Reference:
Laptev, V.A..
The system of sources
of entrepreneurial law
// LEX RUSSICA (Russian Law).
2014. № 6.
P. 674-682.
DOI: 10.7256/1729-5920.2014.6.65025 URL: https://en.nbpublish.com/library_read_article.php?id=65025
Abstract:
The studies of the system of sources of entrepreneurial law allows to define the place of the
branch of law within the system of law, as well as to analyze the norms regulating entrepreneurial activities
and economics as a whole. The author offers to single out three historical periods: pre-Soviet,
Soviet, and modern (post-Soviet), providing their brief characteristics. He offers to understand the system
of sources of entrepreneurial law as the combination of forms of entrepreneurial law (elements of the
system), which are coordinated and connected among themselves with the unity of the object of legal
regulation – economic activity. The author singles out the characteristic features of the system: structural
character, co-subordination, coordination, relevance, interconnection and unity. The system of sources
of entrepreneurial law may be divided into international and domestic parts of national law. The author
notes the tendency for the harmonization of the Russian entrepreneurial law with the international law,
which is among other matter is influenced by the participation of Russia in the WTO, the EurAsEC and the
Customs Union. The author offers to distinguish the sources of entrepreneurial law on the territorial basis
into international, federal, regional, municipal and local territorial levels. He notes the dependency of the
modern law and economics.
Keywords:
entrepreneurial law, branch of entrepreneurial law, system of entrepreneurial law, sources of entrepreneurial law, forms of entrepreneurial law, system of sources of law, classification of sources of law, form of law, systematization of the entrepreneurial law, codification.
Reference:
Krasnova, I.O..
Environmental security as
a legal category
// LEX RUSSICA (Russian Law).
2014. № 5.
P. 543-555.
DOI: 10.7256/1729-5920.2014.5.64913 URL: https://en.nbpublish.com/library_read_article.php?id=64913
Abstract:
The author discusses historical roots of the legal matter of environmental security, defining the problems
of legal regulation, providing characteristics of the international legal policy in this sphere and its influence
upon the development of environmental law of Russia regarding environmental security regulation. The
article includes evaluation of the terms such as industrial, radiation, chemical and biological security, environmental
security in emergency situations. The article also contains detailed analysis of normative legal acts regulating
the environmental security relations, revealing the defects of legal regulation. The article also includes
analysis of the issue of correlation between the terms “protecting the environment” and “environmental security”
in environmental legislation. Finally, the author substantiates her own approach towards understanding
“environmental security” as the title of an institution of environmental law, defining its contents and possible
perspectives of its development.
Keywords:
jurisprudence, dangerous industrial objects, radiation security, environmental security, environmental emergency situations, protection of the environment, industrial security, the science of environmental law, institution of environmental security, genetically modified organisms.
Reference:
Shigurov, A.V..
Closed form of preliminary hearings on
criminal cases: a critical evaluation
// LEX RUSSICA (Russian Law).
2014. № 5.
P. 556-563.
DOI: 10.7256/1729-5920.2014.5.64914 URL: https://en.nbpublish.com/library_read_article.php?id=64914
Abstract:
The article is devoted to the studies of the norm on preliminary hearings at the stage of preparation
of a criminal case for the judicial hearing in a form of a closed judicial hearing. In the opinion of the author
prohibition for the persons not being parties to the case to be present in the judicial hearing cannot be substantiated
with the secrecy of issues being discussed. Analysis of the requirements of the European Convention
on publicity of judicial hearings and the category of “justice” in the Russian legislation allowed the author to
draw a conclusion that the justice is being implemented in a preliminary hearing when the decision is made
that the criminal case or criminal prosecution are terminated, or the evidence is excluded. Such as position is
substantiated with the following. First of all, in the opinion of the author termination of the criminal case or
criminal prosecution involves legal evaluation regarding guilt (lack of guilt) of a criminal defendant. Secondly,
evaluation of admissibility of evidence and lack of guilt of a criminal defendant are elements of judicial activity
on implementation of justice. The position of the court on admissibility of evidence is expressed in a separate
decision, made in writing at the preliminary hearing, and it also should be included in the judicial sentence.
Accordingly, resolution of a petition of a party on exclusion of an inadmissible evidence by the court at the
preliminary hearing is also one of the stages of implementing justice. The author draws a conclusion that the
legislator should use the same approach for both preliminary hearings and other types of hearings: they should
generally be open for the public, but may be closed based upon the conditions provided by law.
