THEORY AND HISTORY OF LAW ENFORCEMENT
The subject of the paper is methodology of law enforcement policy, elements and relevance for law enforcement activity.
The main aim of the paper is to confirm or disprove the hypothesis that methodology of law enforcement policy is a system of intellective elements and a part of the higher level system of law enforcement policy simultaneously.
The description of methodology. The methodological basis of research is systematic approach. Authors analyze the methodology of law enforcement policy as a combination of elements influencing on each other. The dialectic and formal-legal methodology is also used when the authors analyze trends in judicial practice.
The main results and scope of their application. Law enforcement policy is a state strategy that defines the main directions, methods and means of implementation of legal regulations. From the standpoint of a systematic approach, law enforcement policy is a system of managerial type that consists of three elements: subject, object and means (methods). The methodology of law enforcement is a system of interacting elements, such as: modeling the main directions of the implementation of the law; specification of the general strategy for the implementation of legal regulations; identifying trends in law enforcement; correction of law enforcement practices; scientific and methodological support of law enforcement policy. The authors analyze each of the listed elements of the law enforcement policy, pointing out their role in improving the practice of law enforcement. The proposed analysis may become a crucial point for research in the field of law enforcement methodology. The results of research may be used as the basis of correction of methodology of law enforcement practice.
The subject of the paper is the approaches to the concept of “non-legal rules”.
The main aim of the paper is to confirm or disprove the hypothesis that rules become non-legal when they contradict the principles of law and are totally ineffective.
The description of methodology. The authors apply methodology of different legal theories: natural law, libertarian-legal, sociological, communicative, normative and integrative approaches to law, using formal logical and sociological research methods (observation method).The formal-legal method is also used with regard to characteristics of particular Russian laws.
The main results and scope of their application. Legal rule may be unlawful for an external observer – in coordinates of another legal system or in comparison with law in a social sense. From the point of view of the internal observer, including the law enforcer, the following rules are non-legal: 1) regulations that were adopted, but initially or later it was officially recognized that they contradict the principles of law and the rules of higher legal force; 2) rules that could not be applied principally or that were not implemented until their cancellation.
Many rules widely assessed as unfair, immoral, not consistent with the principles of law could be a part of the current system of law for a long time and could not be officially qualified as defective. Most of the very ineffective rules are still implemented selectively, some of them become quite effective in the future. Rules that are obviously not in conformity with acts of higher legal force may not be recognized as illegal officially because of various reasons. All of the non-legal rules, however, are very problematic for the law enforcement officials in several respects:
– they may come into conflict with other regulatory systems of social regulation, including other social law of large (significant) groups and organizations, such situation entails difficulties in their legitimation and implementation;
– they may come into conflict with other acts (rules, legal principles) within this or a related system of legal law;
– they can be canceled (invalidated) in future, inter alia from the moment of their adoption.
Conclusions. Rules are also potentially illegal, when they: 1) clearly contradict the principles of law and the rules of higher legal force; 2) are extremely ineffective. Such acts of lawmaking are very problematic from the point of view of their legitimation and implementation. Such acts are relatively common in Russian reality. The orientation of the practice to check their legal nature within the framework of the norm control is important for movement towards effective, fair and non-contradictory law, and not in the opposite direction.
The subject. The paper is devoted to the constitutional basis of modern legal policy.
The purpose of the paper is to confirm or disprove the hypothesis that constitutional concept of legal policy is necessary basis of reform of legal relations between constituent entities in federative state.
The methodology of the study includes general scientific methods (analysis, synthesis, comparative method, description) as well as particular academic methods (formal-legal method, interpretation of legal acts).
The main results, scope of application. The emergence and further development of a legal policy based on constitutional provisions and norms continues to impact significantly on the organization of state and local authorities. Democracy, federalism, republicanism and legalism are the four components that can form the basis for the development of the doctrinal conception of legal policy aimed to the strategic development of these constitutional axiomatic postulates. In Russia there is no clearly defined "road map", which is based on the strategic planning of the constitutional system. The Constitution of the Russian Federation contains enough inaccuracies of both legal and technical and substantive nature.
