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Siberian Law Review

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Vol 16, No 2 (2019)

THEORY AND HISTORY OF LAW AND STATE, HISTORY OF LAW AND STATE STUDIES

120-125 298
Abstract
The article deals with the problems of the system of state power and the basis of the formation of armed forces in the principalities of Ancient Russia. The role of cities in the formation of the armed forces and their relationship with the princely power is studied. The differences in the legal and political status of different categories of city-states in the Russian principalities are studied. The article deals with the problems of real rights to land in the aspect of the formation of the armed forces and the formation of the feudal elite of the old Russian principalities. The legal status of soldiers in comparison with other categories of the population is studied. The questions of common interests of the ruling princely dynasty and the population of Ancient Russia, as well as the contradictions arising between them in the aspect of the formation of the army as the most important coercive force of the state are studied. The analysis of documentary sources on the history of ancient law, chronicles, norms of Russian Truth, the diplomatic correspondence of the Russian princes with the Byzantine emperors, etc. Conducted a comparative analysis of the formation of feudal elites in the armed forces in the state of the Franks and in Ancient Russia. The differences in the formation of the Lena army in the countries of Medieval Europe and the Prince's squads in the Russian principalities are revealed. The interrelation of construction of system of the state power, tax system, the social device and completing of armed forces is studied.
126-132 288
Abstract
Among the numerous socio-economic and political theories of the 20th century, the theory of stateless socialism, anarchism played an important role. N. I. Makhno in Ukraine, I. Broz Tito in Yugoslavia have both tried to embody it in reality. The possibilities of self-governing communes and work collectives in increasing the interest of workers, reducing the bureaucratic burden on finance and enterprise management, and increasing labour productivity are still of interest to theorists. Events of the 1980’s - 1990’s filled with collapse and civil war in the territory of the Yugoslav Federation built on the principles of anarcho-syndicalism. In the course of the Perestroika in the Soviet Union, among the numerous parties and movements, anarchists of the USSR began their work. Having become an integral part of the opposition to the Soviet system, the federal state and the communist regime, anarchists (anarcho-syndicalists) contributed to the development of crisis phenomena in the socioeconomic sphere. The idea of creating a Confederation of Siberian lands and the relationship of a newly formed subject of international relations with a geopolitical player of the studied historical period proposed by anarchosyndicalists in Siberia approximated a geopolitical catastrophe - the collapse of the USSR.

CONSTITUTIONAL LAW, CONSTITUTIONAL JUDICIAL PROCEEDINGS, MUNICIPAL LAW

133-140 331
Abstract
The article contains an analytical review of international legal documents regulating linguistic legal relations in the world and the problems of their legal regulation in Russia. The question of socio-political importance of the language policy of the state in a globalizing world is also investigated. Attention is drawn to the lack of proper legal regulation of linguistic legal relations in modern Russia, which was the fundamental reason for the announcement of 2019 - the Year of languages of the Russian Federation. The main attention is paid to those activities that need to be developed at the present time, taking into account the new organizational and legal opportunities associated with the creation of a new Ministry of Education of the Russian Federation.It is concluded that the main means of achieving an optimal balance between language groups in terms of linguistic security is the development of bilingual education on the basis of a well-developed system of legislation that provides a clear and understandable mechanism of legal regulation of linguistic legal relations. The improvement of the system of teaching the Russian language in the educational institutions of the republics that are part of Russia should be carried out exclusively taking into account regional and ethno-cultural peculiarities.

CIVIL LAW, BUSINESS LAW, FAMILY LAW, INTERNATIONAL PRIVATE LAW

141-149 355
Abstract
The key factor in choosing a proprietary method of protecting civil rights is the question of ownership of an item. In a situation when the land plot is transferred under a deal to a new owner, who subsequently made a deal to alienate him to a third party, the original owner cannot be recognized as a person who has retained possession, despite the fact that access to the land plot is free, did not begin to use it, did not enclose and did not take other measures to visualize their possession. In this case, the claim for recognition of the right absent is not applicable. Protection of rights should be carried out with the help of a vindication suit. The Author, fearing the expansion of the scope of the claim for recognizing the right absent, which is not covered by the limitation period, gives arguments that restrict the application of this claim strictly to the cases listed in par. 4 p. 52 of the Resolution of the Plenum No. 10/22, when: the ownership of the same property is registered for different persons; the title to movable property is registered as real estate; mortgage or other encumbrance ceased.
150-155 467
Abstract
Traditionally, the bases of civil liability are in the center of attention of legal scholars, which is due not only to their theoretical value, but also to practical importance both for the law enforcer and for any subject of legal relations. The study of the “breach of duty” category as the basis of civil liability for non-performance of a contract under German law is due to the lack of a comprehensive view of its nature and essence. This article attempts to reflect on the theoretical and practical aspects of breach of duty, entailing liability for nonperformance or improper performance of the contract. The study of “violation of duty” through the prism of civil liability allows from a scientific point of view to look at the problem of its grounds. The author notes that there are no similar legal constructions in domestic civil law and the understanding of breach of contract as a basis for civil liability, generally recognized in Russian law, is not reflected in German law.

