THEORY AND HISTORY OF LAW ENFORCEMENT
The subject of the research is the categories “the spirit of the law” and “the letter of the law” in their regulatory sense.
The purpose of the research is to confirm or disprove hypothesis that the concept of “the spirit of the law” fundamentally impacts the methodology of legal research, legal con-sciousness and the mechanism of legal regulation.
The methodology for researching the spirit of the law presupposes an adequate selection of means of knowledge. It is impossible to study the spirit of the law with the tools of ma-terialism or economic determinism. The spiritual-moral, axiological, metaphysical, systemic methods and the method of synthesis are preferred for the study of the spirit of the law. The legal system of society ceases to meet the elementary requirements of the formation of a person's legal consciousness, his improvement and spiritual health when the spirit of the law is denied. It is generally impossible to understand how law functions and achieves a regulatory effect using the dogmatic, positivist approach to law as a dominant method of cognition.
The main results, scope of application. The problem of the operation of the spirit of the law is one of the ignored problems of legal practice. If the legal act is at odds with the spirit of the law, the law enforcer faces a difficult choice: either morality or law. This dilemma is fraught with serious conflicts both in the mental, psychological sphere of the law enforce-ment officer himself, and between all participants in the legal process. Every person has an internal imbalance if he makes decisions and performs actions that are contrary to his con-science. Jurisprudence, which adequately perceives the subordination between the spirit of the law and the letter of the law, warns against the temptation to consider law as a sphere independent of spiritual absolutes. The current law is not exactly what is set out in the texts of regulatory acts. Distinguishing between the spirit of the law and the letter of the law, therefore, requires special types of interpretation of texts (broad, restrictive), as well as analogies of legislation and analogies of law.
The subject. The authors analyze the process and results of 30 years of reforming judicial activity in contemporary Russia, formulate and substantiate the conceptual foundations of promising transformations and specific proposals for continuing the reform, increasing the efficiency of the judicial system and protecting human rights, freedoms and legitimate in-terests.
The purpose is to confirm or disprove hypothesis that the Russian judicial reform needs to be adjusted in order to remain the most important factor in building the rule of law and civil society.
The research methodology includes the methods of analysis and synthesis, historical, com-parative legal and formal legal methods.
The main results, scope of application. The court is one of the most democratic and civilized tools for resolving social conflicts and protecting human interests. Judicial reform is a con-ceptually formed, cardinal and progressive transformation carried out in the historical pe-riod in order to organize the optimal model of the judicial system and achieve maximum efficiency of its functioning to protect the rights and freedoms of the individual, the inter-ests of society and the state. The Russian court was transformed, became the real judiciary power and took its place in the state mechanism during the reform period. The judicial sys-tem was built on new principles, procedural legislation was updated, a number of other measures were taken to improve the status of the court and its role in society. It is necessary to generalize the existing practice and regulate all problematic aspects of the formation of the judicial corps at the legislative level. We need to make this process clear and transpar-ent. Justice as a social and legal value and a significant international goal of sustainable development should be implemented in Russian domestic policy and strategic projects. The strategy and tactics of digital transformation of judicial activity, more active introduction of modern tools in it, while ensuring human rights and freedoms in this process, are particu-larly in demand in the context of the coronavirus pandemic,
The conclusion is made that judicial reform is the most important factor in building the rule of law and civil society. However, it has not been completed and its potential for social influence has not been exhausted. Therefore, conceptual foundations and specific proposals for further transformations, increasing the efficiency of the judicial system in order to protect human rights, freedoms and legitimate interests have been formulated and substantiated.
The subject of research is the concept of practical ethics by Anatoly F. Koni who was an outstanding Russian lawyer in the late 19th – beginning of 20th centuries. Particular attention is paid to his ethical research in the article. The interest in this area is not accidental. The principles of professional ethics formulated by Koni have become largely a model for Russian lawyers.
The purpose of the article is to identify the stages of the formation of Koni’s ethical theory, its main elements and sources, which made it possible to reconstruct the ideas of the famous lawyer.
As the main research methods the authors applied the problem-chronological approach and the systemic approach, considering Koni's ethics as an emerging theory, which turned into a complete concept in the 1920s. The structure of the ethical concept was outlined by Koni in 1919 in the Program "Ethics of Cohabitation".