Keywords:
criminal judicial proceedings, preliminary hearing, court, justice, openness, publicity, termination of a criminal case, exclusion of evidence, judicial proceedings, presumption of innocence.
Reference:
Zhavoronkova, N.G., Agafonov, V.B..
Legal problems of economic regulation
of environmental protection
// LEX RUSSICA (Russian Law).
2014. № 4.
P. 421-428.
DOI: 10.7256/1729-5920.2014.4.64194 URL: https://en.nbpublish.com/library_read_article.php?id=64194
Abstract:
The article contains a complex study of legal problems regarding economic regulation of environmental
protection, and based upon it with due consideration to theoretical and empiric studies of legal
norms, establishing economic mechanisms for the environmental protection in the light of current integration
processes, the authors single out the main provisions of the state policy in this sphere. The authors
substantiate the conclusion that the legal regulation of protection of environment is closely related to the
economic regulation of modernization of the state, that is why, the legal methods of regulation of economics,
as reflected in the normative legal acts, have a mediated legal influence upon the environmental conditions
in general. The theoretical value of the article is due to the fact that its conclusions and conceptual
proposals may be used in scientific and practical activities for the improvement of the federal legislation and
in the process of teaching environmental law in the leading higher educational institutions of Russia.
Keywords:
innovative development, concept, strategic planning, modernization, environment, economic regulation, legal regulation, integration processes, the Customs Union, the World Trade Organization.
Reference:
Podolnyi, N.A..
System of principles of criminal
judicial procedure as a system
of moral values
// LEX RUSSICA (Russian Law).
2014. № 4.
P. 429-436.
DOI: 10.7256/1729-5920.2014.4.64195 URL: https://en.nbpublish.com/library_read_article.php?id=64195
Abstract:
The article concerns the issue of moral values of criminal judicial procedure in Russia. Attention is paid
to the interrelation between the principles of criminal process and moral values prevailing in a society. It is
stated that the system of principles of criminal process is a type of a projection of the system of moral values of the society upon the justice. The author analyzes the system of principles of criminal process, and the conclusion
is made that in various historical periods society and state paid special attention to certain principles.
These principles were best suitable for reflecting the moral needs of the society at the time. Additionally, they
represented reaction of the society to a certain law-enforcement practice, which did not correspond with the
moral ideas in the society. However, the author of this article supports the view that in spite of its great importance
of certain principles for society and state at times, they are all necessary in order for justice to be fair, and
they should be observed very scrupulously.
Keywords:
criminal judicial proceedings, principles of criminal process, system of moral values, justice, fairness, truth, presumption of innocence, parties to criminal judicial proceedings, defense advocate, court.
Reference:
Butnev, V.V..
Mechanism for the protection
of subjective rights
// LEX RUSSICA (Russian Law).
2014. № 3.
P. 274-283.
DOI: 10.7256/1729-5920.2014.3.63964 URL: https://en.nbpublish.com/library_read_article.php?id=63964
Abstract:
The article substantiates the definition of the mechanism for the protection of subjective rights within
the unity of the system of legal means, which serves the restoration of violated subjective rights, protection of
interests protected by law, resolution of legal disputes and elimination of other obstacles in the implementation
of subjective rights. The main elements of this mechanism include protective norms of law, protective legal
relations and forms of protection of subjective rights as a complex of internally corresponding organizational
events aimed at the protection of subjective rights within the unified legal regime. Regulative norms of law
regulate normal positive behavior of subjects of social relations, while protective norms regulate behavior of
subjects in conflict situations due to legal offences, challenging of a subjective right, formation of other obstacles
in its implementation. The contents of protective legal relations include material protective subjective
right to the protection of a victim and victim’s right to demand restoration of a violated legal position form an
offender, and a corresponding protective obligation of the offender. The court is not a subject of material protective
relations. Protective relationship goes through the stages of formation (primary development), specification
and implementation. The transformation of a protective legal relation from one stage to another takes
place due to the activities of the participants of protective legal relation or the bodies supervising the parties to
the protective relationship. These acts are implemented within the framework of organizational legal forms of
protection of subjective rights. All of the forms of protection are divided into local (voluntary implementation of responsibility measures by an offender, self-protection, regulation of the dispute by the parties themselves) or
jurisdictional (protection of right by a superior body). The judicial form of protection is a type of jurisdictional
form of protection of subjective rights.