LABOR LAW, SOCIAL SECURITY LAW

156-163 358
Abstract
In connection with the 25th anniversary of the Constitution of the Russian Federation, the study of the role of the Constitutional Court of the Russian Federation, including in the field of labour law, is particularly relevant. This article analyzes the activities of the Constitutional Court of the Russian Federation on constitutional control over the observance of freedom in the sphere of labor, the freedom of an employee and employer as parties to the labor contract. The legal positions elaborated by the court concerning the permissible restriction of rights and freedoms of a person and a citizen, which by virtue of their general nature can also be applied when assessing the admissibility of restriction by law of employee and employer freedom in the course of an employment contract, are studied. Some ordinances and definitions of the Constitutional Court of the Russian Federation, which, in the author’s opinion, explain in detail the current constitutional and legal meaning of the labor legislation norms in terms of the freedom of labor and freedom of economic activity. The focus of the article is on the latest acts of the Constitutional Court of the Russian Federation. It is concluded that the freedom of employee and employer as parties to an employment contract cannot be considered properly secured without constitutional control activities.
164-169 303
Abstract
The article deals with the problem of regulation and defense of rights of social partners in the case of execution of an agreement with violated procedure and incorporated illegal norms. Regardless of the fact that there is a clause of the no-use of conditions of collective agreement covered by law or their annulment, there is no practicable mechanism for the implementation of acts. The analysis of scientific approaches and cases has allowed to establish ways of solution. It has been suggested to transform a category of labour dispute into individual employment dispute in the adversary proceeding order. Concerning the way of defense of violated rights necessity for changes of labor law is proved for recognition of the collective agreement inoperative in full or in part.

LAND LAW, NATURAL RESOURCES LAW, ECOLOGICAL LAW, AGRICULTURAL LAW

170-174 243
Abstract
This article deals with the controversial aspects of the implementation of the state ecological supervision of protection of atmospheric air. The Author focuses on gross violations of inspections: late submission of the inspection report to the inspected person, legality of obtaining results of tests of emissions into atmospheric air outside the inspection period, and the question about the possibility of changes in the list of officials authorized to conduct the inspection during the inspection. The presented scientific article analyzes not only theoretical aspect (normative legal acts), but also practical aspect (judicial practice) on the considered problems. The analysis of the existing normative legal acts and judicial practice allows the Author to formulate conclusions about the possibility of recognizing violations committed by inspectors during on-site inspections as grounds for invalidating the results of the audit. At the conclusion of the article the author formulates the conclusion about the absence of necessary amendments to existing legislation and it is spoken about need of the edition at the level of the Ministry of natural resources and ecology of the Russian Federation of the explanatory provision concerning implementation of the state ecological supervision formulating answers to the considered disputable aspects.
175-181 297
Abstract
The deterioration of the environment as a result of its pollution, the use of unsustainable consumption and production patterns, the loss of biodiversity, pressure on ecosystems, natural and man-made disasters remains one of the main obstacles to sustainable development in Russia and necessitates the correct definition of ensuring environmental safety. The statement of goals, tasks, choice of means and, of course, the creation of a solid legal platform that will allow to formulate clear permissions and prohibitions in the environmental sphere directly depends on this. A systematic approach, taken as a methodological basis, involves the study of any phenomenon through the understanding of its essence. To this end, the Author has consistently analyzed the concept of “environmental safety”, examined its main elements, disclosed the structure and given the definition of the concept of “ensuring environmental safety”.

CRIMINAL LAW AND CRIMINOLOGY, PENITENTIARY LAW

182-188 232
Abstract
In the article, the Author defines the contemporary issues of victimity of Mongolian citizens in the territory of the Russian Federation. The issue is actual since in 2014 the visa regime was abolished between the two neighboring countries, what predetermined the increased flow of tourists in both directions. In order to determine the factors of victimity of foreign citizens in the country of stay, the Author uses both general scientific and special methods of cognition, including comparative legal, statistical, systematic, documentary, etc. As a result of the studies of special literature, statistics of law enforcement agencies, materials of criminal cases, there are certain conclusions made; the main directions of criminal infringement against foreign citizens aree established; preventive measures on prevention or reduce the cases of this kind and minimize the criminal consequences against foreign citizens in Russia are defined.
189-192 282
Abstract
The relevance of the topic is due to both the heightened danger of organized criminal activity and the fact that the issue of the criminal law-subjectivity of a legal entity has not yet been resolved. On this depends the development of ways to counter organized crime and increase the effectiveness of this activity. The article discusses ways to use legal entities in organized criminal activities and offers recommendations for the suppression of such crimes. The inefficiency of administrative and civil liability measures applied to legal entities has been proved. In this connection, the proposed Author’s understanding of the grounds and limits of bringing organizations to justice.

