Êîëîíêà ðåäàêòîðà
Reference:
Kurilov, V.I., Samusenko, T.M., Sonin, V.V., Prisekina, N.G., Falaleev, A.G. (2013). Law School
of the Far Eastern University:
history, experience,
plans for the innovative activities. LEX RUSSICA (Russian Law), 8, 807–807. https://en.nbpublish.com/library_read_article.php?id=62902
Abstract:
The article is devoted to the Far Eastern Federal University — its history, experience, and the further
plans for the innovative activities. The history of legal education in the Far East of Russia starts in 1899, when
the Oriental Institute (now the FEFU) was formed in Vladivostok. It was the first university to the east of Baikal.
Its curriculum included legal courses. After the Far Eastern State University was restored in 1956, the Ministry
of Higher Education of the USSR in September of 1958 had decided to include jurisprudence into the curriculum
and to open the major on «legal studies» as a part of a historical and philological faculty. In 1959 the historical
and legal faculty of the FESU was formed, and the department of legal studies was formed as well. This
department (and later the historical and legal faculty as a whole) was headed by the N.I. Ovchinnikov (PhD
in Law). The reform of the legal education in FESU in 1980 was a unique event within the Soviet era, and it as
based upon a constellation of bright lawyers and legal scholars. The scientific research within the law school
also entered a new era at about the same time. The scientific school of criminal law of the Law School of the
FESU was recognized both nationally and internationally. In July 1992 on the initiative of the rector of the FESU
an international scientific conference on comparative studies of the legal systems of Russia an the South Korea
was held in Vladivostok based on the Law School of the FESU. Soon after the FEFU was formed based on the
FESU in October, 2010, other higher education institutions were merged with it in 2011, and the academic
divisions of the University were restructure, the system of faculties and institutes was liquidated. Instead of
them 9 large «competence centers» were formed on the most globally competitive scientific and educational
spheres, and 9 schools were formed based on these centers. The Law Institute of the FEFU was reformed into
the Law School of the FEFU.
Keywords:
jurisprudence, legal education, legal school, Far East, lecturing lawyers, legal divisions, FESU, FEFU, faculty, reform, model of lawyer.
Âèçèòíàÿ êàðòî÷êà
Reference:
Korobeev, A.I. (2013). Dagel. LEX RUSSICA (Russian Law), 8, 808–819. https://en.nbpublish.com/library_read_article.php?id=62903
Abstract:
This article is devoted to the memory of the Doctor of Law, Merited Scientist of the RSFSR Plekhan
Sergeevich Dagel. It discusses the milestones of his scientific and pedagogical path, his most important scientific
work and their place in Soviet and modern Russian criminal law, forensic studies, criminology, criminal
penal an procedural law, as well as in the related spheres of philosophy, social studies, ethics, genetics, law
and medicine. The author gives recognition to his work and considerable input into the studies of topical issues
of Soviet criminal law and criminology, such as guilt, personality of a criminal, complex studies of victimology,
negligent crimes, criminal policy, ethnical, moral, philosophical, psychological, social and political problems
of legal theory and practice. His fundamental works, such as «Model of Lawyer», «Problems of guilt in Soviet
criminal law», «Teachings on criminal personality in the Soviet criminal law», «Negligence. Problems of criminal
law and criminology», «Problems of Soviet criminal policy». The author discuses both scientific research
and educational work of P.S. Dagel. In particular, P.S. Dagel developed a course of lectures on criminal law and
the Soviet criminal policy.
Keywords:
jurisprudence, criminal law, criminal policy, negligent crime, guilt, personality of a criminal, model of a lawyer, Soviet law, criminal responsibility, criminology, jurisprudence.
NAME IN SCIENCE
Reference:
Gaivoronskaya, Y.V. (2013). System of legal acts
of the Russian Federation. LEX RUSSICA (Russian Law), 8, 820–829. https://en.nbpublish.com/library_read_article.php?id=62904
Abstract:
The article gives grounds for the system of legal acts of the Russian Federation as a complex classification.
The author provides critical analysis of various classifications of legal acts due to their incomplete nature,
and she provides her own version for the systematization of legal acts. The key criterion for the classification
is the legal nature of an act. The author characterizes specific features of the legal nature of the legal acts of
various types. A large number of acts of ambiguous or mixed legal nature leads conflicts of laws and complicates
the practice of legal implementation. Many of these problems may only be resolved by legislative means.