Keywords:
protection of subjective rights, protective norms, protective relations, means of protection, organizational legal norms, mechanism for the protection, mechanism of legal regulation, structure of protective mechanism, legal regulation, forms of protection.
Reference:
Lushnikov, A.M..
Russian labor law: challenges of the
XXI century
// LEX RUSSICA (Russian Law).
2014. № 3.
P. 284-293.
DOI: 10.7256/1729-5920.2014.3.63965 URL: https://en.nbpublish.com/library_read_article.php?id=63965
Abstract:
The article formulates a definition of challenges in the development of labor law through revealing patterns
, defining them based upon the tendencies of further development and the attempt to bring law-making
and expert activities into accordance with them. Then based upon the patterns the author singles out the main
tendencies of development of labor law. He provides a review of the main tendencies of development of the labor
law. He substantiates a conclusion on the expansion of the labor law at the turn of the centuries. He discusses the
concept of “flexibility” of labor relations in the modern condition due to the widening of the scope of non-typical
forms of employment. The author discusses a problem of legal limits to the “flexibility” of labor law. Special attention
is paid to the “new look” of the personal labor rights of a worker in the conditions of information society. The
author provides characteristics of the right of worker to dignified labor with respect to its international dimension.
The author then notes the perspectives of the further improvement of the legal mechanism for the social partnership
as the basis for the harmonization of individual and collective labor rights.
Keywords:
labor law, patterns, tendencies, international standards of labor, social partnership, information labor rights, expansion of labor law, untypical forms of employment, flexible labor relations, trade unions.
Reference:
Panko, K.K..
Rules and methods of the Russian
criminal law-making
// LEX RUSSICA (Russian Law).
2014. № 3.
P. 294-304.
DOI: 10.7256/1729-5920.2014.3.63966 URL: https://en.nbpublish.com/library_read_article.php?id=63966
Abstract:
The article is devoted to the issues regarding principles, rules, methods and means of legislative technique
of criminal law of Russia. The author evaluates basic, general and specific rules and methods within legislative
technique, providing and analyzing the classification of rules in criminal law-making. One of the basic
positions in this article is the understanding of the legal technique by the author as a developed and practically
verified combination of principles, rules, means and methods for the development, formation, publication and
systematization of the normative and individual legal acts. Classification of legislative activities based upon
the contents and purposes of relevant issues allows to single out three types of legal techniques: 1) techniques
for the organization of legislative activity; 2) techniques for the conceptual development of drafts of legislative
decisions; 3) techniques for writing and layout of draft laws (legislative technique). Further, the author analyzes
specific principles, methods, rules and other technical components. In particular, correlation of abstract and
casuistic methods should be regulated by the following rule: the more abstract is the description of the actions
comprising the objective elements of a crime, the more specific the description of consequences of these acts
should be, and vice versa. This rule allows to overcome the unilateral character of a legislative construction,
but they may only be applied to the materially defined crimes, while the formally defined crimes may be formulated
only by referring to a specific type and kind of behavior.
Keywords:
legal technique, legislative technique, rules of legislative technique, principles of law-making, means of law-making, methods of law-making, classification, typology, systematization, legal norm.
Reference:
Ryzhkova, E.A..
Public and private elements
in financial law
// LEX RUSSICA (Russian Law).
2014. № 2.
P. 168-175.
DOI: 10.7256/1729-5920.2014.2.63840 URL: https://en.nbpublish.com/library_read_article.php?id=63840
Abstract:
Public and private elements clash in the modern financial law no matter what legal system it belongs
to: Anglo-Saxon, Continental or Muslim. In spite of the fact that the financial law protects public interest first
of all, ignoring its private law component may cause significant discord in the society. The historic specificities,
religion, fundamental principles inherent to any legal system (reason in Anglo-Saxon legal systems, practicality
in Continental legal systems, and justice in the Muslim legal systems) formed the fundamentals of the financial
system of each state. Currently in the process of implementation of financial activities of the states, they need
to take into account their own general interests (financing the state apparatus, administrative and coercive
apparatus, army, foreign political and economic activities, etc.), which are typical of them from the moment
of their formation, and also take care of the good of any natural person or legal entity, providing them with
the financial opportunities for the implementation of their vital goals and ambitions. Such changes took place
due to the growing role of private finances in the financial system. That is why, the states take the path of integration,
and they try to find compromise in the issues of clashing private and public interests in the sphere of
implementation of economic activity, when developing new norms of financial law.
