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Law Enforcement Review

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Vol 3, No 2 (2019)
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THEORY AND HISTORY OF LAW ENFORCEMENT

5-13 2855
Abstract

The subject of the article concerns the assessment of the effectiveness of law.       

The purpose of the article is to identify indicators that reflect the effectiveness of the law.

The methodology of the research includes complex analysis of scientific legal literature, synthesis of ideas as well as formal-legal method of interpretation of legal acts.

The main results and scope of their application. More than 2500 existing normative legal acts of the Russian Federation contain various requirements for improving the efficiency of legal regulation. The complexity of the study is caused by the lack of a common understanding of the phenomenon. The effectiveness of the law is often understood by many authors as the ability to influence public relations in a certain direction useful for society; or as the ability to influence positively on social relations at the lowest cost; or as fundamental feasibility, predetermined by common knowledge, clarity and consistency of legal norms; the correspondence between the objectives of the legislator and development of social relations.           An indicator of the effectiveness of legislation is a criterion for determining the degree of achievement of the goals and objectives of legal regulation. The indicators that are offered by scientists for assessment the effectiveness of law, has logical defects. These indicators are^ frequency of application of laws that are estimated for the effectiveness (I. Samoshchenko, V. I. Nikitinsky, A. B. Vengerov); measure of conflict regulated by this norm of social relations (V. Lapaeva); proportional ratio of the number of facts of lawful behavior to the number of cases of illegal behavior (T. Geiger and E. Hirsch), etc.

Conclusions. The following formula can be proposed to determine the effectiveness of the law: effectiveness = LR2–LR1, where: LR1 - initial legal relations, and LR2 – the state of legal relations on the current date. Effectiveness can be measured in this formula in a number of violations and satisfied claims and complaints. There is no direct connection with the goal of legal regulation in this formula but it is possible, to trace the dynamics of the effectiveness of law with this formula by using statistics data.

14-20 398
Abstract

The subject. The reorganization of the district police in Siberia in the second half of the XIX century is comprehensively examined in the article on the basis of pre-revolutionary legislation. Special attention is paid to the organizational and legal issues of the activities and structure of the district police.

The purpose of the paper is to confirm or disprove hypothesis that the practice of implementing legislative innovations on the status of internal affairs bodies in Siberia in the 19th century was characterized by systematic seizures and violations.

The theoretical and methodological basis of the study includes the principles of historical knowledge – objectivity, historicism, alternative and social approach. These principles let use an unbiased approach to the analysis of the studied problems, as well as a critical attitude to the sources.

The main results and scope of their application. The author concludes that the powers of the police bodies in the region had their own specifics and were much broader than in the central provinces of the Russian Empire. Reorganization of the general police in Siberia in the second half of the XIX century changed the structure and method of staffing the Ministry of Internal Affairs. It was not principled, but rather external. Returning to the forgotten traditions of the organization and activities of the police, it is important to take full account of the historical experience that has been accumulated over the centuries. It is also necessary, taking into account modern realities, to take a fresh look at the already known facts and events in order to overcome old myths and misconceptions and prevent the birth of new ones.

Conclusions. The police reform of 1867 in Siberia left almost unchanged the limits of power, the distribution of duties, procedures, responsibility and accountability of the general police. A large range of prerogatives remained for the police. In addition, many police officers continued to work the old-fashioned way, trying to ignore changes in the current legislation. The legislator failed to put the Siberian internal Affairs bodies in the strict framework of the law, it was recognized by local leaders and visiting auditors.

THE LAW ENFORCEMENT BY PUBLIC AUTHORITIES

21-30 580
Abstract

The subject. The article examines the conceptual foundations of the legal status of civil servants in the legal systems of Europe and the United States.

The purpose of the article is to confirm or disprove hypothesis that there are common concepts and models of the law of civil servants for different legal systems.

The methodology of the study includes general scientific methods (analysis, synthesis, description) and the method of comparative law.

The main results and scope of their application. It is determined that the body of persons working for the state is diversified. Within it, three main groups can be distinguished: the political corps, professional public servants (officers) and auxiliary (service) staff. The author postulates that various theoretical models of civil servants ' rights are closely related to the problem of their position in the legal system. The place in the legal system depends on whether the position of all persons employed in the public sphere is considered as generally public law, or whether the law of public servants is regulated by both administrative and labour law in different proportions depending on the legal system. At the present stage, there are also trends aimed at establishing some rules similar to those that regulate entrepreneurial activity in a free market in the sphere of public administration. The concept of the so-called new public administration is among the most important ideas of this kind.

