Annotations № 4 (151) / 2023
INTERNATIONAL LAW
Tolstykh V. (Moscow) Buddhism and international law
The interest in international legal aspects of Buddhism is relatively recent. At the beginning of the 21st century, this topic has acquired the character of an independent scientific direction: a circle of authors, who are exploring the field, has been formed, polemics on certain issues have emerged, publications have become regular. The emerging interest in Buddhist law is, in fact, an attempt to discover those ideas that would help overcome the crisis of modern international law. The author systematizes the statements on international relations contained in Buddhist sources and correlates them with the modern theory of international law. The texts that are the subject of analysis can be categorized into several groups. The first group includes suttas, i. e. statements of the Buddha and his disciples recorded in the Canon. The second group includes jatakas, i. e. parables about previous incarnations of the Buddha. The third group includes historical documents: in particular edicts of the Indian king Ashoka (3rd century B.C.) and the poem «Mahavamsa» (Sri Lanka, 5–6th centuries). The fourth group includes doctrinal sources (commentaries, articles, etc.). The first part of the research is devoted to the main political concepts of Buddhism (law of Dharma, theory of social contract, principle of merits, etc.), as well as approaches to dispute resolution and use of force. The author also analyses some concepts, designed to provide a compromise between imperative nature of the ahimsa (prohibition of taking life) and political needs of Buddhist states. Several suttas and jatakas are commented on.
Key words: Buddhism, history and philosophy of international law, statehood, resolution of international disputes, use of force, international humanitarian law
Lunev A. (Yekaterinburg) Fundamental rights of corporations in the international human rights system
The subject of this study is the position of legal entities (corporations) in the international human rights system and corporate rights in human rights treaties. The procedural status of organizations as applicants and as potential victims of rights violations in European, Inter-American and Universal human rights bodies is briefly described. In all these mechanisms, the status of legal entities (corporations) is determined differently and, accordingly, they do not always have locus standi and cannot always defend their rights. The article analyses the provisions of the European Convention on Human Rights as the main document, which states a wide range of guarantees for corporations. The nature of the rights of legal entities (corporations), their value and connection with human rights are described. The author notes that legal entities (corporations) have fundamental rights derived from human rights. At the same time, the fundamental rights of legal entities (corporations) not only provide protection to organisations as such, but also serve to guarantee the realisation of individual human interests and public interests as a whole.
Key words: rights of legal entities (corporations), human rights, fundamental rights, European Convention on Human Rights, universal and regional human rights mechanisms
COMPARATIVE JURISPRUDENCE
Kozhevnikov O., Kuznetsova S. (Yekaterinburg) The principle of federalism in migration policy of Russia and foreign countries: a comparative legal research
The article examines the features of delineation of competence in the sphere of migration relations regulation between public authorities in the Russian Federation, the United States of America and the Federal Republic of Germany. It is noted that, in these federations, there is a tendency towards centralised implementation of migration policy, while the role of federation entities and municipalities is to ensure the effective integration of migrants. The analysis of the peculiarities of the USA migration policy allows the authors to conclude that the migration management model in this country does not correspond to the classical dual federalism: states have a very limited participation in migration issues. Germany’s migration policy has clearly expressed features of cooperative federalism: state authorities of federal lands carry out their own legal regulation of integration processes and also widely participate in decision-making concerning the status of migrants. In Russia, there is no legal certainty regarding the powers of state authorities of the constituent entities of the federation and local governments in the migration sphere, which leads to low participation of the latter in the management of migration processes.
Key words: migration, integration, federalism, distribution of competence, public authorities
CRIMINAL LAW AND PROCEDURE
Korsakov K., Tsvetkova A. (Yekaterinburg) External labour migrants in Russia: typology and criminological characteristics
External labour migration, despite its positive economic and demographic consequences, entails social risks associated with criminal acts committed by and against migrants. In the criminological analysis of any crime, the key place is given to the characterisation of the personality of the perpetrator and their victim, to the establishment of factors due to which some people become criminals and others become victims. The article considers the typology of external labour migrants and gives their criminological characteristics, on the basis of which it is supposed to carry out differentiated social and legal regulation of relations with the participation of these persons. A list of measures to be implemented in relation to each type of external labour migrants is proposed in order to increase the effectiveness of their adaptation and integration, as well as to minimise the level of victimhood and criminal risks in their environment.
Key words: external labour migration, personality of a perpetrator, victims of crimes, causes of external migration, social adaptation of migrants, criminological characteristics
Smakhtin E. (Yekaterinburg) Justice of criminal proceedings: form and content
An integrated approach to the study of the procedural form and forensic content of the category of justice in criminal proceedings led the author to study law enforcement practice. This study showed that the concept of justice has deeper social roots and does not always «fit» into the existing ideology of criminal proceedings. It is argued that a fair sentence is associated with the need for a more in-depth study of its content from the standpoint of morality. This approach meets the social expectations of society and is aimed at unconditional observance and protection of human and civil rights and freedoms.