Keywords:
financial law, Continental system of law, Muslim, law, Anglo-Saxon law, public law, church tax, religion and law, public interest, public finances, Zakat.
Reference:
Rossinskiy, S.B..
Investigation activity protocols and
protocols of judicial hearings on criminal
cases: problem statement
// LEX RUSSICA (Russian Law).
2014. № 2.
P. 176-184.
DOI: 10.7256/1729-5920.2014.2.63841 URL: https://en.nbpublish.com/library_read_article.php?id=63841
Abstract:
The article substantiates the need to examine the investigative activity protocols and protocols of judicial
hearings as evidence in criminal cases. Based upon numerous Russian publications on criminal procedural
law of pre-Revolution, Soviet and modern period, the author makes a conclusion that the scientific attention to
this problem is not sufficient. The author considers that currently there is a tendency in criminal process for the
more detailed examination of the protocols of investigation activity acts and protocols of judicial hearings as
evidence on a criminal case. However, there is much less detail on their use in evidence, if they are compared
to the testimony, expert opinions or material evidence. For this reason the author makes an attempt to define
directions for the further development of this scientific problem in order to improve the procedural legislation
and legal practice.
Keywords:
evidence, proof, investigative activities, judicial hearing, criminal procedural legislation, investigator, court, judicial proceedings, procedural act, material evidence.
Reference:
Chkhutiashvili, L.V..
Organization and improvement of the
environmental cost accounting at the
Russian enterprises
// LEX RUSSICA (Russian Law).
2014. № 2.
P. 185-198.
DOI: 10.7256/1729-5920.2014.2.63842 URL: https://en.nbpublish.com/library_read_article.php?id=63842
Abstract:
The article concerns the issues of organization and improvement of environmental cost accounting at the
Russian enterprises in the market economy conditions. The modern society has established an absolute priority of
market relations, and environmental protection is related to the rational nature management. According to the
Rio de Janeiro Declaration on Environment and Development of 1992 the states should cooperate in order to form
an open international economic system, which would lead to economic growth and sustainable development in
all of the states, having an influence on environment. On one hand, natural resources have to be used for development,
on the other hand, industrial and other processes inevitably influence the environment. Achievement of
the optimum development results with the minimal environmental damage is the main goal of the sustainable
development concept. One of the problems of the environmental economics in the light of the sustainable development
concept is development and improvement of directions and principles of environmental cost accounting
and control, including financial and management audit, reporting on environmental markers and environmental
audit. At the same time, the link between nature protection activity management and environmental accounting
is clear. In the practice of organization work the value of environment is shown through the need to spend money
on protection and revival of the environment, requiring the need for environmental cost accounting. The information
provided by it may have a significant impact upon the decision-making in management. These decisions
should be based upon consideration of the interests of the organization, as well as general social and economic
goals of protection of atmosphere, water and land resources, and health of the population.
Keywords:
jurisprudence, accounting, natural resources, environmental protection, sustainable development, environment, market relations, economic growth, international economic system, industrial processes.
Reference:
Wen Нeng-guo.
Formation and development of the science
of administrative law of the People’s
Republic of China
// LEX RUSSICA (Russian Law).
2014. № 1.
P. 24-32.
DOI: 10.7256/1729-5920.2014.1.63783 URL: https://en.nbpublish.com/library_read_article.php?id=63783
Abstract:
The administrative goals are similar in all states, however, the administrative legal sciences differ. Development
of the science of administrative law in the People’s Republic of China started in 1980s after the policy of reforms
and openness was proclaimed. Its formation and development were influenced by the Roman-German and
Anglo-Saxon legal families, as well as by the Soviet administrative law science. All of the above had its influence
upon the Chinese legal science. Generally, the development of science of administrative law in the People’s Republic
of China is always followed by the development of administrative legislation and norm-making. The process of
mutual development allows the science of administrative law of the People’s Republic of China to lead the way for
legislation and justice, and to provide criticism of legal practice. Currently the Chinese administrative legal branch
is already formed, while it still has many weak points. In the future it shall evolve based upon the achievements of
global and Chinese science. In addition to these aspects, the article contains analysis of stages of development of
administrative law science in China. The author singles out three periods (the so-called “gap” period, the period
of formation and development, and the reform), showing the characteristic features of problems subject to administrative
legal scientific studies, such as the issues of priority of administrative legal protection in comparison
with the structure of state administrative apparatus, importance of administrative procedures in comparison
with material law, etc. Additionally, the author shows the degree of studying principles of administrative law.
