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Nº 8 (2023)
Philosophy of law
The Philosophy of Law in Russia as the ideological and theoretical basis of the national legal ideology: history, modernity and prospects
Resumo
The article examines the Russian Philosophy of Law, reveals its theoretical and value potential to be the basis of the modern national legal ideology of Russia. The views of K.S.ºAksakov, N. Ya. Danilevsky, N.A. Berdyaev, I.A. Ilyin are analyzed, who, according to the author, managed to show the essence of the Russian national character and Russian statehood in their works. It is argued that the Russian Philosophy of Law, which reached its apogee in the XIX – first third of the XX century, is not only not outdated at the present time, but should become the basis of modern theoretical research in the field of national state-building, the formation of domestic and foreign policy of the Russian state. The system-forming nature of the Philosophy of Law for fundamental legal sciences is revealed.
Gosudarstvo i pravo. 2023;(8):7-23
7-23
Court, prosecutor’s office, bar, notarial system
Preconditions for the right to bring claim: state of the art
Resumo
The article is devoted to the study of the prerequisites of the right to sue in modern conditions. The foundations of the traditional doctrine of the prerequisites and conditions for applying to the court with a statement of claim were laid in the early Soviet period, including in the works of outstanding scientists of the Institute of State and Law of the Russian Academy of Sciences. Currently, procedural legislation in Russia is characterized by a pronounced differentiation of procedural forms of protection. If in the Soviet period all civil cases were considered and resolved by a court of general jurisdiction within the framework of a single civil procedure, today administrative and arbitration proceedings have received the status of an independent form of protection. Accordingly, there was a problem of criteria for distinguishing the entire array of civil cases not only within the judicial system, but also according to the applicable procedural forms of protection of violated rights, freedoms and legitimate interests. We are talking about the jurisdiction of civil cases – the basic prerequisite of the right to sue. Despite the refusal of the legislator to use this term, the main task of the holder of the violated right when applying for judicial protection is still to determine the competent judicial authority. In addition, his duty is also to determine the procedural legislation applicable in the case (this can be called the “applicability of the procedural form”). Another prerequisite for the right to initiate a civil case is the applicant’s compliance with the mandatory pre-trial (claim) procedure for dispute settlement in a number of civil cases. Based on the theoretical analysis of the categories “civil case”, “out-of-court dispute settlement”, research of the legal nature of Civil Law, conclusions and proposals for improving the current procedural legislation are formulated.
Gosudarstvo i pravo. 2023;(8):24-34
24-34
Foreclosure on the sole residential premises of an insolvent debtor: problems and prospects
Resumo
The article analyzes the grounds and procedure for foreclosing on the sole residential premises of an insolvent debtor when refusing executive immunity in the procedure for the sale of a citizen’s property. The conclusion about chicane as the basis for foreclosure is formulated. The procedure for the sale of a single home is investigated. The criteria for choosing replacement housing are indicated. Based on sociological research, an overview of current options for overcoming regulatory gaps on the issue under consideration is given.
Gosudarstvo i pravo. 2023;(8):35-44
35-44
Discussions and debates
The “forgotten” branch of the Russian legal system “The Law of armed conflicts” is being revived with the release of the fundamental scientific work of the three-volume monograph “Military Law” (Some comments in connection with the publication of the three-volume monograph “Military Law”)
Resumo
The article is a review of the three-volume scientific work “Military Law”, published in 2021 - 2022. The role and significance of the conducted research for the development of Military Law science are revealed, proposals for further promising research in the field of Military Law on topical issues of modern political and military history are formulated. The necessity of developing educational publications for military educational organizations on the basis of this monograph, the introduction of mandatory military legal training of military personnel into the system of military education is substantiated
Gosudarstvo i pravo. 2023;(8):45-50
45-50
On the Supreme Judicial Authority of the Russian Federation
Resumo
The article substantiates the need to create in the Russian Federation a fundamentally new constitutional state authority under the conditional name of the Supreme Judicial Authority of the Russian Federation, similar to the fact that the highest legislative authority is the bicameral Parliament, and the executive authority is the Government of the Russian Federation. It is noted that such bodies exist in about half of the countries of the world, and in Russia it could quite realistically appear twice – in 1993 and in 2001. The author substantiates the inability to assign the functions of this body to the Supreme Court of the Russian Federation and other state authorities and bodies of the judicial community. It is proposed to give the supreme judicial authority the authority to ensure the independence of courts and judges, material resources, financial, personnel and other support for the effective judicial activity of the judicial system. Why is it proposed to give this body the rights: a) legislative initiative; b) adoption of necessary regulatory and administrative legal acts that are mandatory for execution by a specific circle of performers. The contours of the formation of this organ are proposed. It is strictly noted that the Supreme Judicial Authority will in no way be a judicial body – of any jurisdiction and of any instance. It is emphasized that the implementation of these proposals will require the development and adoption of a new Constitution of the Russian Federation.
