coins offering (ICO). Based on the analysis of the legislation of foreign countries, the author makes a conclusion about the variety of approaches to the definition of the subject of ICOs legal regulation. In some states, traditional legal institutions (including rules on securities turnover) are used, in others – the special legislation is adopted. In any case, the supranational and cross-border nature of ICOs stipulates the essential features of the application of legal norms to relations in the field of digital asset turnover. The author assumes that the optimal subject of ICOs legal regulation should include the procedure for voluntary state registration of ICOs involving verification of the White Paper by an authorized state body, as well as determination of the legal status of cryptocurrency exchanges.

Key words: initial coins offering, token, smart contract, blockchain, subject of legal regulation

Kruglov V. (Yekaterinburg), Basharin A. (Saint Petersburg) On the effect of public-law limitations on property rights in the field of protection of cultural heritage in the implementation of development projects

The article researches the problem of the influence of public-law limitations on property rights (in particular, the protection zones of cultural heritage) on the possibility of implementing development projects. The authors claim that the absence of relevant restrictions in the cartographic materials of urban planning documentation and the Unified State Register of Real Estate does not allow to make an unambiguous conclusion about their «valid existence». In addition, the authors attempt to qualify the postponement of the entry of information about public restrictions in the Unified State Register of Real Estate as an «omission» of public authorities, the consequences of which should not be imposed on private individuals. The article also points out the need to improve the current regulation in terms of providing guarantees of legal certainty in relation to the activities of persons implementing development projects.

Key words: building permit, land plot development plan, protection zones of cultural heritage, zones with special conditions for the use of territories, town-planning regulations, legal certainty, good faith of public authorities

Cherednikov A. (Samara), Nikishin V. (Saint Petersburg) Definition of the legal regime of real estate in Russian legislation

The authors describe the foundations and priorities of legal regulation of the use of land and other real estate, determined by the current legislation. The relationship between the statutory category of «legal regime of land» and the category of «legal regime of real estate» used in practice is considered. The complexity of legal regulation of the mode of use and operation of real estate created as a result of construction (buildings, constructions, objects of incomplete construction) is emphasized. The rights and obligations of owners of land plots, land users, landowners, and tenants of land plots provided for by land legislation are distinguished in conjunction with the similar rights that the legislation on urban planning confers on holders of rights to capital construction objects in terms of their operation. On the basis of a comprehensive analysis of the provisions of land legislation, legislation on urban planning and civil legislation, as well as the practice of their application, the content of the legal regime of real estate is determined.

Key words: legal regime, permitted use, land use and development rules, urban planning zoning, urban planning regulations

PAGES OF HISTORY

Tretyakova E. (Perm) Traditions and continuity in organizational and legal support of the Russian state foreign policy in the 19^th – early 20^th centuries

The article analyses the foreign policy of the Russian Empire and its legal and organisational components. The author identifies and characterizes the following organisational and legal traditions arising during the pre-revolutionary period: active participation of the Russian state in international relations on an equal footing with the European states; direct participation in the formation of international law; active development of the Eastern direction, interaction with underdeveloped states and, therefore, wide-range foreign activities; active participation in international associations and responsibility for maintaining peace and security; centralization and specialization of foreign policy management, as well as training and selection for service within the foreign policy department; formation of a traditional model of the Ministry of Foreign Affairs and international institutions of interstate communication; formation of a traditional system of international law sources and implementation of them; intersystem reception.

Key words: foreign policy of the Russian Empire, organisational and legal traditions, development of international law, international institutions of interstate communication

LEGAL HERITAGE

M. A. Reisner on the Marxist study of the history of political and legal doctrines (a brief introduction of S. Kodan)