Keywords:
jurisprudence, leading the way and criticism, role, administrative legal protection, functions of science, characteristic features, development, stages, science of administrative law, branch of administrative law, China.
Reference:
Ha Shuju.
New tendencies in the development of civil
procedure system in the People’s Republic
of China
// LEX RUSSICA (Russian Law).
2014. № 1.
P. 33-40.
DOI: 10.7256/1729-5920.2014.1.63784 URL: https://en.nbpublish.com/library_read_article.php?id=63784
Abstract:
The Civil Procedural Code of China is one of the key acts of the state, reflecting the principle of
standardized procedure of civil judicial process. The Civil Procedural Code of the People’s Republic of China
was drafted in 1991, and in 2007 the Government of the PRC amended it in part of supervision over the
civil judicial procedure and enforcement of the decisions. However, due to the rapid economic development
of China the amount of novel types of civil cases is constantly growing, and the existing civil procedural
system is not sufficient for meeting all of the needs of justice. The new Civil Procedural Code of the
PRC entered into force in 2013, and this Code provides for the principle of good faith, serving a guidance
for the judges and parties to the case; the system of judicial procedure on public claims, the system of judicial
procedure on malicious claims, the system of procedure on small claims; the system of assistance in
protection of third party rights and interests, etc. were formed; the system of judicial procedure was improved.
These and other issues became the subject of analysis in this article. Additionally, the author comments
on the new contents of the guarantee of rights of parties to file claims based on a novel procedure
of initiating the case, the right to petition for the revision of the case and the system of providing evidence.
Keywords:
the PRC, lawsuit, the right to file a claim, evidence, novel tendencies, revision of a case, small claim, malicious claim, basic principle, civil lawsuit.
Reference:
Li Lianqi.
Legal system of the enterprises with foreign
capital in the People’s Republic of China and
the tendencies of its development
// LEX RUSSICA (Russian Law).
2014. № 1.
P. 41-49.
DOI: 10.7256/1729-5920.2014.1.63785 URL: https://en.nbpublish.com/library_read_article.php?id=63785
Abstract:
The basis of the legal system for working with foreign capital in the People’s Republic of China is
formed by “commercial organizations” and its nucleus is formed by the Laws “On share joint ventures of Chinese
and foreign capital”, “On enterprises involving foreign capital”, “On Chinese and foreign jointly managed
enterprises”, etc., regarding enterprises involving foreign capital. This legal system combines corporate law, anti-
monopoly law and elements of other branches of law, brining into unity all of the elements of legal systems
in order to regulate access to direct foreign investment, their management, administration, etc. From the legal
viewpoint the norms of corporate law are recognized as general legal provisions, and the norms of Law “On enterprises
involving foreign capital” are recognized as lex specialis. If one is to follow the principle of legal practice,
providing that lex specialis norms dominate over general norms, any legal disputes may be resolved. The
People’s Republic of China uses the method of attracting direct foreign investments in addition to investments
for the formation of new enterprises. Also, the People’s Republic of China allows foreign entrepreneurs to use
the method of mergers and acquisitions in order to form new enterprises, however, this sphere is also subject
to anti-monopoly legislation. Additionally, the People’s Republic of China provided an optimum benefit policy
for the foreign investors via the division (unification) method. Currently the problems of legal system regarding
enterprises involving foreign capital in the People’s Republic of China concern its “bulky” large-scale character,
doubling of legislative article and complicated legal system, involving domestic and foreign capital. That is why
the People’s Republic of China has started the process of further improvement of legislation on the companies
involving foreign investments in order to ease the “highest national regime” and “lowest national regime” of
foreign enterprises, the possibility to terminate some laws regarding enterprises with foreign investments,
and development of a unified Law “On foreign investments” and formation of a good investment climate.
Keywords:
China, foreign capital, law, share joint ventures, jointly managed ventures, corporate law, antimonopoly legislation, mergers and acquisitions of corporations, national regime, tendencies of development.