CRIMINAL PROCEDURE

193-197 408
Abstract
The article is devoted to the detailed analysis of the novel of the criminal procedural legislation defining the order of withdrawal of electronic media and copying of information from them. In December 2018, the Criminal Procedure Code of the Russian Federation was supplemented by article 1641 established “features of withdrawal of electronic data carriers and copying of information from them in the course of investigative actions”. At the moment, it is forbidden to withdraw electronic media in the investigation of cases in the field of business, except in cases established by law. The investigator has the right to copy information from electronic media. The requirement for the mandatory participation of a specialist in the seizure of electronic media, the legislator left unchanged. Assessing the legislative amendments, the authors substantiate the need to recognize as invalid the mandatory requirement for the mandatory participation of a specialist in the removal of electronic media.
198-202 280
Abstract
The article examines the functioning of the judicial system of the Russian Federation, based on the delimitation of competence and the definition of the procedural relationship between the courts of different branches of jurisdiction. The Author considers the contradictions encountered in the decisions of the Constitutional Court and the Supreme Court, and the conflicts that exist in the decisions of the highest body of constitutional justice on the same subject matter. The proposed mechanisms for resolving conflicts in judicial practice are analyzed, relevant proposals are made to improve the current Russian legislation.

JUDICIAL ACTIVITY, PROSECUTORIAL ACTIVITIES, HUMAN RIGHTS AND LAW ENFORCEMENT ACTIVITIES

203-208 647
Abstract
In connection with the close political and economic partnership between Russia and the PRC, the issues of legal regulation of state supervisory bodies of friendly countries are highly relevant, since the implementation of international agreements depends, among other things, on the rule of law provided by the prosecutor's office. This article covers the history and constitutional and legal status of the modern Chinese Prosecutor’s Office. The position of the prosecutor's office in the system of the PRC state mechanism is highlighted. The conditionality of the prosecutor's office to a particular branch of government, as well as the main functions of the Prosecutor’s Office of the People's Republic of China, the status of the prosecutor and the requirements for it are investigated. All of the above aspects are considered through the prism of a comparative legal analysis of prosecutors of the PRC and Russia. The result of the study revealed the identity of the systems of the prosecution authorities of China with the Soviet model of prosecution. However, despite the fact that the modern system of prosecution authorities of China was formed under the influence of the Soviet legal system, in modern conditions there is a significant difference between the systems of prosecutorial oversight of the Russian Federation and the People’s Republic of China in the context of the constitutional legal situation.

CRIMINALISTICS, FORENSIC ACTIVITY, OPERATIONAL AND INVESTIGATIVE ACTIVITIES

209-215 791
Abstract
The article focuses on the basics of criminalistics identification. The authors emphasize that the emergence of the method of criminalistics identification was initiated by the need to obtain reliable knowledge about the crime event and all its components. The need to recreate a picture of the past event and establish all the objects involved in it, and as a result, its correct legal assessment from the standpoint of current legislation, initiates the use of reliable methods based on the knowledge of the natural and exact sciences by the subjects of investigation. The role and place of the considered method in identification methods, as well as the impact of the achievements of scientific and technical progress on the improvement of identification technologies are shown. It is noted that this method, as a reliable tool of knowledge, along with the investigating crimes, is increasingly being used in other spheres of human activity. A special place belongs to him in the work of modern information systems.
216-222 456
Abstract
The article examines the historical background and scientific foundations of the theory of criminalistics thinking, its relationship with the more studied forms of thinking. The modern points of view on this phenomenon are considered. Criminalistics thinking can be considered dualistic, as a set of initial prerequisites for cognitive activity (static), and in dynamics, as a complex of mental operations. A system of signs characterizing criminalistics thinking, including systematic, gaming and heuristic qualities, purposefulness, efficiency and openness is proposed. It considers the complex nature of criminalistics thinking, which is one of the unifying properties of various subjects of criminal justice. The Author proposes the definition of forensic thinking as a set of personal characteristics of the cognizing subject and methods of cognitive activity, allowing to perceive and process fragmented, incomplete information in order to reveal and explain a criminal event.
223-227 343
Abstract
The article deals with the problems of forensic prevention of corruption crimes in higher education. The methodological recommendations on the assessment of corruption risks are analyzed, and the structural elements of the maps of corruption risks for workers in this field are proposed. The process of assessing such risks in order to prepare such cards is recommended, including with the participation and taking into account the views of all stakeholders, including civil society institutions and experts. Scientists and practicing criminologists can and should become such experts. The article tested the hypothesis and formulated a proposal for the creation by criminologists of projects of corruption risk maps with a forensic and operational-search component. The purpose of such cards can be twofold: this is a brief forensic characterization of corruption crimes in higher education, addressed to investigators; it is a means of legal education as a form of forensic prevention of these criminal encroachments.

