THEORY AND HISTORY OF LAW ENFORCEMENT
The subject. The relevance of the article is stipulated by the gap in the study of property and the state as a consistent system.
The purpose of the article is to confirm or disprove the hypothesis that each way of organizing property such as private, mixed (corporate) and general (collective) potentially stimulates the existence of a certain state structure.
The methodology. The author uses normative structuralism. This methodology is created by the author and is based on the idea that property as the main system-forming goal of the state’s existence genetically predetermines principles of rationing its structure.
The main results of the research. Each way of organizing property in a particular social time period can acquire the quality of the main backbone in the organization structure of the state. Each way of organizing property provides proper social function: private way of organizing property provides function of social development; mixed (corporate) way provides function of social compromise (convergence); general (collective) way provides function of social security in the broadest sense. If private way of organizing property genetically programmed for the production and reproduction of social competition, mixed (corporate) and common (collective) ways are determined by the idea of its limitations and leveling. When the private way of organizing property becomes the main system-forming one it begins to fully stimulate the existence of a democratic structure of state organization. In turn, when mixed (corporate) and common (collective) ways of organizing property become the main system-forming ones, they stimulate the existence of a wide structural range of state functioning: from various regimes of democratic orientation to specific non-democratic regimes. Conclusions. The study of property as the main system-forming goal of the state existence through the normative structuralism concept allows us to conclude that that each way of organizing property stimulates the existence of a certain state structure.
The subject. The paper concentrates on problem of development constitutional nihilism in Russia.
The purpose of the article is confirmation or confutation of the hypothesis that we can distinguish four legal periods in the development of constitutional nihilism in Russia, taking into account its criteria.
The methodology of study includes historical analysis of legal literature and formal legal analysis of normative legal acts.
The main results and scope of their application. The concept of constitutional nihilism is debatable. There is no single definition of constitutional nihilism. The paper analysis main definitions Russian and foreign scientists and offer new integrating definition. The criteria of constitutional nihilism are very similar to criteria of legal nihilism but there are several exceptions. Еhe following grounds for classifying constitutional nihilism are most informative: level of prevalence; the nature of the external manifestation; the nature of denial; orientation of the nihilistic attitude, subjects of negation. At various stages of Russia's development, the main social groups among which constitutional nihilism was widespread were senior civil servants, high rank military officials and even presidents and even Emperor’s family. The object of constitutional nihilism is the denial and non-fulfillment of con-stitutional norms, non-participation in the implementation of constitutional relations. Constitutional nihilism in Russia is closely intertwined with constitutional upheaval, conspiracy, and rebellion. Constitutional nihilism is dangerous not only because it changes the structure of the state, but also because of the surge of legal nihilism among the population of the country. The sources of constitutional nihilism are periods of upheaval and other negative events that push the highest echelons of power to deliberately violate the laws.
Conclusions. There are four main period of constitutional nihilism in Russia. The table compiled by the author contains six historical periods and four legal periods. Each of them is based on criteria of constitutional nihilism. The next period of constitutional nihilism can be calculated, because most often it occurs after large-scale social upheavals, but with the arrival of a strong and influential leader of the country, constitutional nihilism disappears for a while.
THE LAW ENFORCEMENT BY PUBLIC AUTHORITIES
The subject of the article is legal regulation at the transition stage from e-government to digital government in Russia and France.
The purpose of the article is confirmation or confutation of the hypothesis that in the practice of digital interaction between administrative bodies and individuals, there are problems that must be clearly identified and can be solved using the French experience of legal regulation of the digitalization of public administration.
The methodology of the study includes comparative analysis, description as well as particular academic legal methods (interpretation of legal acts, judicial acts and state programs of digitalization in Russia and France, formal legal method).
The main results and scope of their application. Russia and France are similar because of not only belonging to the continental legal system, but also existing in the transition stage from e-government to digital. Public administration and law in both countries have to cope with the challenges of digitalization. In this regard, the experience of implementing reforms in France, which is known for its administrative and legal traditions and successes, is of particular interest to the Russian Federation. The legal support of public administration digitalization is clearly lagging behind the rapid development of digital technologies; moreover, new information solutions are significantly ahead of their legal implementation. A comparative analysis between the strategic plans of public administration, relating to digitalization of control and supervision activities in the Russian federation, and the e-government's present and future legislative framework, indicates a lack of coherence between the plans and their legislative counterparts. The initial implementation of public administration digitalization strategic plan through legislation on services is generally supported in the “Digital Public Administration” federal project through the legislation of services. At the same time, the draft of the new Federal law on state control (supervision) and municipal control in Russia offers its own information infrastructure for control and supervisory activities.
