Annotations № 3 (138) / 2021


Sheptalin A. (Izhevsk) Issues of legal understanding in the works of the Marxism founders

The article summarizes the author’s analysis of the views of Karl Marx and Friedrich Engels on the issues of law understanding, legal genesis, the foundations and structure of law, as well as the relationship of state, law and morality in historical dynamics. The relevance of the topic is due to the growing debate on the law definition at the present stage and to the need to correct existing ideas about the so-called «Marxist» («class», «materialistic») concepts of law understanding and the origin of the state and law. On the basis of the wide involvement of primary sources, the scattered characteristics of law given by Marx are synthesized, and the contours of the dialectical Marxist understanding of law are outlined. According to the author, Marx considers law as a regulator of socioeconomic relations, which smooths the contradictions between individuals, who are a priori doomed to inequality due to production, distribution and consumption. The authentic Marx’s law understanding, underestimated by modern legal science, significantly differs from the «Marxist-Leninist» one; it stands on centrist positions and has common ground with natural-legal, sociological and materialist concepts. It should take its special place in the system of theories of law understanding and the origin of law since it has sufficient potential to become a theoretical basis for the development of an integrative definition of law.

Key words: Marxist understanding of law, Marxist concept of the state and law, authentic Marxism, integrative concept of law understanding

♦ Life in science and science in life (interview with V. Syrykh)


Ispolinov A. (Moscow) The principles of autonomy and priority of EU law as a weapon of the European Court of Justice in the conflict with investment arbitration. Part 2. Following the Achmea case

The article considers the events occurred after the decision of the CJEU in the Achmea case, namely the termination by the EU Member States of bilateral investment agreements concluded in the 1990s. The article also describes further steps taken by the CJEU in clarifying its position and arguments towards application of the principles of autonomy and priority of the EU law while deciding issues of validity of the rules of international investment law in the legal order of the European Union. The author sheds some light on the perspective application of Achmea reasoning to the arbitration tribunals established under the ICSID convention as well as under the Energy Charter Treaty and a place of these international treaties in the EU legal order. The Opinion of the CJEU No. 1/17 has been scrutinized at length including criteria spelt out by the CJEU on the issue of compliance of outside EU mechanisms of settlement of international disputes with the principle of autonomy of the EU legal order which obtained constitutional character. It is argued that giving a green light to the new mechanism of solving investment disputes envisaged by the CETA agreement, the CJEU made it clear that it will tolerate it, provided that such disputes will be settled by the permanent and independent judicial body which jurisdiction will be limited by issues of interpretation and application of the relevant international agreement without any possibility to rule on the validity of the rules of EU law.

Key words: Court of Justice of the European Union, Achmea judgment, Opinion No. 1/17, principle of autonomy, Energy Charter Treaty, investment arbitration


Ramankulov K. (Bishkek, Kyrgyz Republic) Termination of an employment contract by an employer in Russia, Kazakhstan and Kyrgyzstan and international labour standards

The article examines the grounds for termination of an employment contract on the initiative of the employer, provided for by the labour codes of Russia, Kazakhstan and Kyrgyzstan, taking into account their compliance with international labour standards. The author evaluates the legitimacy of the application of such a ground for termination of an employment contract with an employee as a violation of labour protection requirements entailed serious consequences, including injuries and accidents, in Kyrgyzstan. The indicated ground for termination of a contract necessitates the use of invalid Soviet or current Russian technical regulations. This circumstance does not fully comply with the ILO Convention No. 187 ratified by Kyrgyzstan. The author points out that the application of the grounds for dismissal due to participation in illegal strikes in accordance with the labour codes of Russia, Kazakhstan and Kyrgyzstan seems problematic because the legislator of these states has not given a definition of the right to strike yet. The legislator may accept the interpretation of the right to strike proposed by the ILO or work out its own detailed interpretation of this right in the context of international legal norms.

Key words: employment contract, grounds for dismissal, international labour standards

Golovina S. (Yekaterinburg) A work for hire as a result of labour activity of an employee: legislative experience of Russia and Kazakhstan

Based on a comparative analysis of Russian and Kazakhstan legislation, the article presents a brief overview of the civil law category «work for hire» in the light of its connection to labour relations. The author notes a narrow understanding, developed in civil law science, of the main feature of a work for hire – the presence of an employment contract. The author emphasizes that, in accordance with the labour law norms, the existence of labour relations may be indicated by both the actual admission to work in the absence of an employment contract and the civil law contract. The author concludes that the legal category «labour function» should be used instead of the category «labour duties» to characterise the work for hire. It is specified that the range of functional duties of an employee is established not only by an employment contract or job description but also by qualification manuals and professional standards. It is noted that remuneration for the work for hire is staged: an employee is paid a salary on a predetermined amount for its creation during the performance of the labour function, and then an employee receives a fee (over wages) for the use of the work for hire; the amount of the latter may be stipulated in an employment contract or a civil law contract.