The legislator should resolve two key problems: firstly, it is necessary to clarify the competence of certain
subjects to issue certain types of legal acts, as well as the requirements to the legal techniques for the various
types of legal documents; and, secondly, to introduce limitations to those subjects regarding issuing the acts
of ambiguous legal nature, for which it may be complicated to establish both their legal consequences and the
degree of their obligatory character.
Keywords:
jurisprudence, legal acts, interpretation acts, general acts, document, legal nature, acts of mixed nature, implementation of law, application of law, implementation of obligations, act.
THEORY OF LAW
Reference:
Shishkina, O.E. (2013). State and municipal government
in modern Russia: on the issue
on the differences between
the constitutional, legislative
and de facto model of relations. LEX RUSSICA (Russian Law), 8, 830–839. https://en.nbpublish.com/library_read_article.php?id=62905
Abstract:
The article concerns the growing tendency of the close ties between state and municipal power in
the modern Russia. While the constitutional model of relations between the state power bodies and the municipal
bodies does not allow recognizing the municipal bodies as a part of state administration, the Russian
legislation provides for great many opportunities for establishing subordination of municipal bodies to the
state bodies. The subordination relations between the state government and the municipal bodies are supported
by the existing territorial structure of the municipal self-government, and the principles of separation
of competences between the state and the municipal bodies, the lack of sufficient financial and economic basis
for the municipal bodies The differences between constitutional, legislative and de factor models of relations
between the state and municipal government became quite outstanding and obvious. And such a situation is
dangerous. Firstly, it leads to violations of the provisions of the Constitution of the Russian Federation. Secondly,
subordinate relations between the state and municipal bodies lead to the municipal dependency by the
«poor» municipal formations, or to the municipal separatism of the power in comparatively «rich» municipal
formations. Subordinate relations should be gradually replaced by the cooperation, coordination and interaction
via the efforts of both regional and local elites. However, these forms of interaction are hard to introduce
into the government relations in Russia.
Keywords:
jurisprudence, municipal government, state government, interaction, subordination, municipal formation, coordination, local budget, municipal property, competence.
Ïðîáëåìû òåîðèè îòðàñëåé ïðàâà
Reference:
Khabibulina, O.V. (2013). Legal regime of state service. LEX RUSSICA (Russian Law), 8, 840–846. https://en.nbpublish.com/library_read_article.php?id=62906
Abstract:
The article is devoted to the institution of state service in the Russian Federation from the standpoint
of legal regime The legal regime of the state service is an ideal model of functioning and development of the
social relations in the sphere of state service, which is established by norms, and guaranteed by a combination
of legal, organizational, material and technical means, providing for the possible and necessary behavior of
the subjects and directing regulation thereof. Specific features of the legal regime of state service include dualistic
material — procedural, complex, regulatory — protective character. The legal regime of state service can be characterized and distinguished by the following qualities: strictness of requirements to the state servants;
detailed regulation of their behavior, specific obligations, limitations, prohibitions for the state servants; special
control over the activities of the state servants (even after they have resigned from their positions); provision
for the specific bases and order of application of state coercion in case of violations of the established
rules. The above-mentioned legal means show administrative legal (public) nature of legal regime of the state
service. The structure of the legal regime of the state service includes the following elements: goals and aims
of the regime; object bearer or the regime; regime legal means; regime rules, system of guarantees. Legal
principles are not included into the structure of legal regime, rather they are placed above this regime, and at
the same time they for the basis for the legal regime.
Keywords:
jurisprudence, state service, legal regime, politics, state servant, obligations, limitations, prohibitions, control, responsibility, system of guarantees.
Ïðîáëåìû òåîðèè îòðàñëåé ïðàâà
Reference:
Rabets, A.P. (2013). Compensation
for the violation
of an exclusive right. LEX RUSSICA (Russian Law), 8, 847–856. https://en.nbpublish.com/library_read_article.php?id=62907
Abstract:
The article is devoted to the issues regarding legal nature, conditions for application and procedure
for establishing an amount of compensation for the violations of exclusive copyright. The author
analyzes the characteristic features of compensation as independent means of civil law responsibility.