Gosudarstvo i pravo. 2023;(8):51-63
51-63
So what is the form of government in Russia? Part 1
Resumo
The article draws attention to the fact that in legal science there is no consensus on the answer to the question - to what kind should the domestic form of government be attributed. Analyzing the constitutional provisions, as well as exploring the features of the organization and activities of the highest state authorities, scientists come to various conclusions. The presence of modified signs of various types of forms of government in the domestic system of higher authorities and management is one of the reasons for the diversity of approaches to characterizing the form of government in the Russian Federation. On the one hand, such a symbiosis of ways of organization and interaction of the highest authorities and management allows us to speak about the synthesis of the model of the form of government of Russia, on the other hand, that the existing criteria (grounds) for the classification of forms of republican government need to be revised due to the fact that they do not meet the modern level of development (i.e. archaic) statehood and do not allow to properly identify the forms of government of states, including the Russian Federation.
Gosudarstvo i pravo. 2023;(8):64-73
64-73
Machine-reading and machine-execution law: essential, linguistic and mental aspects
Resumo
In the article machine readability and machine executability of law can be considered as an imperative of digital transformation in the legal field. In the field of machine reading and machine execution of law, there are many subjects for discussion that are within the limits of purely utilitarian issues related exclusively to the field of information technology and focusing on issues of information systems, programming languages, technologies and tools for machine reading and machine execution and etc., and those that reach the level of problems of a mental, ontological, semiotic, hermeneutic and other nature. The author indicated terms that are significant for the problem under study are indicated and their definitions are given. Some issues related to the essential, linguistic and mental aspects of ensuring machine-readable and machine-executable law are highlighted.
Gosudarstvo i pravo. 2023;(8):74-83
74-83
Rights and freedoms of a man and a citizen
Places of traditional residence and traditional economic activity of indigenous peoples of the North, Siberia and the Russian Far East: legal aspect
Resumo
The article deals with the legal issues of the places of traditional residence and traditional economic activity of the indigenous peoples of the North, Siberia and the Far East of the Russian Federation. Modern international legal standards of understanding of lands (territories) are shown indigenous peoples, approaches to their understanding in Russia in the past and at the present time. Based on the analysis of the current Russian legislation, the characteristics of these places (territories) and the forms of their concretization are given, proposals are formulated for additional regulation of relations in this area and a conclusion is made on the possible adoption of a special federal law on the territories of traditional residence and traditional economic activity of these peoples.
Gosudarstvo i pravo. 2023;(8):84-95
84-95
Strengthening of legality and struggle with criminality
Prospects for the development of Russia’s criminal law policy: the search for the real model
Resumo
The article describes the state of modern criminal law policy in Russia, substantiates the need to develop, adopt and consolidate in the relevant normative document the conceptual foundations of the policy of the Russian Federation in the field of combating crime, as well as the creation of the Doctrine of Criminal Law as a basis and guideline for legislative work, law enforcement practice, scientific research in the field of combating crime. and carrying out organizational and institutional changes, the goals, objectives and content of the Doctrine are disclosed.
Gosudarstvo i pravo. 2023;(8):96-105
96-105
Counteraction to illegal participation in voting: criminal and administrative responsibility
Resumo
The article presents an analysis of new forms of organization of voting, which act as an effective tool for preventing violations of electoral rights. The change in the list of voting forms has raised to a new level the legal significance of such necessary electoral actions as the issuance by a member of the election commission and the receipt by the voter of a ballot. The introduction of innovations required the legislator to establish additional measures of administrative and criminal liability. The new compositions are formulated based on the electoral status of the citizen who receives the ballot illegally; as a mandatory feature of the subjective side is the purpose of the crime and offense. Based on the analysis of the current legislation, the author makes proposals aimed at improving the practice of its application.