Conclusions. In order to overcome the fragmentation in the regulation of electronic interaction between private entities and public administration, the French experience of regulating the general principles of administrative procedures and guarantees of good public administration in a single act is very useful. Such an approach would also ensure compliance with the basic principles of proportionality and the prohibition of excessive formalism in the meaningful differentiation of errors and violations committed in the course of electronic communication. In addition according to French experience, it is necessary to maintain alternative ways of communication with administrative authorities including electronic ones, and consider any legislative exceptions. Also, it is necessary to define additional guarantees to citizens during interactions with technical support services; defining standards for the legal qualification of technical failures, pre-trial and judicial appeal mechanisms against automatically made decisions.
The subject. For many years, Georgia, Moldova and Russia were part of the same state, which a priori indicates the existence of a similar legal system. Despite the positive experience of the European Economic Community, the trends that the USSR faced at the end of the XX century were reversed: the former republics gained independence and started to form their own legal systems. It seems appropriate to put forward the hypothesis that the newly formed States should have used a common legal heritage and/or tried and tested foreign examples of normative acts. However, this does not seem to be the case.
Purpose of the study. The article represents an attempt to verify the aforementioned hypothesis and deals with selected provisions of the national legislation of Georgia, Moldova and Russia that, from one hand, relate to taxation and, from the other, are of general character, i.e. can be applied not only to particular cases.
Methodology. The research was carried out with the application of the formally legal interpretation of legal acts as well as the comparative analysis of Georgian, Moldovian and Russian legal literature. Structural and systemic methods are also the basis of the research,
The main results. The content of tax laws determines the chosen model of the distribution of law provisions on liability for breach of tax legislation, i.e. the fact whether such laws contain provisions on liability. The compulsory administrative stage of dispute resolution has proven to be ineffective for taxpayers, tax representatives and third parties. As for the international resolution of tax disputes there is a wide diversity of applicable means (particularly, arbitration which is not characteristic for the national order) and of specific dispute resolution mechanisms. Conclusions. Despite certain differences, the legal regulation of liability and dispute resolution in Georgia, Moldova and Russia is very similar. However, it is necessary to take into account the distinctive features arising from the limitation of the territorial legal effect of the norms of Georgia and Moldova.
The subject. Current constitutional legal relations are considered in the context of the objective legal reality of the COVID-19 pandemic.
The purpose of the article is confirmation or confutation of the hypothesis that COVID-19 pandemic impacts on the development of constitutional relations.
The methodology. The author uses the method of comparative legal analysis legal measures aiming the minimization of pandemic’s impact on society and formal legal analysis of legislative acts.
The main results of the research. It is alleged that the COVID-19 pandemic had a significant impact on the state of constitutional legal relations and revealed the most acute social and economic problems in all areas of public life.
The development of constitutional legal relations in a pandemic will lead, firstly, to a new correlation of collective and individual human rights. As a result of a pandemic, constitutional legal relations in the healthcare sector will move from the category of individual right to life and health to the category of public interest. When the health of an individual citizen is a guarantee of economic and public safety.
Secondly, the development of the institution of self-limitation of constitutional human rights. From the position of law, self-restriction of rights allows: to ensure personal and public safety of citizens; avoid introducing restrictions on constitutional rights and freedoms; eliminate redundancy of human rights restrictions.
Self-limitation of constitutional human rights is considered as conscious voluntary abstinence from the exercise of constitutional rights on the recommendation of public authorities in an emergency or other conditions close to them (high alert, self-isolation) in order to ensure public and personal safety. Self-limitation of constitutional human rights allows us to observe the constitutional balance of personal and public interests.
Thirdly, the experience of combating a pandemic has shown that if the population is able to cope with the consequences of a short-term restriction of their rights on their own, then long-term quarantine measures lead to a significant drop in incomes of the population and must be compensated by the state.
Conclusions. The COVID-19 coronavirus pandemic on the one hand triggered a new stage of constitutional legal relations, and on the other hand, like any emergency, exposed the most acute social and economic problems in society. The development of constitutional legal relations in the context of the emerging digital society and the state will not only lead to the development of new principles of constitutional development and, as a result, to constitutional legal relations of a new, digital level, but also affect such areas as the ratio of collective and individual human rights; development of the institution of self-restriction of human rights; further improvement of compensatory constitutional legal relations.
The subject. Problems of legislative regulation of information and records management in executive authorities activity are raised.
The purpose of the article is confirmation or confutation of the hypothesis that the lack of centralization of legal regulation of records management in Russian executive authorities causes problems in public governance.