Conclusions. The author found that the existence of different models of public service in different legal systems does not exclude the definition of some general models of the law of public servants. The most important in that respect is their division according to the nature of employment of civil servants. In countries that have not undergone dramatic political transformation, the concept of the law of public servants as part of public law is commonly accepted – consequently, public servants are regarded as public officers, their employment having the nature of a service. Such a model of public servants law is generally encountered in countries of the Western Europe. The situation is more complicated in countries where there was a political system of “real socialism”, for example, in Poland. Since the 1970s yhe law of public servants is part of labour law there, public servants being, from the formal point of view, employees with whom employment relationships are concluded, mostly using the tool of the contract of employment. It is worthwhile to observe that no decision to restore earlier solutions was made after the political changes of the year 1989.
31-37 570
Abstract

The subject. The author explores the possibility of online voting during the elections from the perspective of urban security.

The purpose of the paper is to confirm or disprove hypothesis that introduction of online voting in the elections in large cities contributes to the growth of the electorate’s confidence and reduction of absenteeism, but only if cybersecurity of metropolises is ensured.

The methodology of the study includes general scientific methods (analysis, synthesis, description) and the method of comparative law.

The main results and scope of their application. The very essence of online voting involves the use of a dedicated Internet platform and digital devices. This method has many advantages, including the ability to attract many people, the convenience and reliability of the whole process, as well as the automatic calculation of results. However, the issue of online voting in large cities directly affects the problem of ensuring their cybersecurity. Electronic voting can be subject to certain risks like any Internet procedure. Some of them have their own offline counterparts, such as the sale of votes. Others are unique to the digital environment, such as cyber violations and DDoS-attacks.

Conclusions. Electronic voting helps to solve the problem of low voters’ turnout, unites communities, universities, companies and people. This new process must be protected from any potential threats to security.

An inefficient voter authentication procedure can adversely affect the reliability of the entire online voting system. Hacking the authentication system can lead to fraud and theft of data and votes. The blockchain system provides effective protection against such hacks and cyberattacks. It would be effective if it was possible to download a special anti-virus program from the election commission website to clean the user's computer from malicious content or at least check the presence of viral content. The license key of such a program may be valid only for the period of the elections. The decision against forcing an electronic vote for a particular candidate can be made by an online voting system that allows you to change your choice several times.  We need well-thought-out training and advanced training programmes for state and municipal employees, including programmes for initial technical training, to reduce security risks. It is necessary to train possible users of the online voting system, since the security of a computer or smartphone, the absence of virus programs, as well as the timeliness of voting are in the area of responsibility of online voters. Online voting may not be the only way a voter can express his or her will. It is always necessary to keep the possibility of classical voting by paper ballots.

THE LAW ENFORCEMENT BY LOCAL AUTHORITIES

38-49 515
Abstract

The subject. The article analyzes the conflict of norms of the current legislation, the materials of law enforcement practice in terms of establishing the powers of local governments to issue permits for flights.

The purpose of the paper is to confirm or disprove hypothesis that the powers of local governments to issue permits for flights are not based on the law and are established only in by-laws.

The research was carried out with use of main scientific methods (analysis, induction and deduction), special (statistical) method as well as the method of interpretation of the legal acts.

The main results and scope of their application. Monitoring of legislation and law enforcement shows that local governments are more likely to be an additional barrier to business activity than a body with the necessary competence to make the appropriate decision.

Local self-government bodies are empowered by a secondary normative act to issue a permit for certain actions in the airspace of the Russian Federation over populated areas. It is a question of exclusively state powers which were assigned to local governments by the will of the by-law.

A number of provisions of secondary legislation regulating the peculiarities of use of airspace of the Russian Federation does not have clarity and certainty. For example, it is not clear what kind of legislation should regulate skydiving (physical culture legislation or regulation of organization of flights); hot air ballooning (is it sphere of leisure activities or organization of flights). More precise legal regulation is needed for such cases.

One of the purposes of imposing the functions of flight permits on local governments is to ensure the security of the population, its life, health and safety of property. But local governments have almost no own security tools. The legislation on local self-government does not contain requirements for employees of local self-government bodies related to the availability of specialized knowledge, sufficient competence to assess the degree of risk or threat. The adoption of a significant number of municipal legal acts concerning flight permits is initiated by the transport Prosecutor's office, which considers the relevant activities of local governments as a municipal service. Analysis of law enforcement practice shows its great diversity. Some courts decide that local governments have no right to regulate the issuance of flight permits. The most numerous are court decisions when the court compels local governments to adopt administrative regulations for the provision of the relevant municipal service concerning flight permits. A certain group of court cases consists of decisions taken by the court on the basis of refusal of the claim in connection with the voluntary issuance of flight permits.