Gosudarstvo i pravo. 2023;(8):106-114
106-114
The model of criminal liability of legal entities for encroachments in the field of economic activity
Resumo
The article is devoted to the issue of criminal liability of legal entities for crimes in the sphere of economic activity in the Russian Federation. The author examines various theoretical approaches, foreign, proposes a model of such responsibility in Russia. In particular, it is noted that the responsibility of legal entities is a necessary attribute of countering offenses that infringe on economic relations. There are two possible options for resolving the issue of responsibility: a) establish responsibility directly in the criminal legislation; b) the establishment of similar liability in other branches of legislation. Accordingly, the issue of establishing criminal liability of legal entities for crimes in the field of economic activity is relevant.
Gosudarstvo i pravo. 2023;(8):115-123
115-123
Law and education
Improving the constitutional and legal policy of the Russian Federation in the field of regulating the educational activities of universities in the context of globalization and regionalization
Resumo
In the article discusses the features of the educational activities of higher educational institutions in Russia in the context of globalization and regionalization. The features of improving the constitutional and legal policy of the Russian Federation in the field of educational activities of universities at the present stage are analyzed. Relevance of the study is justified by the fact that the improving the constitutional and legal policy in this area is the key not only to economic stability, but will also contribute to the solution of political issues. The purpose of this study is to develop, based on an analysis of the provisions of the Constitution of the Russian Federation, universal and regional international agreements, legal acts, foreign experience, the works of legal scholars, economists and sociologists, proposals for improving the constitutional and legal policy in the field of educational activities of universities, taking into account modern tendencies of globalization, regionalization and the need to preserve and develop Russian culture and traditions. As a result of the study, the main trends in the field of higher education were identified, both at the global and regional levels. The experience of the People’s Republic of China on the development of higher education, corresponding to the trends of modern world and regional processes and the goal of preserving national traditions and culture, was analyzed, its features and positive features that could be borrowed by the Russian Federation were identified. Proposals were developed to improve Russian legislation and create strategic documents in this area. In particular, the goals and principles of the concept of the development of higher education in Russia were formulated. The main directions of development of the constitutional and legal policy of the Russian Federation in the field of educational activities of universities are identified: improving the quality of education, their competitiveness in foreign markets, the adequacy of education to modern socio-economic and cultural conditions.
Gosudarstvo i pravo. 2023;(8):124-132
124-132
Law and international relations
Interaction between judicial discretion and methods of interpretation in the case-law of courts of integration associations
Resumo
A key element of judicial activity appears to be judicial discretion, which is used to fill legal gaps in integration organisations. The exercise of judicial discretion leads to the formulation by an integration organization court of activist legal findings based on the interpretation of the applicable law and recourse to the generally recognised principles and regulations of international law. The Court reveals the “implied” rule of an integration legal order on the basis of the teleological method of interpretation which predefines the special charachteristics of the legal argumentation. The limits of judicial discretion are formed by the goals pursued by the integration legal order including the general thrust of the international agreements on achieving integration between states as well as protecting the fundamental rights and freedoms.
Gosudarstvo i pravo. 2023;(8):133-141
133-141
Abroad
IT as an instrument for democratization of parliamentary activities: Latin American practice
Resumo
Latin America has a favorable political and legal environment for the introduction of democratic innovations in the activities of public authorities. The use of information technology is seen as one of the key elements of democratization processes. Despite the relatively low level of Internet penetration and the crisis of confidence in political institutions the parliaments of these countries have been quite consistent in opening up access to their activities to citizens. The article analyzes the practices of the e-citizenship portal of the Brazilian Senate and the Peruvian Virtual Parliament, where for a long time on a systematic and regular basis citizens take part in the lawmaking process.
Gosudarstvo i pravo. 2023;(8):142-153
142-153
Features of the federal structure of the Australian Union (in the context of the principle of subsidiarity)
Resumo
The article devoted to the peculiarities of the federal structure of the Australian Union (in the context of the principle of subsidiarity) gives a general description of the Australian federal model, shows the public-legal basis for the delimitation of competence between the Union and the states, as well as the problems of implementing the principle of subsidiarity in the system of federal relations of Australia. The author makes a conclusion that the federal model of the Australian Union is characterized by pronounced tendencies of centralization. The principle of subsidiarity in the system of federal relations is deformed, since there are no guarantees of independence in the sphere of internal self-government of the states. To implement this principle, it is necessary to develop an adaptive system of criteria for distinguishing the powers and responsibilities of the Union and the States in relation to specific subjects of competence. This approach will allow for coordinated (coordinated) interaction within the scope of joint competence.