The methodology includes formal-legal method, systematic approach, formal-logical method, analysis, synthesis. The main results of research. The "legal regime of records management" is the established legal procedure for documenting information and organizing work with documents. The activity of executive authorities for the production of documented information has its own specifics. If analyze the normative legal acts, it can be stated that the system of legislation that regulates the implementation of documentation operations in the structure of executive authorities of the Russian Federation needs to be modified by specifying a number of existing provisions and including new ones.
Conclusions. Despite the fact that currently there is a fairly developed regulatory framework for documentation management, a significant part of the issues related to the organization and technology of working with documents is not sufficiently regulated. In particular, this applies to the organization of electronic document management in the activities of executive authorities. The following measures could help to solve this and many other problems, and improve the state of documentation support for governance in the country: adaptation of international standards in the field of documentation maintenance of management to Russian conditions; restoration of state regulation of records management in executive authorities at all levels; creation of a federal executive authority responsible for improving, controlling, and regulating the documentation maintenance of governance; adoption of the federal law, which would fix the general principles and the most significant provisions of records management.
The subject of the research is public relations concerning the execution of the powers of the highest official of the constituent entity of the Russian Federation in the sphere of local self-government.
The aim of the research is substantiating the urgent need for legal regulation of the forms of participation of the highest official of the constituent entity of the Russian Federation in municipal legal relations, systematization of these forms and determining the limits of participation of this official in municipal legal relations.
When setting the aim of the research, the authors proceeded from the fact that the independence of local self-government defined in the Constitution of the Russian Federation is not absolute and unlimited. On the contrary, the Constitution of the Russian Federation and current federal legislation provide the possibility of participation of state authorities, including the highest official of the constituent entity of the Russian Federation, in municipal legal relations.
The research methodology includes general scientific methods, as well as some special ones, such as formal logic, structural analysis, structural-functional and interpretative methods, legal analysis, comparative analysis. The authors analyzed legal regulation in Russia and law enforcement practice
The main results of the research. Theoretical and practical approaches to legal substantiation of the necessity of participation of the highest official of the constituent entity of the Russian Federation in municipal legal relations were formulated. The authors systematized the organizational and legal forms of participation of the highest official of the constituent entity of the Russian Federation in municipal legal relations and analyzed their content. This made it possible to substantiate a set of proposals directly or indirectly aimed at improving this model of public relations within the framework of the concept of the unity of public authority enshrined in the Constitution. The main forms of participation of the highest official of the constituent entity of the Russian Federation in municipal legal relations are: promoting the development of local self-government; interaction with local self-government bodies; participation in the formation of local self-government bodies; application (participation in application) of measures of legal responsibility in respect of local self-government bodies and local self-government officials; temporary exercise of certain powers of local self-government bodies.
Conclusions. According to the special legal status of the highest official in the system of state authorities of the constituent entity of the Russian Federation, the combined potential of all organizational and legal forms of his participation in municipal legal relations undoubtedly allows to increase the effectiveness of public authority. Such participation helps to provide additional guarantees for the implementation of governmental programs for the development of local self-government on the territory of the constituent entity of the Russian Federation, to assist local self-government bodies in resolving local issues and vested certain state powers, to ensure strict observance of the law, rights and freedoms of people on the territory of municipalities.
THE LAW ENFORCEMENT IN PRIVATE LAW
The subject of research. Issues concerning the exercise of the right of shareholders to receive information are analyzed. The focus is on the issues of exemption of a joint-stock company from providing information. The development of the institute of the information provision to shareholders by joint stock companies are consistently analyzed. The main trends in the development of this institute are shown: gradually narrowing the ability of shareholders to exercise their right to receive information through such means as restriction, differentiation and exemption from providing information. Special emphasis is placed on the institute of exemption from providing information.
The purpose of the article is to show the main drawbacks of the existing model of exemption of a joint-stock company from the obligation to provide information to shareholders and to formulate directions for the development of legislation. The author's main scientific hypothesis can be summarized as follows. The Federal law «On joint-stock companies» contained an initial defect in the description of information exchange between a shareholder and a joint-stock company. The shareholder's right to information was not described, in fact, it was «embedded» in the obligation of the joint-stock company to provide information. The subsequent changes to the law resulted in a narrowing of the rights of the shareholder, practically depriving the minority shareholder of the right to information. This defect has led to significant legal uncertainty when the joint-stock company exercises its right to be exempt from providing information. This uncertainty should be eliminated, because the regulatory goals for granting joint-stock companies an exemption from the obligation to provide information to shareholders (article 92.2 of the Federal law «On joint-stock companies» that counters sanctions pressure) are absolutely correct. At the same time, some of the grounds for exemption from the obligation to provide information to shareholders (article 92.1 of the Federal law «On joint-stock companies») must either be excluded or reformulated. The author notes the complete «break» between the current regulation and the ideas about information exchange between a shareholder and a joint-stock company, that initially inspired the creation of the law on joint-stock companies. The inclusion of sanctions in the law on joint - stock companies as a factor affecting the performance by a joint-stock company of its obligation to provide information to shareholders should be fully welcomed. However, the legal and technical design of the corresponding political and legal idea cannot be considered optimal. In this part, the legislation requires a complete renovation based on the principle of balancing constitutional values and the interests of the state, majority and minority shareholders.