Key words: work for hire, service task, employee, labour function, remuneration for the work for hire


Matveev I. (Novosibirsk) The correlation between a corruption crime and a corruption-related crime

The article deals with the concept of «corruption crime» and the main approaches to its understanding. Attention is focused on the features of a corruption crime that are of significant interest. It is concluded that the misuse of official status is a constructive feature and aggravating factor for many crimes. The author raises a question about the correlation between the concept of «corruption crime» and the concept of «corruption-related crime», which are found both in legislative acts, official interpretations of legal norms and departmental acts. He asserts that the first term is more appropriate than the second one. The role of the conflict of interest in corruption crimes is outlined. The author considers the misuse of official status as a key feature of a corruption crime. He proposes the classification of corruption crimes, based on the prevailing motive of criminal behaviour.

Key words: corruption crime, corruption-related crime, classification, motive, greed, other personal interest


Romanov G. (Yekaterinburg) The criteria of copyrightability of works in copyright law

On the basis of a comparative analysis of several jurisdictions, the author explores the concept of work and the characteristics that the work must have in order to be the copyright-protected object. The author draws a distinction between different national approaches to determining the criterion of originality and highlights the object-oriented and subject-oriented standards of copyrightability. The author makes a conclusion that the difference between creative and functional acts of choices made by the creator is a central component of the criterion of originality.

Key words: work, copyrightability, originality

Bakumenko V. (Moscow) Hybrid jurisdiction agreements: the legal nature, mechanism of action and risks associated

The article provides an analysis of the features of hybrid jurisdiction agreements in international civil procedure. The legal nature, role, distinctive features, mechanism and classification of such agreements are outlined. The article also covers the main differences between hybrid jurisdiction agreements and classic arbitration and prorogation agreements, taking into account various options for the distribution of the rights of the parties under such agreements and the risks of their invalidation. The author assesses the hybrid jurisdiction agreements in the context of an economic analysis of law and calls them a way to minimize material and procedural risks of creditors associated with the behaviour of bad-faith debtors. Some presumptions for potential trends in the regulation of hybrid jurisdiction agreements at both local and international levels are presented.

Key words: international civil procedure, international commercial arbitration, jurisdiction agreements, hybrid clauses

Kazakov A. (Perm) The review of a judgment under newly discovered circumstances in the execution of a court order not to initiate a criminal case

Based on the analysis of the legislation and the current judicial practice of commercial courts and general jurisdiction courts, the author explains that the review of a judgment under newly discovered circumstances in the presence of circumstances specified in the law (i. e. evidence tampering, false expert statement, false eyewitness testimony, or deliberately false translation, entailing the performance of an illegal or unfounded judicial act in the case, criminal acts of a person participating in the case, or his representative, or criminal acts of a judge committed during the case proceedings), that were substantiated in compliance with the court verdict or the order of a procurator, investigator or interrogator not to initiate a criminal case or to terminate a criminal case, is allowed by the court in exceptional cases for reasons other than exoneration. The review of a judgment under newly discovered circumstances is not carried out in case of the criminal case termination for exonerating reasons. To eliminate the existing lack of legal clarity, the author proposes to make appropriate changes to the clarifications of the highest judicial bodies on issues of judicial practice.

Key words: review of a judgment under newly discovered circumstances, newly discovered circumstances, order not to initiate a criminal case, refusal to initiate a criminal case


Stakhov A. (Moscow) Key elements of the structure of administrative control and supervisory proceedings in Russia

The article identifies and describes key elements of the structure of administrative control and supervisory proceedings in Russia carried out by executive authorities together with local self-government bodies. Among them, there are such special categories as «mandatory requirements», «state control (supervision)», «municipal control», «violation of mandatory requirements», special categories that reveal the general understanding, essence, material and procedural content of administrative control and supervisory proceedings, as well as administrative procedures of resolving administrative disputes arising in the course of control and supervisory proceedings, and special rules for distinguishing between control and supervisory proceedings and proceedings on administrative offenses. These legal categories make it possible to assess the regulatory impact of the norms of the federal laws «On State Control (Supervision) and Municipal Control in the Russian Federation», «On Mandatory Requirements in the Russian Federation» and to reveal their advantages and disadvantages, as well as the prospects for their implementation. Besides that, the place of control and supervisory proceedings in the structure of domestic administrative process is determined.

Key words: mandatory requirements, state control, state supervision, public administration, control (supervisory) bodies, control (supervisory) measures, violation of mandatory requirements, administrative control and supervisory proceedings


Mamatkazin I. (Perm) Juridical structures of pension legal relationships: actual problems

The author considers a juridical structure as a system. In turn, the system implies a certain composition and requires the presence of all its elements. The absence of any fact in the juridical structure makes it incomplete and does not generate legal consequences. At the same time, the author draws attention to the fact that the absence of not all juridical facts that are important for a pension legal relationship destroys the juridical structure. In some cases, the presence or absence of a juridical fact simply increases or decreases the legal powers of the subject. On the basis of this, the author concludes that not all juridical facts relevant to the setting of a pension are included in the legal structure. But the existence of juridical facts outside the juridical structure must be accompanied by the emergence of pension rights other than the rights generated by the juridical structure. These pension rights are specified as additional pension rights in relation to the main right – the right to a pension. Also, the author substantiates the possibility of the emergence of a subjective right to an insurance pension before the emergence of a pension legal relationship. This affects the function of the pension legal relationship, which is associated with the implementation of pension rights.