The author provides detailed analysis of the criteria, which are taken into account when establishing the
amount of compensation (from 10 000 rubles to the 5 000 000 rubles), such as character of violation,
period of unlawful use of copyrighted results of intellectual activity or means of individualization, degree
of guilt of a perpetrator; prior violations of exclusive rights of the right owner by a perpetrator, as well as
analysis of the specific features of application of these criteria in the Russian judicial practice. Additionally,
the article includes analysis of the issues regarding calculation of compensation for the violation of
an exclusive right as double cost of the units of objects, sound recordings, goods, on which the trademark
or the place of origin information was put unlawfully, or double cost of the right to use the object, object
of allied rights, trademark, as defined based on the cost of lawful use of an object in comparable circumstances.
Keywords:
jurisprudence, legal nature, amount of compensation, responsibility, civil law, intellectual property, individualization, guilt, respondent, judicial practice, use of an object.
Ïðîáëåìû òåîðèè îòðàñëåé ïðàâà
Reference:
Moreva, I.M. (2013). Recognition of absence
of registered right as means
of protection of proprietary rights. LEX RUSSICA (Russian Law), 8, 857–864. https://en.nbpublish.com/library_read_article.php?id=62908
Abstract:
It is rather complicated to define the criteria, which may be used as a basis for the due protection
of proprietary rights, taking into account that there should also be no violations of rights and lawful
interests of other participants of civil turnover. This position is proven by the practice of the Constitutional
Court of the Russian Federation, the courts of general jurisdiction and arbitration courts. The
borderlines between the related means of protection are rather flexible, and the positions of the highest
judicial instances are ambiguous, providing for the variety of interpretations of their provision in the
practice of lower instance courts. Based upon the practice of application of the provisions of the Federal
Law of July 21, 1997 (with the amendments of May 7, 2013) N. 122-FZ «On the state registration of right
to immovable property and deals with it», the author discusses the key tendencies in the choice of due
means of protection of proprietary right. Recognition of absence of registered right is one of the means
of protection of proprietary rights to immovable property, which was developed and duly recognized in
the legal practice as lawful. The legal practice provides for such characteristic features of this method as
independency and exclusive character.
Keywords:
jurisprudence, protection, civil rights, vindication, recognition of a right, voidance of a deal, restitution, registered rights, unauthorized construction.
Êîììåíòàðèé çàêîíîäàòåëüñòâà
Reference:
Gavrilov, V.V. (2013). Formation and international
legal capacity
of the «ASEAN Plus Three» forum. LEX RUSSICA (Russian Law), 8, 865–874. https://en.nbpublish.com/library_read_article.php?id=62909
Abstract:
The article is devoted to the analysis of the activities of the «ASEAN Plus Three» forum as a specific
form of cooperation of the Eastern Asian states. It includes a brief historical overview of the formation of the
ASEAN Plus Three and key stages of cooperation of its Member States. Taking examples of institutional and
norm-making mechanisms, which function within the framework of the ASEAN Plus Three, the author shows
the key differences between this union and international inter-governmental organizations, possessing international
legal personality. Analysis of these specific features shows that their member states are currently
not ready to form a developed network of international treaties on the main spheres of their cooperation.
The Forum functions via organization of activities of various meetings and working groups, which form legally
non-binding declarations and show the low level of legalization of the relations among their Member States.
The ASEAN Plus Three Forum as an international union has some specific features compared with the «classic»
international organizations. Among such features one can point out the absence of international legal capacity,
multi-level coordinational character of activities of its institutional divisions, which do not provide for the
possibility of making decisions, which would be legally binding for the Member States; presence of consensusbased
mechanism, which is aimed for the development and acceptance of political documents.
Keywords:
jurisprudence, international, inter-governmental organizations, international legal capacity, regional cooperation ASEAN, institutional mechanism, norm-making mechanism, forum.
INTERNATIONAL PUBLIC LAW
Reference:
Antonova, E.Y. (2013). Theoretical model for
the corporate (collective)
criminal responsibility. LEX RUSSICA (Russian Law), 8, 875–883. https://en.nbpublish.com/library_read_article.php?id=62910
Abstract:
The article concerns an issue of theoretical model of corporate (collective) criminal responsibility. The
author defines the factors, which socially provide for the corporate (collective) criminal responsibility, she analyzes
the correlation between collective civil, administrative and criminal responsibility, as well as the mechanism
of criminal activities of corporate (collective) entities. The article contains a conclusion that corporate
(collective) criminal responsibility should only be applied in cases, when other means (civil or administrative)
applicable to collective entities fail to restore social justice and prevent new harmful acts towards the social
relations protected by criminal law. The mechanism of unlawful acts of corporate (collective) entities arises
from the criminal corporate culture, which may be understood as a policy, means of management, course of
activities or practice of a corporate (collective) entity as a whole or of its structural divisions, within the process
of which the unlawful activities in the name of (or in the interests of) a corporate (collective) entity is allowed,
supported or neglected by the managing persons. Additionally, the article provides for the conditions for the
corporate (collective) criminal responsibility, and the conditions eliminating criminal character of activities of
legal entities and other collective entities, punishments and other means of criminal legal character, which
may be applicable to a collective entity.