The main results, scope of application. It was revealed that for Koni issues of legal ethics were only part of his colossal work on ethics. He has been developing ethical themes since the 1880s. He formed the foundations of the theory, developed the main types of ethics at the beginning of the twentieth century, and the idea crystallized in the 1920s. In particular, he formulated the types of ethics: public order, financial, literary, public events, medical, conscience, national, personal behavior, etc. After going through three successive stages in the course of the study Koni developed the foundations of practical ethics, which could serve as a model for creating relations in a new society as he assumed. Koni chose ethics as the object of his scientific research. He made great efforts to develop his deontology, which we will not find any analogues of. He contributed to the philosophy and philosophy of law. He summarized all his works on deontology in the work "Ethics of the Cohabitation", which was prepared in 1927, but have never been published.
Conclusions. Koni not only collected moments of crisis in contemporary ethical manifestations, analyzed the works of the main deontologists, analyzed in detail the types of ethics (some of which he formulated for the first time in science), but also formed a harmonious practical ethics of human personal behavior. At the same time Koni assumed such a development of a sensitive personality that would be able to take into account the smallest men-tal characteristics of other people and behave tactfully as much as possible. He returned to ethical issues in numerous works over and over again whether he wrote about social ills, about psychology, about expertise. He saw the main causes of deformations in the destruction of ethical principles. "Moral perversions" threatened the very existence of the state. He perceived the fall of Russia in 1917 as a logical completion of the disintegration of ethics. Koni saw a future salvation in the revival of Russia. His ethical ideal was Christian in nature in many ways, although Koni himself almost never connected ethics with religion in his works. Here he acted as a Kantian, as a supporter of the categorical imperative.
The subject of this article is the norms of contemporary Russian law. The purpose of the article is the author's vision of the problem concerning the structure of the norms of contemporary Russian law. The following tasks were solved to achieve this goal: 1) to show the importance of the structure of the rule of law; 2) to analyze the arguments of both supporters and opponents of the three-tier structure of the logical rule of law; 3) substantiate the two-tier structure of prescriptive norms; 4) determine the status of specialized legal norms and their types; 5) to substantiate the author's vision of specialized legal norms.
The author uses a system of methods such as: general philosophical (dialectical-materialistic), general scientific (analysis and synthesis, induction and deduction, etc.), special (philological, etc.), private scientific (formal-dogmatic, interpretation, etc.) methods. Conclusions. The author is not a supporter of the three-tier structure of the logical norm of law. It seems that theory and legal practice should focus on the structure of norms-prescriptions (regulatory and protective), respectively highlighting the hypothesis and disposition and the hypothesis and sanction. As for the specialized norms of law (declarative, norm-principles, definitive, operational), they include such structural components as a supposed hypothesis and a real disposition. Conflict norms as a kind of specialized norms include a real hypothesis and a real disposition.
The subject. The article analyzes the phenomenon of the COVID-19 pandemic and its impact on the human rights and freedoms. It emphasizes that some information about the corona-virus infection was available several decades ago. At the same time, the specialists unfortunately weren’t ready for the possible mutation of this virus, which has now exposed a large-scales threat to the population of the whole world.
The purpose of the article is to identify the problems of the implementation of the citizens’ rights and offer proposals for improving the Russian and Belarusian legislation and the practice of its implementation in the field of combating the coronavirus infection.
The methodology. The authors take into account the practice of the European Court of Hu-man Rights and the constitutional control bodies of Russia and foreign countries. They make a conclusion on the legitimacy and necessity of the taken restrictive measures. The article is based on the dialectical method, as well as at the logical, historical, systemic methods. Methods of analysis and synthesis were of particular importance. The authors have applied the functional method to research the main areas for ensuring a reasonable balance of private (individual) and public interests.
The main results, scope of application. Modern constitutions, including the Russian and the Belarusian ones, contains the most important principles of the rule of law, enshrine human rights and freedoms as the highest value. Human rights and freedoms continue to be are at the epicenter of many disputes and discussions. The modern system of rights and freedoms is constantly developing; the legal status of a person receives new content as the human civilization develops and the paradigm of values changes. For example, we see how information technology and other advances affect the scope of rights and freedoms. Rights, freedoms and obligations are interconnected and interdependent. All groups of rights are currently in the field of view of international organizations. The problem of equality, the elimination of discrimination, the restoration of violated rights, the assessment of the limits of the state's invasion in human rights and freedoms continues to be relevant nowadays.
The article focuses on the international and national standards for the possible restriction of rights and freedoms in order to protect the health of the population. The international law rules on human rights oblige states to take measures to protect health and provide medical assistance to those in need.