Description of research methodology. The research is based on a systematic analysis, as well as the interpretation of Russian legislation and doctrine.
Information about the main scientific results. The development of legislation on joint-stock companies in terms of providing information is shown. It is shown that if legislator taking into account sanctions when regulating the obligation of a joint-stock company to provide information, the goals of legislative regulation fully comply with constitutional principles, but specific legal decisions cannot be considered optimal. Conclusions. It is concluded that development of legislation on joint-stock companies has led to a significant restriction of the ability of shareholders to receive information. The author formulated the priority of regulatory goals in countering sanctions pressure and offered specific directions for improving legal regulation.
THE LAW ENFORCEMENT BY THE JUDGES
The subject of the research is the problems of constitutional law enforcement of administrative offences legislation, taking into account the prospects for its new codification.
The purpose of the article is confirmation or confutation of the hypothesis that the effectiveness of the new Code of administrative offences depends on whether the legal positions of the Constitutional Court of the Russian Federation on the principles of administrative responsibility will be taken into account when drafting it.
The authors use methods of complex analysis, synthesis, as well as formal-legal method of interpretation of Constitution, legislation on administrative offences and judicial decisions of Russian Constitutional Court.
The main results and scope of their application. The administrative torts law in Russia is expected to pass through the total review up to the grounds of its codification in close future. The article presents initial positions of that changes within basic frames produced by Russian Constitutional Court. Its case-law has already invaded into many spheres and details in respective sphere of legal rules and also prescribed a lot for their future. This case-law yet is necessarily made within its inherent range for it is ever constrained procedurally by content of actions and cases to be settled. However Russian administrative torts law is destined for reformation in new code-making in view of constitutional case-law and in order to do better with neighbor spheres of legal responsibility. Disputable matters of administrative liability, the company’s responsibility with psychical fiction on its fault (corporative thinking, wishing, desire, diligence), substantial and procedural equity etc. are described and discussed in the article as to the administrative law of torts on in its constitutional dimension.
Conclusions. The Code of administrative offences of the Russian Federation does not fully meet the legal needs of society. Work on real improvement of this code will continue, therefore, legal science should be more strongly and persistently to implement in legislative practice constitutional ideas about improvement of codification and ensuring unity of legal space of the country. In particular, it is necessary to settle the debatable aspects of tort liability, the guilt of legal entities when it is addressed by fiction to the phenomena of the psyche (thinking, goals, will, caution), the constitutional and legal foundations of justice in the field of administrative penalties, procedural enforcement of rights and freedoms, etc.
The subject. The system of principles of legal proceedings is one of the indicators of the independence of the type of legal proceedings. The article analyzes the general and distinctive features of the principles enshrined in the Russian Civil Procedure Сode and the Code of Administrative Procedure.
The purpose of the article is confirmation or confutation of the hypothesis that there is no independent system of principles of administrative proceedings that differs from the system of principles of civil proceedings.
The methodology of the study includes the formal legal method, analysis, synthesis.
The main results. All of the principles enshrined in the Code of Administrative Procedure are also enshrined in the Civil Procedure Code except some minor characteristics. So, the active role of the court, involving a number of exceptions to the usual rules of evidence, was also characteristic of the regulation of the consideration of cases arising from public legal relations in the Code of Civil Procedure. The court’s active actions to determine the subject of evidence, to recover evidence are general rules of evidence for all types of proceedings. These rules existed both before the adoption of the Code of Administrative Procedure and after it. But the specifics of the execution of judicial acts adopted in cases of administrative proceedings require special attention. A characteristic feature in the consideration and resolution of most administrative cases is the immediate execution of decisions enshrined directly in the Code of Administrative Procedure. Such a rule can be considered as a priority of immediate execution, which is a characteristic feature of administrative proceedings. The author doubts about the need for normative consolidation of the principles, as well as the need for a special list of principles of administrative legal proceedings in separate article of the procedural code.