Reference:
Wang Jiahui.
The right to share-based contract use of
agricultural lands (on the joint
stock basis)
// LEX RUSSICA (Russian Law).
2014. № 1.
P. 50-57.
DOI: 10.7256/1729-5920.2014.1.63786 URL: https://en.nbpublish.com/library_read_article.php?id=63786
Abstract:
The right to contract for use of land based on shares is a system of gaining the rights of shareholders
or gaining profit, when the subject of a right is a company or a co-operative entity, having a right
of land contracting and having a share (being a shareholder) by providing this right as a share. Legal nature
of such a system falls within the system of turnover of real rights. There are three models of gaining
a share in the land contracting: co-operation of land shares, professional co-operative of farmers – shareholders
and the share society with limited liability. The latter is a relatively ideal form for the organization
of shareholders. The contracting right for use of land is in conflict with the economic system of consumer
work and legal system of companies. Defining the subject of right to contract work and abolishing
the limiting laws regarding right to contract for use of land based on shares could allow to improve the
existing economic system of consumer work as well. Additionally, by forming a standardized capital evaluation
system regarding the light to contract for the work on land and the system of leaving the share by
the farmers, one could form a legal system for the right to contract for the use of land based on shares.
Keywords:
jurisprudence, limited liability, co-operative, entering a share, unbroken lands, use of lands, legal nature, share nature, models, right to contract work.
Reference:
Yu Haisheng.
Legal truth in establishing the nature of the
object of proof
// LEX RUSSICA (Russian Law).
2014. № 1.
P. 58-66.
DOI: 10.7256/1729-5920.2014.1.63787 URL: https://en.nbpublish.com/library_read_article.php?id=63787
Abstract:
The Chinese criminal law theory has two points of view on the nature of object of proof, as established
by the court in the process of criminal judicial proceedings. Their followers find the nature in objective
or legal truth accordingly. The dispute between the followers of the concepts of objective and formal (legal)
truth appeared on the basis of the differences in the understanding of the nature of epistmic elements of the
circumstances of a case in a criminal judicial proceedings. In the opinion of the author the nature of the object
of proof is defined by the category of legal truth, since it is more relevant to the actual reality, and it allows to
find a logical explanation to the possible mistakes in the evaluation of the circumstances in a case, it supports
the concept of priority of procedure and specific features of procedural activities. The discussion of problem
of the object of proof is usually followed by the discussion on objective and legal truth, which is basically an
epistemic dispute. When a criminal case is initiated the primary goal of law-enforcement bodies is to establish
the circumstances of the case. But what are these circumstances? The Chinese theoretical scholars discuss this
issue actively, and the main dispute is between the followers of the concepts of objective or legal truth.
Keywords:
jurisprudence, criterion of proof, object of proof, concept of legal truth, concept of an objective truth, objective truth, epistemology, law-enforcement bodies, criminal judicial procedure, China.
Reference:
Barzilova, I.S..
Definition and legal nature
of legal regimes
// LEX RUSSICA (Russian Law).
2013. № 11.
P. 1169-1175.
DOI: 10.7256/1729-5920.2013.11.63442 URL: https://en.nbpublish.com/library_read_article.php?id=63442
Abstract:
The article includes analysis of legal nature of legal regimes, their types and structure. The legal
regimes are defined as certain degree of order of legal means in accordance with the goals and aims
within the legal regulating process. Legal regimes make highly dynamic modern social relations more
sustainable, provide for the integrity of legal system, its development and functioning under the influence
of objective and subjective reality factors. It is noted that legal regimes are implemented via a system
of state government bodies of various levels, and in the course of their activities these bodies provide
procedural guarantees of legal policy in the modern Russia. By the means of regime regulation, the state
has considerable influence upon the social processes, changing their vectors and intensity. The article
includes detailed analysis of legal regimes. The author studies structural elements of legal regimes and
their main types.
Keywords:
jurisprudence, legal regimes, legal means, legal regulation mechanism, means of legal regulation, legal technique, legal definitions, legal regulation, legal nature of legal regime, legal constructions.
Reference:
Lipen, S.V..
Problems of structuring
and development
of scientific knowledge
// LEX RUSSICA (Russian Law).
2013. № 10.