Key words: justice, competitiveness, criminal procedure, forensics
CIVIL LAW AND PROCEDURE
Shestakova E. (Moscow) Problems of establishing a personal (testamentary) fund in a joint will of spouses
The article analyses the provisions of the legislation governing relations arising in connection with the establishment of a personal (testamentary) fund in a joint will of the spouses, taking into account the special subject composition on the side of the testator. Much attention is paid to the relationship between the provisions of family and civil law, in which gaps and contradictions have been found. Some recommendations for eliminating them are made.
Key words: personal fund, testamentary fund, spouses, joint will of spouses, inheritance
Tetyuev S. (Chelyabinsk) Participation of a teacher in civil proceedings in Russia and other CIS countries
The article examines the provisions of the civil procedural legislation of the CIS countries concerning the participation of a teacher (pedagogical worker, psychologist) in the interrogation of minor witnesses. The purpose of the study is to identify similarities and differences in the regulation of the use of pedagogical and psychological knowledge in the interrogation of minor witnesses in civil proceedings, as well as to formulate proposals aimed at improving domestic civil procedural legislation. The author comes to the following conclusions: the regulation of the teacher’s participation in the interrogation of a minor witness in the civil procedural codes of the CIS countries generally coincides; the Russian legislator should provide for the participation of a psychologist (as an alternative to a pedagogical worker) in the interrogation of a minor witness, as it is done in Armenia and Kyrgyzstan, and also raise the age of a minor whose interrogation as a witness can or should be conducted with a teacher (following the example of Tajikistan and Kyrgyzstan); the right of a teacher to express his / her opinion on the identity of a witness and the content of his / her testimony, as provided for by the legislation of most CIS countries, is not conditioned by the tasks of the interrogation and can be realized only at the end of the interrogation.
Key words: civil proceedings, teacher, teaching staff, psychologist, minor witness, interrogation
ADMINISTRATIVE LAW AND PROCEDURE
Domchenko A. (Yekaterinburg) Methodological problems of the theory of administrative act
The article identifies some methodological problems of the theory of administrative act, primarily related to the subject, method and conceptual apparatus of the science of administrative law. It is pointed out the unsatisfactory methodological equipment of the majority of studies devoted to the administrative act, which directly affects their quality. A number of provisions that can be taken into account in the development of the theory of administrative act are proposed.
Key words: administrative law, administrative act, theory, subject and method of the science of administrative law, conceptual apparatus
Kuryndin P. (St. Petersburg) Impartiality: from the principle of administrative proceedings to the general principle of administrative law
The author reveals the concept of the principle of impartiality and notes that its application is possible not only in legal proceedings. Real mechanisms for ensuring impartiality in the activities of administrative bodies are provided only by the federal laws «On enforcement proceedings» and «On combating corruption». The content of the principle of impartiality is revealed in judicial practice, where partiality or bias are often associated not only with material gain, but also with non-material interest in the performance of official duties. The author, referring to the judgments of the European Court of Human Rights, points out the subjective and objective aspects of impartiality and suggests that they can be applied in Russian administrative legislation. In addition, the subjective aspect of impartiality can be ensured by the adoption and active application of ethical codes of conduct.
Key words: general principles of administrative law, impartiality, right to good governance, administrative procedure, conflict of interest
LABOUR AND SOCIAL LAW
Fedorova M. (Yekaterinburg) Temporal norms in the Russian pension legislation
The article analyses the traditional approach to temporal norms as rules of conduct that determine the procedure for entry into force and termination of legal norms, as well as the choice of norms to be applied. The author argues the thesis about the need to single out, along with general temporal norms regulating the operation of legal norms in time, also special temporal norms aimed at establishing temporal indicators of social relations. The branch specificity of temporal norms of social security law is substantiated. This specificity is predetermined by the essence of social risk and its temporal characteristics, which stipulate the need for temporal adequacy of protection against such risk. Temporal features of social risks compensated by means of pension provision are indicated. Examples of temporal norms of pension legislation, which allow taking into account the duration of the period of formation and implementation of pension rights, are given. Such norms regulate the procedure for calculating various types of length of work (service), for determining the individual pension coefficient for the purpose of calculating insurance pensions, procedural deadlines, etc. The conclusion is made about the diversity of temporal norms in the Russian pension legislation and their important role in the legal mechanism of pension provision.
Key words: temporal norm, operation of the law in time, pension legislation, pension, length of work (service), term
Istomina Ye. (Yekaterinburg) Social security law: answers to the challenges of time
Challenges of time are circumstances that destroy the previous order of things and require an active response from individuals, communities and the state. Law cannot remain aloof from these processes. The challenges of time, to which social security law should respond, are proposed to be divided into external, structural and internal. External challenges are caused by complex changes taking place in the world – the spread of a new coronavirus infection, a special military operation, etc. The article emphasises the need for comprehensive protection of persons affected by social risks caused by extraordinary factors. Structural challenges of time are caused, in particular, by active processes of digitalisation, which have not bypassed the social security system. At the same time, the author doubts the possibility of claim-free social security as a general rule. Internal challenges of time are related to changes in approaches to the formation of protection against social risks. There is an objective need for more active participation of citizens in overcoming social risks. The example of the long-term savings program shows the prospects for interaction between social security law and other branches of law in this area. It is concluded that social security law itself is a response to the challenges of time since it is designed to guarantee protection from social risks to the most vulnerable segments of the population.