Key words: function of a pension legal relationship, juridical structure, juridical fact, subjective right to a pension

Usacheva E. (Voronezh) Reproductive choice in natural and assisted reproduction

The aim of the article is to determine the limits of making a reproductive choice when using paired natural and assisted reproduction. The author proposes her own definitions of the terms «right to reproductive choice» and «reproductive choice when using assisted reproduction technologies (ART)». The problem of harmonising the reproductive choice of partners in paired reproduction is outlined. Based on the analysis of the differences between natural reproduction and reproduction with the use of ART, the author assumes that the legislator ought to provide opportunities for the progressive realisation of reproductive choice when using ART. It is established that the moment of reproductive choice is the moment of giving consent to the corresponding actions committed by a specialized medical organisation (preferably to each action if they are separated from each other in time). At the same time, a person participating in reproduction has an opportunity to change his / her choice until the moment of embryo implantation; after implantation, this opportunity is limited by the woman’s right to artificial termination of pregnancy, as well as to reduction of the embryo(s) / fetus(es) in case of multiple pregnancies. Based on the analysis of world and domestic law enforcement practice, the author outlines three basic rules for resolving disputes over the coordination and change of reproductive choice in the paired use of ART: a priority of the agreed will over the changed one; a priority of the right to refuse reproduction; a presumption of the lack of consent. Ways of changing these rules are proposed, taking into account the need to achieve a morally and socially significant goal of protecting the embryo.

Key words: reproductive rights, reproductive choice, assisted reproductive technologies, embryo, right to health care, right to privacy


Knutov A., Chaplinskiy A. (Moscow) To the issue of the quality of «regulatory guillotine» (on the example of license requirements)

The article is devoted to the results of the implementation of the «regulatory guillotine» in Russia in 2020 when the government abolished about 11.6 thousand normative legal acts and documents, which were passed in modern Russia and the USSR. The article analyses the goals of the «regulatory guillotine» and the capabilities to achieve them. One of the tasks of the reform was to eliminate mandatory requirements that do not reduce the risk of causing harm. This task of the reform gave reason to believe that, as a result of it, there should be fewer requirements. However, what are the real results of the reform? The analysis of qualitative results of the «regulatory guillotine» is carried out, based on the updated licensing regulation to the certain types of activities in terms of changing licensing requirements. The authors analyse 52 licensing acts in areas to which the Federal Law of May 4, 2011 No. 99-FZ «On Licensing of Certain Types of Activities» is applied. Such an assessment of the «guillotine» makes it possible to conclude that only 1/4 of the licensing acts have become softer for entrepreneurs as a result of the «regulatory guillotine». In some cases, the «regulatory guillotine» even had a negative effect: 13 % of all licensing acts became more complicated for entrepreneurs.

Key words: «regulatory guillotine», regulatory requirements, license requirements, licensing, deregulation, state control


Sobornov P. (Nizhny Novgorod) Issues of legal understanding in Soviet legal science in the 1920s

The author examines the patterns of development of understanding of law in Soviet legal thought in the 1920s – during the period of the new economic policy, when the formation and strengthening of the world’s first socialist state and its legal system were underway. It is noted that discussions in Soviet legal science ended in the mid-1920s with the approval of the political and legal views of P. I. Stuchka as official and dominant.

Key words: psychological theory of law, class theory of law, revolutionary legality, revolutionary expediency


G. V. Mikhailovsky on philosophy and general theory of law as backbone disciplines in legal science and education (a brief introduction by S. Kodan)


Anikina M. (Yekaterinburg) Problems arising during the consideration of a civil claim in a criminal case

Today, a civil claim in a criminal procedure is one of the most effective ways to compensate for harm. That is why victims and other persons who have the right to file such a claim often state their claims. Meanwhile, a civil claim is not an independent institution of criminal procedure law. A lot of issues related to the consideration of this claim have not been resolved by the legislator. The Plenum of the Supreme Court of the Russian Federation also did not touch on all the problems associated with the civil claim in its ruling no. 23 of 13 October 2020. The article examines the promising points of the ruling of the Plenum of the Supreme Court of the Russian Federation and the points requiring clarification. The article emphasizes the importance of compensation for harm even in the absence of actus reus in the person’s actions, but within the civil proceedings. Among other things, the article discusses the issues of granting the procedural status of a civil claimant to public law entities and determining the procedural status of those persons, whose participation in the consideration of a civil claim is mandatory. The author pays special attention to the problem of resolving regressive claims within criminal proceedings and to the efficiency of the arrest of the accused’s possessions in order to secure a civil claim.

Key words: criminal procedure, civil claim, civil claimant, compensation for harm