Conclusions. It is necessary to develop a concept of legal policy. Such concept is necessary basis of reform of legal relations between constituent entities in federative state.
THE LAW ENFORCEMENT BY PUBLIC AUTHORITIES
The subject of the paper is legal conditions for realization the constitutional right to education.
The purpose of the paper is to confirm or disprove the hypothesis that legal measures of realization of the right to education that are used in developed foreign countries can be used in Russia to improve Russian educational legislation.
The methodology. General scientific methods as analysis, synthesis, induction, deduction, comparison were used. The author also uses the formal legal interpretation of Russian judicial decisions as well as comparative legal method.
The main results and scope of their application. The court decisions supporting the principle of territorial consolidation of schools indicate that this principle does not exclude the possibility of citizens not residing in the fixed territory to enter the school of their choice. However, the implementation of this feature, due to the lack of legislative regulations of the procedure, can cause bias, corruption and other abuses of constitutional right to education. Inequality children’s opportunities to enter the school due to their place of residence persists in the individual selection process. Situations where there are no clear and consistent rules for the provision school education inevitably generates numerous violations of citi-zens' rights and inequality based on the financial situation of parents. In Russia, there is no "waiting list", when children wishing to enroll in a particular school, would be taken to the vacant place. Accordingly, the adoption of such decisions by school administrations also lies in the plane of subjective discretion and causes corruption risks. China's experience is interesting because there are transparent, equal conditions for legal attraction of extra-budgetary funds to the school system, which do not turn access to education in the best schools into a corruption scheme or competition of parents ' incomes and do not infringe the rights of those who seek to enter them on the basis of their own achievements and knowledge. Speaking about the British experience, it is interesting to note that the lack of vacancies in the school itself can not be a reason for refusing to enroll a child in school.
Conclusions. The legal experience of developed countries, such as the United Kingdom, Germany, Austria, Japan, China, in regulating the grounds and procedures for the provision of school education can be successfully applied in order to improve the Russian legislation, which establishes the legal mechanisms for the implementation of the constitutional right to education.
The subject. The paper is devoted to legal analysis of category “checks and balances” in the scope of constitutional legal coercion.
The purpose of the paper is to confirm or disprove hypothesis that mechanism of checks and balances is a method of prevention and resolution of constitutional conflicts.
The methodology of the study includes comparative legal method as well as general scientific methods (analysis, synthesis, description) and particular academic legal methods (for-mal-legal method, interpretation of legal acts).
The main results and scope of their application. While the Russian legal tradition focused on the search for optimal "checks" and "balances" as well as defended the theoretical model of formalism in this matter, the English legal tradition, on the contrary, focused on finding the optimal functional balance of all branches of government. The system of checks and balances serves the purpose of resolving constitutional and legal conflicts, when it is based on a functional approach rather than a formal one. The factors of “checks and bal-ances” mechanism are:
– formation of the three branches of government in different ways;
– comparability of powers of the Supreme authorities belonging to various branches of the powers with discrepancy of terms of their powers;
– authorities of every branch of government must have "counterbalance" – the powers of compensatory, substituting type – besides it’s traditional powers. The executive and legislative authorities have "quasi-judicial" powers, the executive authorities have "quasi-legislative" powers often.
– authorities of every branch of government must have "checks" – possibility to participate in the mechanism of constitutional and legal coercion in relation to another branch of the power.
The executive branch can prevent a constitutional conflict generated by a gap or defect of laws through delegated law-making. The executive branch receives "quasi-legislative" powers with delegated law-making. It allows this authorities not only to respond promptly to changing public relations, but also to fill legislative gaps in a timely manner. This "counter-balance" is aimed at preventing constitutional and legal conflicts.
Conclusions. The mechanism of checks and balances, which is based on the principle of separation of powers, is the primary way to prevent constitutional and legal conflicts, and also serves the purpose of resolving conflicts that have already arisen. The main manifestations of this function are the presence of compensatory and substitutive powers of various branches of government and the possibility of one branch of government to participate in the mechanism of constitutional and legal coercion in relation to another branch of government.
The subject of the paper is the analysis of limits of taxation and tax law in the light of e-commerce taxation
The main aim of the paper is to show at the same time financial approach and philosophical approach to classic tax issues
The methodology of the study includes general scientific methods (analysis, synthesis, description) as well as sociological approach.