P. 1047-1055.
DOI: 10.7256/1729-5920.2013.10.63252 URL: https://en.nbpublish.com/library_read_article.php?id=63252
Abstract:
Studies of the issues regarding structure and development of theory of state and law are quite
topical within framework of a number of methodological problems in the modern legal science, allowing to
study the evolution patterns of legal scientific knowledge. From the standpoint of level-related approach to
the scientific structure the general theory of state and law include the medium-level theory and private law
theories. The inner structure of general and private law theories is formed by legal categories and scientific
ideas, which discuss the patterns of functioning of the legal system in a society. Development of theory of
law and state may be presented as a process of ever greater specification of scientific knowledge, presupposing
the complex multi-level studies of more and more specific legal issues, as well as consecutive development
of legal categories and scientific ideas. In order to study methodological problems of formation
and development of the theory of state and law, one should take into account both the general scientific
approaches (issues of formation and structure of scientific knowledge, directions of scientific development,
patterns and stages of this process), as well as scientifically uncovered patterns within specific legal theories,
characterizing the process of their formation and development (objective criteria for the formation of
private scientific theories, correlation of its object with the object of general theory, specific features of its
methodology, structure, functions, etc.
Keywords:
jurisprudence, theory of law and state, structure of theory of law and state, private scientific legal theory, medium-level theory, legal category, development of theory of law and state, specification of scientific knowledge, scientific studies, philosophy of science.
Reference:
Khabibulina, O.V..
Legal regime of state service
// LEX RUSSICA (Russian Law).
2013. № 8.
P. 840-846.
DOI: 10.7256/1729-5920.2013.8.62906 URL: 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.
Reference:
Rabets, A.P..
Compensation
for the violation
of an exclusive right
// LEX RUSSICA (Russian Law).
2013. № 8.
P. 847-856.
DOI: 10.7256/1729-5920.2013.8.62907 URL: 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.
Reference:
Moreva, I.M..
Recognition of absence
of registered right as means
of protection of proprietary rights
// LEX RUSSICA (Russian Law).
2013. № 8.
P. 857-864.
DOI: 10.7256/1729-5920.2013.8.62908 URL: 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.
Reference:
Soktoev, Z.B..
Causal link in the road
and transportation crimes
// LEX RUSSICA (Russian Law).
2013. № 7.
P. 706-717.
DOI: 10.7256/1729-5920.2013.7.62884 URL: https://en.nbpublish.com/library_read_article.php?id=62884
Abstract:
The author evaluates the Issue of causal link in the road and transportation crimes. The author shows
that it does not suffice to use the common everyday meaning of the cause, or philosophical category of causality,
logical means for its establishment in order to establish causality in road transportation crimes. It is necessary
to take Into account the criminal law aspect of this Issue, when all of the causing circumstances, including the
actions of a person, should be regarded in their totality as a single systemic cause, which generates socially dangerous consequences by influencing the object of crime. The basis for the criminal law mechanism for the road
transportation crime is the influence of criminal act on the object of crime. This Influence destroys the relations
of secure road-traffic safety, and contradicts its social goals The destruction of the socially secure situation In the
sphere of driving mechanical transportation vehicles creates a dangerous situation (conditions) In the process
of road traffic. The conclusions of the article are of interest for the further development of the causal link In the
criminal law.
Keywords:
jurisprudence, causality, causal link, road, transportation, crime, dangerous, situation, mechanism.
Reference:
Zinovieva, O.A..
Environmental control and supervision:
problems of their correlation
in theory and legislation
// LEX RUSSICA (Russian Law).
2013. № 6.
P. 601-615.
DOI: 10.7256/1729-5920.2013.6.62721 URL: https://en.nbpublish.com/library_read_article.php?id=62721
Abstract:
Having analyzed the legislation and the amendments to it, the author finds solutions to several problems,
including correlation of environmental control and environmental supervision, definitions of environmental
control and control in the sphere of rational use of natural resources, types of environmental control.
The author also attempts to find out why there is no municipal control in the sphere of environmental protection
(environmental control), while there is municipal control in the sphere of use and protection of environmental
resources.
Keywords:
jurisprudence, state, supervision, control, analysis, environmental, natural, resources, protection, environment.
Reference:
Kalinina, T.M..
The compulsory measures
of medical character:
definition, types and goals
// LEX RUSSICA (Russian Law).
2013. № 6.