Conclusons. The absence of an independent system of administrative procedural principles confirms the thesis that administrative proceedings cannot be considered an independent branch of law separated from civil proceedings law. However, the priority of immediate execution of a court decision is a characteristic feature (perhaps even a principle) of administrative proceedings.
THE LAW ENFORCEMENT BY BODIES OF CRIMINAL EXECUTIVE SYSTEM
The subject. The article outlines the criminological characteristics of the ilegal use of physical force and special means against persons deprived of their liberty.
The purpose of the article is confirmation or confutation of the hypothesis that the reasons for the unlawful use of force methods against convicts are related to the nature of the illegal actions of such convicts.
The methodological base of the study was an analysis of 15 cases of unlawful use of physical force and special means by employees of the correctional facilities against imprisoned convicts committed in the period from 2016 to 2019. The author analyzed 12 sentences on bringing employees of the correctional facilities to criminal responsibility for the unlawful use of these forceful methods, as well as a survey of about 190 employees serving in various positions in the correctional facilities where unlawful use of force was carried out. In addition the scientific works of other authors that affect this issue were studied.
The main results, scope of application. The criminological characteristics of the illegal use of physical force and special means by employees of the correctional facilities against imprisoned persons are presented. The article includes a description of such victims; a description of the circumstances of use of force; a description of the employees of the correctional facilities who allowed unlawful use of force; the reasons and conditions that contribute to the implementation of this use. Based on the above, some measures are proposed that contribute to the optimal solution of the issue of prevention of the unlawful use of force in the Russian penitentiary practice.
Conclusions. The unlawful use of physical forces and special means was carried out against convicts who have destructive moral and psychological qualities, are characterized by a high degree of criminal infection, express a negative attitude towards order and conditions of serving sentences and do not obey the legal requirements of correctional staff. A generalization of the personal characteristics of employees who unlawfully use physical force and (or) special means indicating that they are characterized by positive psychological qualities in general. They strive to be guided by the regulations governing the professional activities of the penal system officer and are positively active in fulfilling their duties. The most probable reasons for the unlawful use of forceful methods of influence against convicts are related to the nature of the unlawful actions of such convicts, provocations, negative features of service due to the specifics of places of deprivation of liberty. Measures taken to prevent the occurrence of negative phenomena in domestic politics can have a positive impact on improving the functioning of the penal correction system, which is in line with legal regulations of a national and international nature.
THE LAW ENFORCEMENT BY THE BODIES OF PRELIMINARY INVESTIGATION AND INQUIRY
The subject. The subject of the study is the relationship between the methodology of the theory of forensic science and law enforcement issues. The nature of the forensic science and the paradigms of theory are subject to significant changes today. Philosophical and scientific postulates revealed differences in post-non-classical science. The author substantiates the need for the evolution of some essential criteria of scientific knowledge in forensic science. The article deals with the concepts of private forensic theories and the structure of the general theory of forensics. It shows the impact of scientific research on the needs of practice, the ambiguous nature of the preparation of practical recommendations, the complex path from basic forensic research to the integration of investigative methods in investigative practice.
The purpose of the article is to confirm or disprove the hypothesis that changing the general forensic paradigms should lead to changes in the method of detecting and using traces of crimes in criminal proceedings.
The methodology of the research includes analysis, synthesis, deduction as well as private scientific methods of forensics, in particular, the doctrine of traces. The main results of the research. Any scientific research, especially in the field of forensics, is aimed at solving practical problems if they are unsolvable by existing methods and recommendations. Sometimes the problem, especially at the initial stage of its study, is difficult to be identified clearly. First of all, you need to prove that it exists, then define it in general, and only then look for approaches, methods of scientific research of its causes and essence, and concentrate on finding a solution. In forensic science, this is expressed in the identification of inefficiency in solving the problems of investigating crimes using existing scientific recommendations. One of the essential elements of private forensic theories is their practical implementation. Practical orientation in forensics implies the availability of knowledge that is potentially suitable for the development of practical recommendations on methods, techniques for detecting traces of crime and related events, means of collecting evidence, the possibilities of using the extracted and processed information for the purposes of criminal proceedings. The relevance of the results is determined by the significance of the scientifically proven tasks, questions and problems. For investigative practice, it is not the status of theoretical recommendations that is important, but their qualitative content.
Conclusions. Relevance in practice does not always determine the scientific significance of theoretical research in forensic science. The fundamental nature of scientific knowledge and overcoming outdated paradigms require time and at a certain stage may not be in demand in practice. However, changes in scientific views are strategically necessary for law enforcement and should be reflected in recommendations for forensic practitioners.
ISSN 2658-4050 (Online)