Gosudarstvo i pravo. 2023;(8):154-165
154-165
Pages of history
Criminal law enforcement of the state contract (According to the Code on Criminal and Correctional Punishments of 1845)
Resumo
The article is devoted to the history of the regulation of relations in the field, which is now called procurement for state and municipal needs, as well as the history of liability for various abuses in this area in domestic legislation. According to the Code of Criminal and Correctional Punishments of 1845, the author classifies and examines in detail the compositions providing for liability for both corrupt manifestations in procurement activities and for violation of procurement procedures. On the basis of the above, the author the conclusion is formulated on the development of lawmaking in the field of countering violations in procurement activities.
Gosudarstvo i pravo. 2023;(8):166-171
166-171
Scientific reports
Election of magistrates as a preventive measure their possible deviant behavior: critical analysis of the legal tradition
Resumo
The article examines the electability of justices of the peace, which is regarded as a cross-cutting value maxim of the justice of the peace since 1864 and is positioned as a basic component. Clarification of the degree of influence of the election of judges on the prevention of deviant behavior of individual holders of judicial power is carried out using the methodology of historical and legal analysis of the legal terms of the Judicial Statutes of the Russian Empire of November 20, 1864 and extrapolation of their results in the Russian Federation. The monoconceptual vision of elections as a procedure for granting judicial powers to candidates for justices of the peace of the XIX - early XX century is supplemented by the authors’ argument, according to which this procedure was in fact a five-stage technology for completing judicial posts by appointment. The decision on the personalities from the list of candidates compiled by the leader of the nobility and approved by the governor was taken by vote. But voting itself is not an election.
Gosudarstvo i pravo. 2023;(8):172-179
172-179
Informal employment in the Russian labor market: causes and legal responsibility
Resumo
The article examines the category of “informal employment” as one of the key problems of the modern labor market in Russia. Attention is focused on new types of employment, which are not always subject to legal regulation. The reasons for the increase in informal employment, which leads to negative economic consequences, the legal insecurity of citizens, are substantiated. The existing legal liability does not fully solve these problems. Other approaches are proposed to reduce informal employment in Russia.
Gosudarstvo i pravo. 2023;(8):180-185
180-185
Honor and dignity as objects of criminal law protection
Resumo
The article considers honor and dignity as objects of criminal and administrative offenses. The norms of criminal and administrative legislation providing for liability for attacks on the honor and dignity of the individual are analyzed. The issues of differentiation of the elements of crimes, offenses that have honor and dignity as the main and additional object are considered. Examining the gaps in the current legislation, the authors propose to provide for criminal liability for repeated commission of an administrative offense - insults in the Article 128.2 of the Criminal Code of the Russian Federation.
Gosudarstvo i pravo. 2023;(8):186-190
186-190
Scientific life
All-Russian Conference with international participation “History of political and legal doctrines as a scientific and educational discipline”
Resumo
Review of the All-Russian Conference with international participation “History of political and legal doctrines as a scientific and educational discipline”, held on April 20, 2023 at the Faculty of Law at Lomonosov Moscow State University, offers a wide range of positions on the history of political and legal doctrines. The participants, who are somehow connected with this discipline, express their opinion about its role and place in the modern educational process, its history and content, its significance for the training of lawyers, its general cultural function in the socialization of personality and the formation of an ideological position. The speakers agreed that the post-Soviet period is characterized by a steady decline in the share of theoretical and historical disciplines in our legal education. The general conclusion is made that a disdainful attitude to fundamental legal science, including the history of political and legal doctrines, is fraught with a decrease not only in the level of professional training of lawyers, but also their general cultural level.
Gosudarstvo i pravo. 2023;(8):191-206
191-206
Criticism and bibliography
Human rights, imperative norms and basic principles of International Law: notes of an international lawyer
Resumo
The institute of human rights is a key means of protecting individual rights. The list of human rights is very wide, but not complete. There is a lot of work to be done to approve this protection mechanism in the national and International Law of the XXI century.
Gosudarstvo i pravo. 2023;(8):207-212
207-212