Conclusions. It is shown that powers of local governments to issue permits for flights are not based on the law and are contained only in by-laws. The information possessed by the local self-government bodies can be transferred to the relevant state authorities for operational decision-making in the order of interdepartmental interaction. This power has no real impact on improving the security of residents of cities and other settlements.
50-58 620
Abstract

The subject. The article examines legal framework for organization and activities of territorial public self-government as well as means of state support of territorial public self-government.

The purpose of the article is to confirm or disprove hypothesis that the issue of providing legislative framework for the structure of territorial public self-government requires quick solution.

The research was carried out with the main scientific methods (analysis, induction and deduction), special (statistical) method as well as the method of interpretation of legal acts

The main results and scope of their application. The author makes some suggestions aimed at improving legislation covering organizational form of legal entity – territorial public self-government, and at providing self-support to territorial public self-government, and ensuring legality of meetings of territorial public self-government participants.

The issues of increasing legitimacy of decisions made by public authorities are very urgent today. One way of creating public trust in government agencies and in local self-government agencies, as it is closest to the people, is different forms of citizen participation in local decision-making. Territorial public self-government is considered as an effective method which gives a chance to reach every citizen.

Conclusions. The research met the following scientific results. The issue of providing legislative framework for the structure of territorial public self-government requires quick solution. There are grounds for including the powers to provide state support to the organization and development of local self-government in the constituent entities of the Russian Federation to the powers of public authorities of the constituent entities of the Russian Federation. Part 11 of Article 27 of Federal law 131 –FZ stipulating the right of municipal formation to determine the terms and procedure for allocating the necessary funds out of the local budget to territorial public self-government requires some changes. The practical need to impose the obligation on bodies of the Ministry of internal Affairs of Russia, carrying out registration of citizens at their place of residence, to prepare and provide lists of residents of the territory of territorial public self-government to citizens and local self-government is revealed.

THE LAW ENFORCEMENT BY THE JUDGES

59-76 497
Abstract

The subject. The article is devoted to problems of institute of collective legal protection in German civil procedure law.

The purpose of the article is to confirm or disprove hypothesis of the need to introduce the institution of general class action in German civil procedural law.

The methodology of the study includes general scientific methods (analysis, synthesis, description) and sociological approach.

The main results and scope of their application. German civil procedure law is based on the principle of "two parties". However, there are many situations that do not fit into the traditional scheme of individual legal protection, because either the conflict is affected by many persons, or the conflict goes beyond the individual interests of the affected persons. For processes in which a significant number of persons are involved, as a means of protection, first of all, claims for abstention from actions (Unterlassungsklagen) submitted by associations of consumers and entrepreneurs are offered. These claims, in spite of the dogmatic difficulties, have been implemented in practice and proven. Special legal regulation on this issue exists in the legislation on consumer protection, competition and Antimonopoly legislation. Added to this are the more recently the claims of the unions about the withdrawal of the profits (Verbandsklagen auf Gewinnabschöpfung). The claim for recovery (Einziehungsklage), which allows associations to join several unidirectional claims of consumers in a single lawsuit, is also regulated in a special way. However, there is still no General class action in German law.

Conclusions. The author concludes that the absence of a General class action is a legal gap in German civil procedure law. This situation is criticized as insufficient to raise the issue of causing mass harm before the court. First of all, there is the absence of a collective action aimed at compensating for harm, which is regarded as alien to German law. The relevant initiatives of the European Commission in this regard contain only non-binding recommendations to States parties on the introduction of collective forms of legal protection. This topic becomes even more relevant in Germany in connection with the "diesel scandal" and the introduction of the bill on a collective model claim for recognition (Musterfeststellungsklage).
77-83 573
Abstract

The subject. The article describes preclusion in German Administrative Law.

The purpose of the paper is to confirm or disprove hypothesis that the preclusion is an integral part of the administrative and judicial practice of Germany, despite its low efficiency.

The main results and scope of their application. There are relations of between the constitutional principle of legal protection (Art. 19 Abs. of the Basic Law for the Federal Republic of Germany) and preclusion. It is shown that there are different types of preclusion in German Administrative Law, depending on the status of the administrative procedure. It can occur in the administrative process between citizen and the administrative authority and in the administrative court process. In both acts there is to differ between those who plea an infringement of their own rights and those who consider the rights of third parties.