The main results and scope of their application. The use of new methodology in describing the limits of tax law is not only a matter of tax certainty but also a matter of future fiscal stability. All kinds of behaviours of the internet users we partially owe to the legal regulations. In this perspective, we can give many examples of implementation of the regulative function of law, including also tax law. Constant presence in the virtual world leads to the modification of the object of study. The commonly studied human impact in different areas of the virtual world, including also the creation of the law of Internet, is substituted with a new direction of studies - the analysis of the impact of the virtual world on the behaviour of its users. Not without significance to the issues of taxation of e-commerce are different models (simulations) of behaviours of objects of tax-law relations, which may constitute a basis, on the one hand - for the scientific studies, and on the other hand, the possibility to develop in due time appropriate institutions and mechanisms of tax law.
The presence of new technologies that should be assessed in the light of limits of taxation. We must be aware of the fact that the modern day principles and techniques of taxation shall not stand the test of time and we will be forced to prepare ourselves for their radical change.
Conclusions. Assuming that legal and financial relations are one of the main manifestations of statehood (sovereignty), and their content in terms of this study changes because of the occurring changes of technological nature, the changes in the existing legal and financial relations should be noticed, on the one hand, and on the other hand, the emergence of new legal and financial relations (e.g. legal and financial relation in cyberspace). Due to completely new legal and financial relations (possibly a new type of legal and financial relations), it must be assumed that the modern object of tax law is expanding. Logically, the object of financial law should be also scientifically extended in order to attempt to regulate the taxation in cyberspace or even taxation of robots (virtual robots).The subject of the paper is state ideology is an element of labor market.
The main aim of the paper is to confirm or disprove the hypothesis that main tasks of state ideology as a key element of labor market are positive motivation to systematic long-term employment, as well as social responsibility of business by strengthening the information function of labor legislation.
The methodology of the study includes general scientific methods (analysis, synthesis, comparative method, description) as well as particular academic methods (formal-legal method, interpretation of legal acts).
The main results and scope of their application. The modern labor market should be defined as the vacancy market. At the same time, neither the concept of a vacancy nor its characteristics are established by legislation. The state ideology plays an important role among other information flows in the system of mandatory structural elements of the labor market. The state ideology accompanies the socio-economic development of society. The formation of labor motivation holds the dominant position in the organization of the labor market. State policy in relations on the organization of the labor market is a set of management decisions of the authorities, which form the state ideology among other things. The state, when realize its interests in the sphere of labor legislation, should actively use the so-called advisory type of legal regulation of labor relations. The proposed analysis may become a crucial point for future legal research in the field of labor market.
Conclusions. Positive motivation to systematic long-term employment, as well as social responsibility of business are the main tasks of state ideology as a key element of labor market. The formation and consolidation of such ideology will make it possible to apply the provisions of labor legislation more accurately in accordance with its meaning and purpose.
The subject. This paper is devoted to the study of the legal nature of fees charged by the public authorities for the provision of public services.
The main aim of the paper is to substantiate the answer on the question is this fee a price or a fiscal charge?
The methodology of the study includes general scientific methods (analysis, synthesis, description) as well as particular academic methods (formal-legal method, interpretation of legal acts). The decisions of Russian Constitutional Court are also analyzed.
The main results and scope of their application. The article focuses on analysis of the features and functions of the government, ratio of functions of the government and functions of the public authorities, their powers. State power is exercised by bodies of state power or specially authorized entities on behalf of the state and in the public interest. It excludes the exchange nature of the relations when these bodies and entities implement state power. The nature of the establishment and collection of the fee excludes the equivalence between the size of fee and the size of collection costs of the authorized entity. Therefore, there is no equivalence in the relations on payment of the fee, and therefore the fee has no compensatory character. In turn, the nature of the actions performed by the authorized entity on behalf of and in the interests of the public legal entity, excludes their absolute determi-nation by actions of the payer of the fee. The results of research may become a crucial point for future research of legal regulation of fees.