Conclusions. One of the constant problems is the relationship between the rights of a particular person and the rights of other persons, group or society as a whole and the state. At the same time, the coronavirus pandemic forced the public authorities to determine the balance of the priority of human rights and freedoms or the protection of the life and health of citizens. The coronavirus pandemic is the factor that affects the content of the legal regulation of relations in the field of human rights and freedoms. The measures taken by the state affect the right to health protection, freedom of movement, the right to education, right to have sport activity, right to work, freedom of assembly and others.
The article proposes to inform the population more fully about the measures taken by the state and society in this direction, about the wider use of information technologies, about the possible responsibility for non-compliance with the requirements for the use of per-sonal protective equipment and the self-isolation regime.
The subject. The world faced a coronavirus pandemic in 2020. Many states, including Russia, adopted harsh measures that were largely based on restricting human rights and freedoms in an effort to counter pandemic spread. Inter-State borders were closed, restrictions were imposed on the operation of public catering organizations and the holding of sports and entertainment events was suspended, some of the fundamental rights were heavily con-strained. This resulted in the growth of public disaffection, falling of incomes and a worsening of the overall economic environment. As a result, the problem of the permissibility of restrictions of human rights and freedoms for the sake of public security, as well as the requirements for such restrictions, had once again become relevant.
The purpose of the article is, firstly, to learn what is the concept of “freedom” nowadays, to define the conditions and principles of application the permissible restrictions on human rights and freedoms, their aims and purpose. The authors dare to analyze the laws and regulations establishing the possibility of restricting human rights and freedoms and to give a description of the procedure for imposing restrictions in situations of greater danger.
The methodology of research includes formal legal interpretation of legal acts, systemic approach to cognition of social relations, analysis and synthesis.
The main results, scope of application. The definition and concept of freedom, its limited character, the regulation of the possibility of its restriction for the purpose of protecting society have been studied and defined. Russian and international legislation on the restriction of human rights and freedoms has been analyzed. The principles on the basis of which it is permissible to restrict human rights and freedoms have been identified. The principle of the inadmissibility of restrictions on all rights and freedoms; the adequacy of the imposed restrictive measures to the existing threat; the principle of economic efficiency; the principle of detailed regulation of the imposed restrictions are among them. It has been found out that there is a threat of establishing tyranny with arbitrary restrictions on human rights and freedoms.
Conclusions. In today’s world, the restriction of human rights and freedoms should be considered as a necessary measure to ensure the security of the individuals and of society as a whole, especially in the situations of a great danger to public interests. At the same time, the imposing restrictions should be strictly regulated and, moreover, possible abuses should be avoided in order to minimize the negative consequences and avoid establishing totalitarian regime.
THE LAW ENFORCEMENT BY PUBLIC AUTHORITIES
The subject. The evolution of regulation of prosecutor’s activity in Russian Constitution as well as the role of Prosecutor's Office in provision of national security and integrity are being considered.
The purpose of the article is to confirm or disprove hypothesis that the preservation of the Prosecutor's Office made it possible to prevent the destruction of the Russian Federation and protect the country's security from significant threats.
The methodology. The authors use a dialectical method as well as analysis and synthesis. An important role is given to formal legal interpretation of Russian Constitution and legal acts.
The main results, scope of application. The question of who saved the Russian Prosecutor's Office from the attempt to liquidate it in the autumn of 1993 is being covered in detail. There was not even a mention of the Prosecutor's Office in the draft Constitution of the Russian Federation. The Prosecutor's Office was supposed to be replaced by the institution of authorized representatives of the President in the constituent entities of the Russian Federation. Chapter 7 of the Russian Constitution was called "Judicial Power" until 2014, and it lacked the word "prosecutor's office", which caused a lot of bewilderment in the scientific and educational literature and turned the content of Chapter 7 into a kind of mystery. The article reveals the role of Alexander I. Kazannik in preserving the Russian Prosecutor's Office. The authors of the article name the main threats to state security: duplication of the powers of the federal government and the lack of effective legal guarantees of their responsibility, asymmetry of Russian federalism. Asymmetry leads to uneven implementation of citizens' rights and freedoms and distrust of power. The criteria for assessing the scientific activities of universities established in 2013 also pose a threat to state security.