Examples for preclusion from different areas of the law like tax or environmental law are given. Another aspect is the difference between formal and material preclusion. While formal preclusion is limited to the administrative process and does not affect the administrative court case, material preclusion effects both acts, the administrative process and the court case.

The next part concentrates on the limits set by the constitution and European law. A decision by the European Court of Justice and by the Federal constitutional court of Germany (Bundesverfassungsgericht) are presented to specify these limits. The ECJ has a stricter approach than the German constitutional court, which ruled, that preclusion does not violate the constitutional principles of legal protection and fair hearing. Nonetheless the ECJ also agreed laws that hinder abusive pleas.

Conclusions. The last part contemplates the practicability of preclusion and concludes, that the effects are relatively modest and the target of acceleration is often not attained. However, the German model of preclusion has a disciplining effect on participants in administrative procedures and the judicial process; has firmly entered German administrative and judicial practice and does not contradict the constitutional guarantee of legal protection.
84-94 556
Abstract

The subject of the paper is conciliation procedures as a phenomenon of the modern civil process.

The purpose of the article is to confirm or disprove hypothesis that the relations arising between the participants of judicial conciliation procedures are procedural legal relations. It leads to the expansion of the subject of legal regulation of civil procedural law.

The research was carried out with use of main scientific methods (analysis, induction and deduction), special (statistical) method as well as the method of interpretation of the legal acts.

The main results and scope of their application. The paper shows the theoretical development of the matter of the relationship of the concept of “conciliation procedures” and such categories as “civil procedure”, “civil procedural form”, “civil procedural legal relations”. The solution of this scientific problem has fundamental theoretical and methodological significance for substantiating the place of conciliation procedures in the civil process system. Given the trend of strengthening of the private law elements of the civil process, the author advocates the need to revise the traditional approaches of the definition of the concepts of “civil procedure” and “civil procedural legal relations”. The author supports the point of view of the possibility of the existence of not only vertical (between court and trial participants), but also horizontal (between participants in the process) procedural legal relations. From this point of view, the relations arising between the participants of judicial conciliation procedures can be attributed to procedural legal relations. The author also joins the position of those scholars who advocate a broad understanding of civil proceedings as a combination of various judicial procedures, not all of which should correspond to the signs of civil procedure form.

Conclusions. Entrusting the court with the function of reconciliation in civil and economic cases substantially changes the established concept of civil procedure as an exclusively jurisdictional process. So the subject civil procedure is not only the competitive activities of private dispute parties on proving a certain evidential composition required by the court to enforce the law and a resolute the dispute. On this basis, the author puts forward a thesis on the expansion of the object of legal regulation of civil procedural law.
95-104 480
Abstract

The subject. The article is devoted to the correlation between the level of social welfare and the degree of criminal punishment’s repressiveness.

The purpose of the article is to confirm or disprove hypothesis that improving the social welfare increases perceiving harmfulness of criminal punishment with its constant formal measure and stimulates the mitigation of criminal sanctions.

The methodology of the study includes general scientific methods (analysis, synthesis, de‐ scription) and sociological approach.

The main results and scope of their application. The author proves that society is based on reciprocity, the expression of which is the exchange of certain actions between people. The application of criminal punishment in response to the committed crime can be considered as a special case of social exchange that occurs when the crime is committed. Since crime and punishment are included in the process of social exchange, an equivalent is needed to determine their relation. The equivalent in such an exchange is the time of a human's life. Time of human life as an equivalent in social exchange fits perfectly into the logic of development of modern society, culture of consumption. A person's life time is the time when person is able to consume. The reason for the choice of such a value guide is cultural stereotypes. Time is the most important factor in our due to modern cultural values, time plays a decisive role in the formation of the price of crime. The modern system of criminal justice is focused on taking into account the lost time of human life in the application of punishment.

Improving the social welfare increases perceiving harmfulness of criminal punishment with its constant formal measure, this process stimulates the mitigation of criminal sanctions. The slowdown in the deflation of criminal punishment for violent crimes is due to a decrease in the social tolerance to violence, which is determined by the development of culture.

Conclusions. The general direction of normal development of society is deflation of criminal punishment, its weakening. The change of living standards naturally affects the severity of criminal punishment and is inversely dependent on it – the higher the quality of life, the less the severity of punishment . The practice of deprivation of liberty is an example. The study of the relationship between the use of deprivation of liberty and murder showed that the more economically developed the state, the more the number of murders correlated with the number of persons deprived of liberty. Although murderers are not the dominant group of prisoners, the more murders, the lower the cost of human life in a particular country, the more often deprivation of liberty is used in that country.
105-113 962
Abstract

The subject. The article is devoted to analysis of the crime - laundering of money or other property obtained by criminal means,-  punished by art. 174, 174.1 of the Russian Criminal Code.