Conclusions. If a public authority carries out activities related to implementation of governmental and authoritative powers, the fee is based on public law. If an activity can not be associated with implementation of governmental and authoritative powers, the fee can be subject to civil law regulation.
THE LAW ENFORCEMENT BY LOCAL AUTHORITIES
The subject of the article is models of local self-government in Commonwealth countries.
The purpose of this article is to substantiate or refute the hypothesis post-corporate model of local self-government is evolved.
Methods of theoretical analysis are used, as well as legal methods, including the formal legal method and the method of comparative law.
The main results and scope of their application. The corporate model of local government can be characterized by the following features: the lack of full constitutional recognition of local government as an independent form of public authority; formal institutional autonomy of municipal units as public (private-public) corporations of a special type that are not included into the system of state power; limited functional autonomy; lack of constitutional recognition of citizens’ or local communities’ right(s) to local self-government; limited accountability of local governments to the population, including the lack of sufficient legislative guarantees for the election of local authorities. These characteristics, grounded also in the historical specificity of local government development in Great Britain and its colonies, as well as in peculiarities of development of municipal units’ status in English law, are determined by the corporate character of municipal government, which does not arise from the power of communities, but is formed by the state "from above". The author also analyzes the differences in approaches to regulation and organization of local government in the Commonwealth countries.
Overcoming the historical heritage, laid by the genesis of municipal corporations, in a number of Commonwealth states, indicates the formation of a new, post-corporate model of local government, which can be characterized by some features: the establishment of constitutional autonomy of local government as a special form of public power, its development as a form of democracy with greater control over the forms of self-government and governance at the local level by the population, as well as the establishment of a link between self-government and the local community. The proposed analysis may become a crucial point for future research in the field of post-corporate model of local self-government.
Conclusions. Such countries as Australia and Ireland can presently be considered in a state of transition to the post-corporate model of local self-government.
THE LAW ENFORCEMENT BY THE JUDGES
The subject of the paper is guilt as criminal legal category.
The main aim of the paper is to confirm or disprove the hypothesis that there is a need for risk management in order to prevent crime.
The description of methodology. The author uses economic approach and the theory of rational choice as well as the dialectic and formal-legal methodology.
The main results and scope of their application. The greater the probability of socially dangerous consequences of actions, the greater the risk, the greater the degree of guilt of the subject and the degree of danger of the crime. In criminalization the risks should be optimally distributed between the state (installs criminal prohibitions) and the citizens (complying with those prohibitions), as well as between the potential offender and the victim. It is necessary to quantify the risk of socially dangerous consequences (for example, as a percentage) for each form of guilt. This will make it possible to streamline and develop forms of guilt, to correlate specific types of guilt with specific crimes in terms of the risks that the crime carries. New forms of guilt, in particular criminal ignorance, need to be introduced. Unlike negligence, which is difficult to control, ignorance, as well as competence, can be fully controlled. It is necessary to take into account the guilt of the victim, who by his behavior contributed to the crime. If the victim has not taken all precautions ( the more provoked the offender) - he must share the overall result, bear the risk of socially dangerous consequences. If there is a violation of the rules of conduct by the offender and the victim, the court should have the right to substantially mitigate the punishment or to refuse to apply it at all, taking into account the nature and extent of the violations committed by each party. For example, with regard to crimes of minor gravity when the victim provoking a crime, failure to take precautions should provide for mandatory exemption from criminal liability with compensation for harm in civil law. Premeditated intent seriously complicates the disclosure of crimes. This intent should be seen as a basis for more severe sanctions. The results of research may be used as the basis of correction of the criminal legislation.
It is concluded that any form of guilt in any legal system is based on an assessment of the risks of negative consequences.
The subject. The article discusses the procedural peculiarities and grounds for the supervisory (cassation) review of court decisions based on the jury’s decision.
The purpose of the article is to assess the effectiveness of the rules on the grounds for review of courts’ decisions based on jury’s verdict.
The description of methodology. The author uses formal-legal and comparative-legal methods as well as legal interpretation of the text of Russian Criminal Procedure Code and Russian Supreme Court’s decisions. The decisions of Russian Constitutional Court and court statistics are also analyzed.