Conclusions. President Vladimir Putin has preserved the integrity and sovereignty of Russia, enforced the principle of the supremacy of federal law and strengthens Russia's security with the help of the Prosecutor's Office. The authors propose measures to strengthen Russia's security: (1) introduce a competitive selection procedure for the post of Prosecutor General of the Russian Federation with the participation of civil society institutions, which would have the right to present candidates to the Federation Council; (2) adopt a federal law on the Administration of the President of the Russian Federation to avoid duplication of powers with the Russian Government and other authorities; (3) change the criteria for assessing the scientific activity of universities, established by the Ministry of Science of the Russian Federation.
The subject of the article. The article represents a research of conceptual properties and issues of applying reservations and declarations to the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting, developed in frames of implementing the OECD/G20 Action Plan on Base Erosion and Profit Shifting (BEPS). The Multilateral Tax Convention modifies the application of agreements for avoiding double taxation, that are covered by its action. Since January 1, 2021 it has been applied to 34 agreements for avoiding double taxation between the Russian Federation and such countries as the UK, Canada, Latvia, Malta, the Netherlands and France. The Multilateral Tax Convention provides for updating bilateral tax treaties – whether they were developed upon the OECD Model Tax Convention or the UN Model Tax convention. The Convention retains a great degree of flexibility in relation to the implementation of its provisions – especially by the means of reservations, made by the countries.
The purpose of the article is to identify the main characteristics of applying reservations and declarations in international tax law.
The methodology.The study is based on empirical methods of comparison and description, theoretical methods of formal and dialectical logic.
The main results. Reservations have played a minor role in international taxation until now – usually they reflected disagreement, expressed by an OECD member country with the provisions of the OECD Model Tax Convention or its Official commentary. Reservations were formulated in relation to a non-binding (model) document and their importance was limited. Such reservations cannot be associated with declarations, made in relation to legally binding documents like the Multilateral Tax Convention. Analyzing the general points of scientific dispute upon the mentioned range of issues, the author argues with researchers who deem that the structure of reservations to the Multilateral Tax Convention doesn’t correspond with the provisions over reservations in the Vienna Convention on the Law of Treaties, 1969 and thus recognize those reservations as “legal hybrids”.
Conclusions. The structure of reservations to the International Tax Convention is deter-mined by the nature of double taxation agreements. The model lawmaking principle (the use of the OECD Model Tax Convention) allowed developing “umbrella” architecture of relationships between the provisions of the Multilateral Tax Convention and the norms of double taxation agreements. The article categorizes types of reservations as reservations of general nature and treaty-specific reservations. The article also considers the specific properties of reservations made in relation to the provisions of the Convention, which com-pose a minimal standard.
The subject of the article is the research of public procurement in the context of budget expenditures efficiency.
The purpose of the article is to confirm or disprove hypothesis that public procurement planning is the basis of a strategic relationship with the budget process. Their symbiosis can minimize any negative manifestations of a financial, economic and socio-political nature, including the consequences of crisis situations such as a pandemic.
The methodology. The authors analyze many Russian and western scientific articles and monographs from the point of view of the budget process and planning of public procurement.
The main results, scope of application. Planning of public procurement should be considered not as a separate need of one specific customer or a separate group of customers, but as a set of public consumption of all possible and necessary resources. The opposite approach will inevitably lead to additional budget costs for the elimination of consequences (natural, technological, etc.), associated, first of all, with the lack of a proper and clear understanding of the essence of planning public procurement and public demand for goods, works, services). Proper and carefully balanced procurement planning for all public needs not only ensures the immunity of the budget process for the current and subsequent periods, but also constitutes the basis for the prospective rational use of renewable and non-renewable resources, both internal (national) and external (foreign). This article has significant scientific and practical value. The study focuses on the key problem of public procurement in Russia-the lack of interaction between procurement planning and the budget process, pointing to the identified shortcomings of legal regulation that do not allow to quickly adapt to situational changes from outside. It is proposed to consider the introduction of strategic procurement planning for 5-10 years, which will not only determine the basis for financing public procurement from the budget, but also predict the revenues of the relevant budget, more accurately and correctly prioritize funding needs.
The findings of the study allowed the authors to formulate proposals and recommendations. Consideration of the planning of public procurement, taking into account the budgetary process, will make it possible to develop recommendations in terms of adjusting certain norms of Law No. 44-FZ, which would allow the most efficient use of budget funds, both planned in advance and urgent purchases.