Key words: social risk protection, social security law, challenges of time, digitalisation, long-term savings program
ECONOMICS AND LAW
Rybakova S. (Moscow) On the use of the concept of «fund» in the conceptual apparatus of financial law
The article identifies and discusses a group of issues related to the subject of financial law. First of all, the concept of «fund» is analysed. In particular, the author refers to an example related to target allocations from gambling aimed at financing activities for the development of professional and youth sports, as well as to social relations in which the formation, distribution and use of funds are carried out outside the traditional mechanism, mediating the corresponding social relations. The significant role of the category of interest in general and public interest in particular is positioned, allowing for a constructive dialogue about the expanding boundaries of the subject of financial law. It is noted that the impetus for modifying public financial relations is given by the new edition of the text of the Constitution of the Russian Federation, which defines the values and guidelines for the development of the modern Russian state.
Key words: financial law, public finance, fund, target allocations, subject of financial law
Zhabreev M. (Yekaterinburg) Doctrine of economic and legal regulation of economic relations: history and prospects of use
The reason for the emergence of administrative legal regulation of economic relations in the Russian Empire was the military needs of the state as a participant in the First World War. In the post-revolutionary period of formation of Soviet law, priority was also given to administrative legal regulation of economic relations, while civil legal regulation played a supporting role. During the period of the New Economic Policy, the country had a two-sectoral system of legal regulation of economic relations: civil law for private entrepreneurs and administrative law for the state-owned part of the country’s economy. After the end of the period of the New Economic Policy, the application of civil law was significantly limited, and priority in the regulation of economic relations was given to economic law based on state planning of production and distribution, standardised pricing, standard forms of contracts and the obligation to conclude them with certain counterparties. Due to changes in the political and economic system of Russia in the 1990s, economic relations began to be regulated primarily by civil law, and economic law was «transformed» into business law. Today, taking into account the significant needs of the state for military and dual-use products, the economic legal doctrine is becoming relevant. Creation of the mobilization and closed part of the state economy requires special economic and legal regulation, which is based on medium- and long-term planning, state regulation of pricing and the obligation to conclude contracts on time and with certain counterparties.
Key words: economic law, doctrine of economic and legal regulation of economic relations, civil law, business law
LEGAL ASPECTS OF ECOLOGY
Berzin O., Shliagina E., Ignatyeva A. (Nizhny Novgorod) Improvement of legal support for licensing of waste disposal activities of business entities
The article proves the relevance of the development of legal support of the waste disposal industry in Russia. The hierarchy of sources of legal regulation in the field of licensing of waste disposal activities is determined. The main requirements established by environmental legislation for the license applicant are disclosed. The authors describe the current practice of licensing of waste disposal activities. They reveal the shortcomings of legal regulation, including the absence of an official interpretation of the terms «new equipment», «new technology» and the establishment of additional requirements for the license applicant, based on the internal conviction of the control and supervisory authorities. The problems of proving compliance (non-compliance) of the equipment (technology) declared by the license applicant with the criteria of novelty are considered. In order to eliminate the identified legislative gap, it is proposed to amend the Federal Law «On Environmental Expertise» and the Federal Law «On Technical Regulation», which will allow the license applicants to prove the absence of novelty in case the information about the declared equipment (technology) is contained in the information and technical reference books of the best available technologies and GOSTs.
Key words: recycling, licensing, waste disposal, government regulation, environmental protection
MUSEUM OF SLI – USLA – USLU HISTORY
Zipunnikova N., Kalinina A. (Yekaterinburg) Visual sources in studying legal education and science: features and prospects (in connection with the publication of the book about the history of the first recruitment of the Faculty of Legal Service in the National Economy of the Sverdlovsk Law Institute)
The article focuses on the problems of «visual turn» in socio-humanitarian knowledge and visual interdisciplinary research. The variety of visual sources, the peculiarities of working with them and the need for their more active inclusion in legal, historical-legal research are shown by the example of studying the history of legal education and science. Special attention is paid to photography as a kind of visual. The appearance of an interesting edition devoted to the first recruitment of the Faculty of Legal Service in the National Economy of the Sverdlovsk Law Institute is characterized as a significant reason to think about the independence of visual sources in historical and legal knowledge. The authors conclude that studying visual sources is important for the preservation of historical, legal and university memory and it is essential to increment the visual culture of researchers and promote visual issues in historical and legal cognition.
Key words: visual sources, legal education and science, Sverdlovsk Law Institute, Ural State Law University named after V. F. Yakovlev, visual research, visual culture, photography, memory preservation