The main results and scope of their application. In the introduction the author substantiates the relevance of the proposed research by creating a separate cassation and appeal courts of General jurisdiction, a significant extension of jurisdiction of the Russian court with participation of jurors in the district courts as of 1 June 2018., that will result in a manifold increase in the cases before the courts with participation of jurors in the first instance, and a manifold increase in appeals and representations on the decision of the jury. In the second section of the work the characteristic of legal institution of possible turn to the worst for the condemned situation in cassation and Supervisory instances is given, the analysis is widely known of the resolution of the constitutional court of the Russian Federation of May 11, 2005. The third section of the work considers the grounds for possible review of the decision of the courts with the participation of jurors in the order of Art. 401.6 of the Code of Criminal Procedure and grounds proposed by the Plenum of the RF Supreme Court in the Decree of January 28, 2014. The fourth section of the work is devoted to the characteristics of the rules and procedure of Supervisory proceedings, specifies the types of appealed decisions, powers and limits of the rights of the Presidium of the Russian armed forces, provides examples of review of judicial decisions with the participation of juries that have en-tered into force.
Conclusions. The author suggests to replace the grounds for cancellation or amendment of acquittal decisions of courts based on the jury’s decision with the grounds of cassation review of jury trials that are included in art. 664 and 665 of the Code of Criminal Procedure of the Republic of Kazakhstan due to their clearer legal definition and lack of evaluative concepts.
THE LAW ENFORCEMENT IN PRIVATE LAW
The subject of the paper is conclusion and execution of direct contracts between consumers and utilities providers.
The main aim of the paper is to confirm or disprove the hypothesis that direct contracts between consumers and utilities providers are more convenient for utilities providers than for consumers.
The methodology of the study includes general scientific methods (analysis, synthesis, comparison, generalization, description) as well as particular academic legal methods (formal-legal analysis of theoretical and regulatory sources, interpretation of legal acts, judicial and arbitration practice).
The main results and scope of their application. The current procedure for the provision and payment of utilities is based on the concept of "performer of utilities", which are the management organizations, homeowners' associations, housing cooperatives. The performer of utilities enters into a contract with utilities provider. These utilities are acquired by the contractor at the border of its operational responsibility (on the border of an apartment building), then this resource is already provided as a utility service to final users – tenants and owners of premises in an apartment building. Consumers pay for utility services to the contractor of utilities, and he, in turn, transfers the received payments to the utilities provider (resource supplying organization). Such a scheme of contractual relations leads to problems, including the following: the performers do not enter into contracts with the utilities providers (resource-supplying organizations), thereby trying to exclude their responsibility for the quality of services; do not pay fully or partially for the supplied utility resource. In this regard, the legislation has been amended to allow direct contracts between consumers of public services and resource organizations and, accordingly, directly pay for utilities.
Conclusions. Direct contracts between consumers and utilities providers are more convenient for utilities providers than for consumers in the scope of responsibility for the poor quality of utilities.
The subject of the paper is legal nature of suspension of the employment contract.
The main aim of the paper is to confirm or disprove the hypothesis that it would be reasonable to provide for the possibility of suspension of the employment contract.
The methodology of the study includes general scientific methods (analysis, synthesis, description) as well as particular academic legal methods (formal-legal method, interpretation of legal acts). The main results and scope of their application. Changes in industrialization and the global economic crisis inevitably lead to the fact that the standard schemes of relations between the employee and the employer do not meet the requirements of modern times. It needs to revise the structures of regulation of labour relations in Russian labor law. The suspension of an employment contract must be temporary and must continue until the circumstances giving rise to the suspension have been eliminated. The usage suspension of the employment contract entails the need for direct determination of the following guarantees for employees for the entire period: preservation of the employee's place of work (position); prohibition of dismissal of an employee on the initiative of the employer; inclusion of suspension period in the length of seniority for annual basic paid leave; preservation of the employee’s right to get a job with another employer on a part-time basis. The usage of suspension of the employment contract will allow to regulate new forms of employment activity: temporary redeployment of the employee to another employer and secondment into the labor law.
Conclusions. It would be reasonable to provide for the possibility of suspension of the employment contract.
SCIENTIFIC LIFE
ISSN 2658-4050 (Online)