ADMINISTRATIVE LAW, ADMINISTRATIVE PROCESS

228-233 662
Abstract
The article deals with issues related to classification and certain aspects of the legal status of subjects of tax legal relations, the concepts of “subjects of tax law”, “subjects of tax legal relations”, “participants in tax legal relations” are compared. The analysis of various classifications of subjects of tax legal relations is carried out with a more detailed study of classification by the method of normative certainty. The composition of the subjects fixed by the tax legislation and subjects not included in the list of participants in tax legal relations, as defined in Article 9 of the Tax Code of the Russian Federation, is detailed. As a result of the study, measures are proposed to improve tax legislation.
234-239 338
Abstract
The article is devoted to the theory and practice analysis of administrative responsibility for violation of the legislation in the educational environment. Based on the study of scientific works, the Author concludes that the problems of administrative liability for violations of legislation on education have not yet become the subject of independent scientific research. In this connection, many theoretical issues of the institute of administrative liability in the field of educational relations are debatable and need further research. The component elements of administrative legal offenses in the educational environment are analyzed. A comparative analysis of the legislation of the Russian Federation and the Republic of Kazakhstan is carried out, some other states apply administrative responsibility measures to protect the rights of citizens and other participants in educational relations. The Author made an attempt to classify the norms of the Code of the Russian Federation on administrative offenses regulating the issues of administrative liability of participants in educational relations. Based on the results obtained, the Author substantiates the need to improve the current administrative legislation.
240-244 250
Abstract
The current legislation of the Russian Federation in the field of procurement for state and municipal needs is not perfect and has a number of gaps. The article deals with the problem of differentiation of illegal behavior of customers from justified in the procurement from a single supplier (contractor) on the basis of paragraph 4 of part 1 of article 93 of the Law on the contract system. The relevance of the topic is due to the lack of legal definition of procurement fragmentation. The Author analyzes the law enforcement practice associated with the involvement of officials of state and municipal customers to administrative responsibility for violations of the legislation of the Russian Federation in the field of procurement, presents the opinion of researchers and practitioners on the issue. As a result of the study concluded that a new practice of qualification by supervising and judicial authorities of the actions of customers, regarded as a violation of the requirements of the Law on the contract system.

TRIBUNE OF YOUNG SCIENTISTS

245-249 308
Abstract
The article is devoted to the issue of the legal status of socially oriented non-profit organizations. Despite the active development of the institution of socially-oriented non-profit organizations, the question of their legal nature has not been systematically investigated. The Author attempts to systematize the main arguments in favor of the point of view that, by their legal nature, socially oriented non-profit organizations should be referred to public law institutions. Based on theoretical studies, the practice of the Constitutional Court of the Russian Federation, the Author identifies features that characterize socially oriented non-profit organizations as an independent form of the realization of the constitutional right to associate.
250-254 318
Abstract
The Author examines various approaches to the definition of cryptocurrency, the issues of legislative regulation of cryptocurrency in Russia, proposes measures to counter crimes using cryptocurrency. Based on the study, the Author concludes that in order to regulate cryptocurrency transactions, as well as in order to create a uniform judicial practice in cases related to cryptocurrency, it is necessary to create a unified regulatory framework on the subject matter. The Author proposes to legislatively fix the definition of cryptocurrency, the conditions for its issuance, storage and execution of transactions with it, as well as the circle of persons authorized to carry out operations to create, exchange, etc. with cryptocurrency; conduct training of specialists in the field of cryptocurrency through training courses, lectures, seminars, conferences, etc., including abroad, as well as to ensure the exchange of experience between experts in the field of cryptocurrency; create a technical base in law enforcement to track cryptocurrency transactions; to ensure the formation of scientific schools in the field of cryptocurrency.
255-258 253
Abstract
The article analyzes the approaches to the classification of forms of public law activity of the population of municipalities, highlighted the legal criteria for classification data. The problem of the validity of making additions to Part 5 of the Federal Law No. 131-FZ by fixing new forms of public law activity in the form of a special hotel article; The authors' theoretical positions regarding the distinction between forms of direct democracy and forms of participation in the exercise of powers of public authorities are considered. Identified signs of forms of direct implementation of local government, which can be used as criteria for distinguishing between forms of public law activity of the population of the municipality; the author suggests a classification of the forms of direct implementation of local self-government in its implementation in the aggregate of legal criteria, which are divided into three subgroups.


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ISSN 2658-7602 (Print)
ISSN 2658-7610 (Online)