Keywords:
jurisprudence, criminal responsibility, corporate culture, corporate entity, legal entity, collective subject, corporate guilt, subject of responsibility, social prerequisites, public danger, comparative analysis.
Discussion forum
Reference:
Shekhovtsov, V.A. (2013). Genesis of the Russian Parliament:
the first steps. LEX RUSSICA (Russian Law), 8, 884–897. https://en.nbpublish.com/library_read_article.php?id=62911
Abstract:
The article is devoted to the analysis of two directions within the process of genesis of the Russian
parliament: the pre-Parliamentary bodies of state government, their structure and forms of activities and the
project of formation of Parliament in the Tsarist Russia. The multi-stage, contradictory process of formation
of the Russian parliament includes formation, organization of work the pre-Parliamentary bodies of state
government, as well as formation and development of the ideas of parliamentarism. At the time of its formation in IX century, the Russian (Kyiv) state, represented a type of an early feudal monarchy, and the popular
assembly (veche) was one of the state government bodies. Veche was a gathering of the fully legitimate male
city dwellers, which was regarded as a legally superior government body in Novgorod. It performed legislative,
executive and judicial functions. The Novgorod veche gave power and competence to other bearers of public
power (the prince, the eminence, posadnik (mayor) and tysyatskiy (captain of the thousand). the Council of
Boyars is also of much interest to those studying the first elements of formation of the representative (legislative)
government bodies in Russia. From the middle of XVI century to the middle of XVII century the activities
of the Council of Boyars were complemented by the Assemblies of the Land (Zemskoy Sobor). From the start of
the era of «enlightened absolutism» of the Empress Catherine the Great the liberal ideas, the theory of separation
of powers, natural law, social pact, etc. start entering Russia from the West. The state government bodies,
the pre-Parliamentary forms, the ideas of formation of a Parliament in Russia were the streams and sources,
which after many centuries of evolution lead to the formation of the Parliament of the Russian Federation and
the formation of the Russian parliamentarism.
Keywords:
jurisprudence, legislative process, state, Duma, Zemskoy Sobor, Council Code, the Prince, parliament, draft Constitution, state government, bodies.
HISTORY OF STATE AND LAW
Reference:
Gontar, I.Y. (2013). Principle of justice
and institution of guilt
in criminal law. LEX RUSSICA (Russian Law), 8, 898–905. https://en.nbpublish.com/library_read_article.php?id=62912
Abstract:
The article concerns the principle of justice and institution of guilt In the criminal law, their enshrinement
in criminal law as basic principles (together with the principle of humanism), as provided for in the basic
provisions of criminal law regulation. The author discusses such issues as implementation of the principle of
justice in the criminal law in reality. The author also studies theoretical issues of justice as such and justice in
criminal law. He analyzes norms of General and Special Parts of the Criminal Code of the Russian Federation
in regard of their compliance with the principle of justice. The article also analyses guilt, which is an important
principle of criminal law. The author analyzes definition and contents of guilt, its main forms, its practical
implementation, and debatable issues, such as dual (complicated) forms of guilt, and crisis of the institution of
guilt in criminal law, which is due to accumulation of contradictions in legal norms, and to the need for their
development, practice of application of criminal law, and theoretical works of legal scholars regarding the
topical issues of guilt.
Keywords:
jurisprudence, principle of justice, guilt, institution of guilt, crime, form of guilt, social danger, personality of a criminal, encroachment, criminal act, criminal law.
Ïîëåìè÷åñêèå çàìåòêè
Reference:
I.Ya. Gontar' (2013). Printsip spravedlivosti i institut viny v ugolovnom prave. LEX RUSSICA (Russian Law), 8, 906–919. https://en.nbpublish.com/library_read_article.php?id=62913
Keywords:
yurisprudentsiya, printsip spravedlivosti, vina, institut viny, prestuplenie, forma viny, prestupnoe deyanie, ugolovnoe pravo.