The purpose of the article is to confirm or disprove hypothesis that the current Supreme Court’s official legal interpretation of the rules on the laundering of criminal incomes is too narrow; this interpretation is based on a distorted understanding of the objectives of the analyzed criminal acts.

The main results and scope of their application. According to judicial practice of the Supreme Court of the Russian Federation, firstly, when the money obtained by illicit trafficking of narcotic drugs were cashed by accused person using electronic payment systems, bank accounts or debit cards, and subsequently were spent there is no corpus delicti of money laundering. Secondly, the corpus delicti of money laundering exists in cases when money obtained by criminal means, are invested to capital stock or companies, to a bank deposit, to purchase of income-generating assets, goods or property.

Conclusions. The specificity of the situation with criminal responsibility for the legalization of criminal incomes is in the fact that it is possible to use criminal income for personal needs for the purchase of luxury goods directly and without legalization due to the lack of control over the citizens expenditures in the Russian Federation. So direct disposal and personal use of property obtained during a crime by criminal in his own needs should not be qualified under art. 174, 174.1 of the RF Criminal Code as money laundering if the purpose of concealing the criminal nature of assets was not proven. However, when making financial transactions or other transactions designed to disguise the criminal source of income, the intention of criminal to spend them on personal needs should not exclude the application of the analyzed norms of criminal law.
114-123 822
Abstract

The subject of the paper are basic principles for the responsibility for the legal costs in case of procedural complicity and consolidation of these principles in the procedural legislation.

The purpose of the article is to confirm or disprove hypothesis that the basis of principles for imposing the responsibility for the legal costs on co-plaintiff or codefendant includes substantive criterion (the nature of the disputed material relationship) and procedural criterion (the procedural status of the co-participant).

The methodological basis of the research is the dialectical method of cognition and the resulting private-scientific methods, in particular: the system-structural method and the method of comparative law.

The main results and scope of their application. Civil and commercial procedural legislation does not regulate the issue of responsibility for the legal costs in case of procedural complicity. The mechanism of such a responsibility has a significant influence on the formation of legal bodies’  position in resolving the issue from whom and in what amount the costs of the of the case consideration are to be recovered in the case of several claimants or defendants participating in the dispute.

The author proposed four principles to imposing the responsibility for the legal costs on the parties in civil and arbitration proceedings due to the content of the controversial material legal relationship. 1) The principle of equal share distribution of legal costs among the parties is the main principle for recovering legal costs in the case of procedural complicity. This principle is applicable in all cases arising from legal relations with a shared plurality of persons on the creditor’s or the debtor’s side. 2) The principle of joint collection of legal costs is applicable for disputes in which joint debtors or joint creditors take part. 3) The exclusion from the principle of equal imposing the responsibility for the legal costs is allowed by the court in case of a violation of procedural rights by one or several parties. 4) The inadmissibility of imposing the responsibility for the legal costs to the plaintiff in favor of improper co-defendant in the case when this co-defendant appeared on the court’s initiative.

It is unreasonable to use the criterion of the actual procedural behavior of the parties during the imposition the responsibility for the legal costs, because this criterion is vague and evaluative, it depends on the will of the person who claims to reimburse legal costs and on the opinion of the judge resolving this issue. The proposed principle of legal costs equal sharing among the parties will not affect the adversarial character in the civil and arbitration procedure.

Conclusions. In order to unify approaches of courts and to prevent a discretionary attitude to this issue, it is necessary to develop basic principles for imposition of responsibility for the legal costs in case of procedural complicity and consolidation of these principles in the procedural legislation. The nature of the controversial material relationship is put on the basis for the joining of the parties in the civil and commercial proceedings. This criterion should also be taken into account by the court when deciding on the court costs distribution among the parties involved in the case.

SCIENTIFIC LIFE

124-126 773
Abstract

The article presents the report of the annual conference of the International Bureau of financial documentation (IBFD) on "Taxation in the digital economy era", held on April 29‐30, 2019 in Amsterdam, the Netherlands. The most relevant topics at the 2019 conference were: distribution of tax rights between States in relation to digital business models; problems of establishing a tax competence to the tax jurisdiction; problems of taxation of digital transnational companies.



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ISSN 2542-1514 (Print)
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