P. 616-520.
DOI: 10.7256/1729-5920.2013.6.62722 URL: https://en.nbpublish.com/library_read_article.php?id=62722
Abstract:
The article is devoted to the problem of basis, goals and types of the compulsory measures of medical
character. It analyzes their contents, periods and other related issues. The author formulates their definition
as measures, which are applied to the people, who have committed the socially dangerous acts acting under
the conditions of psychological disorder or suffering from a psychological disorder, and which include medication
treatment, physiological or psychological influence, aimed to cure and to improve the psychological
condition of such persons and prevention of new socially dangerous acts by these persons. The author comes
to a conclusion that the basic international legal acts, which touch upon the status of certain categories of
persons, including the persons suffering from psychological disorders, are aimed to protect the latter persons
from discrimination.
Keywords:
jurisprudence, compulsory measures of medical character, psychological disorder, socially dangerous act, judicial psychiatric expertise, legal status, person, discrimination, compulsory medical treatment, punishment.
Reference:
Vedeneev, Y.A..
Object and structure of legal theory
// LEX RUSSICA (Russian Law).
2013. № 6.
P. 521-632.
DOI: 10.7256/1729-5920.2013.6.62723 URL: https://en.nbpublish.com/library_read_article.php?id=62723
Abstract:
The article is devoted to one of the most fundamental issues in the legal science, which is related
to the doctrinal and institutional practices of its formation and development, and is in some respects a
response to an article by Professor V.V. Lazarev «Legal science: current state, challenges and perspectives
(theoretical thoughts)» (Lex Russica, 2013, 2). The necessity of the studies of this problem is due to the need
to widen the possible scope of the grounds for the epistemological turns in the development of the legal
science as a whole, and theory of state and law in particular. Introduction of the categories «legal text» and
«legal language» renews and changes the epistemological system within the evolution of the legal theory
itself. These general categories include the possible reflections of the legal source in general — its ontology
and axiology.
Keywords:
jurisprudence, legal theory, legal ontology, epistemological turn, legal concept, legal text, legal language, legal communication, self-reflection, conceptual nucleus, linguistic turn, meta-theory.
Reference:
Zhavoronkova, N.G., Agafonov, V.B..
Theoretical problems
of formation of the natural
resources law
// LEX RUSSICA (Russian Law).
2013. № 1.
P. 25-33.
DOI: 10.7256/1729-5920.2013.1.62374 URL: https://en.nbpublish.com/library_read_article.php?id=62374
Abstract:
The article contains a complex study of the key doctrinal strategic documents in the sphere of natural
resources law and legislation in the sphere of guarantees of national and environmental security. Based on
these sources, taking into account the theoretical and empirical analysis of legal norms, which establish the
guidelines for the rational use of natural resources, one may single out the key directions of the state policy
in the sphere of legal guarantees for the rational use of natural resources and improvement of the natural
resources law within the framework of guarantees of national security of Russia. It also allows to form the proposals
for the improvement of modern natural resources legislation and the mechanism of state government
in this sphere of social relations. The object of the study includes doctrinal documents of natural resources law
of the Russian Federation (strategies, concepts, doctrines, which establish the key vectors for the development
of legislation in the sphere of use and protection of natural resources in the long-term and medium-range
perspective), as well as other strategic documents in the sphere of national and environmental security (The
Concept of National Security of the Russian Federation, the Environmental Doctrine of the Russian Federation, The Concept of the Transition of the Russian Federation to Sustainable Development, The Bases for the State
Policy in the Sphere of Environmental Development of the Russian Federation for the period till 2030, etc.).
The theoretical value of the study is due to the fact that its conclusions and concepts may be used in theoretical
and practical work in order to improve the federal legislation in the sphere of nature management and
protection of specific components of environment, as well as in educational process in the sphere of natural
resources law in the leading institutions for higher legal education in Russia. The methodological basis for the
study includes the normative legal method and institutional functional analysis. The result of the studies is a
draft for the Concept of State Policy and Strategy in the Sphere of Legal Guarantees for the Rational Nature
Management and Improvement of Natural Resources Law within the framework of guarantees of national
security of Russia, which includes the goals, principles, directions and mechanisms for the coordination of the
activities by the implementing subjects.
Keywords:
jurisprudence, concept, doctrine, nature management, security, ecology, environmental protection, natural resource, codification, supervision.