Conclusions. A global crisis reveals the most pressing problems of governance of any state. The crisis obliges the government of any country to promptly analyze and rebuild the regulatory framework for effective financial, economic, social and political management. De-spite numerous reforms the budget process in the Russian Federation has retained significant bureaucratic costs that do not allow for rapid delivery of budget funds to each customer. The urgent need for rapid reallocation of budget funds for additional and priority purchases has shown the imperfection of the legal regulation of public procurement planning, which should be radically restructured. Since public procurement planning as an integral part of budget expenditure is not actually related to its revenues, such planning should be carried out based on the customer's needs for goods, works, and services for a longer period, which will allow a more meaningful and responsible approach to the issue of effective budget spending and overall resource consumption. Digital technologies in public procurement planning allow you to quickly compare all items of the plan with those planned and completed earlier in order to avoid duplication (unjustified repetition) of a similar purchase. Planning of budget purchases is not only an effective expenditure of budget funds, but also an efficient (lean) consumption of resources, including non-renewable ones.
The subject. The author examines the criteria of creation of service permanent establishment (PE) in Russia and possibility of creation of this type of PE in providing R&D services in Russia by foreign specialists.
The aim of the paper is to confirm or refute the hypothesis that the provision of R&D ser-vices by foreign specialists in Russia creates a service permanent establishment. The author also analyzes the current science legislation of Russia and suggests ways of its improvement to reduce tax risks.
The methodology. The author used general scientific dialectical method of scientific knowledge, the formal-logical method, in particular analysis and synthesis in examining criteria of creation of service permanent establishment. The author also uses a systematic method and a simulation method to establish the relationship between the science legislation and tax legislation.
The main results. The activity of foreign scientific specialists in Russia potentially originates the risk of creation of a permanent establishment on the territory of the Russia for the foreign organization, which sent that specialist to provide the relevant services. However, when comparing the international and domestic law enforcement approach, the author revealed a feature of the latter, which consists in applying the criteria of the physical type of permanent establishment to a service permanent establishment, which in turn gives rise to legal uncertainty and the risk of double taxation in some situations. There is no relevant judicial practice on the topic. Budgetary scientific organizations have a certain priority over commercial scientific organizations when involving foreign specialists in R&D activities in Russia.
Conclusions. The criteria for the creation of service permanent establishment (including the provision of R&D services) in domestic practice have an ambiguous, evaluative interpretation. However, the risks of discretion in assessing the criteria for creation of service permanent establishment can be eliminated by clarifying these criteria in the Tax Code of the Russian Federation. Amendments to the science legislation can also eliminate above and fore-going risks.
The subject. The key characteristics of risks and threats in state control context are researched comprehensively.
The purpose of the article is to confirm or disprove hypothesis that threats and risks should be the basis for determining the content of other elements of the system of state control and supervision.
The methodology. The authors use the formal legal interpretation of normative acts, as well as systemic approach and analysis of philosophical literature, concepts of the security the-ory and monographs in different branches of law.
The main results, scope of application. The relationship between the concepts of "threats" and "risks" is determined, and their author's definitions are proposed. A threat in control and supervisory activities is a set of events or acts that cause or are capable of causing damage to socially significant values. Risks are such threats to socially significant values, which are expressed in the actions of participants of social relations. Risks are associated with an incorrect assessment of the objective situation and can lead to harm with varying degrees of probability. The categories "risk" (in the negative aspect) and "threat" highlight two facets of the same entity. When describing malicious phenomena as threats, attention is focused on the possibility of causing harm as an integral attribute of such phenomena. Understanding them as risks allows us to give a quantitative description of the probability of occurrence of harmful consequences of the impact of a particular act on the protected object. Problems are identified in the reflection of the essential characteristics of risks and threats in the current legislation on state control (supervision) and in the new Federal Law of 31.07.2020 No. 248-FZ "On State Control (Supervision) and Municipal Control in the Russian Federation". The analysis of the Russian legislation shows that there is no comprehensive approach to fixing the essential characteristics of threats and risks, which are aimed at minimizing the control and supervisory activities. New Russian Law No. 248-FZ of 31.07.2020 also demonstrates that the legislator does not have a systematic approach to identifying risks and other threats and therefore effective measures to counteract their implementation through control and supervisory activities are not determined. The scientific substantiation of the characteristics of risks and threats in general allows both to enrich the theory of public control, and to improve the legislation on control and supervisory activities, as well as to increase the effectiveness of the protection of public interests in the process of its application.
Conclusions. The key nature of threats and risks for determining other elements of the sys-tem of state control and supervision is substantiated The use of the term “threat" is preferred because of its more universal nature. Threats determines both the goals and principles of control and supervisory activities in any area, as well as its forms and methods.
The subject. The article is devoted to the legal analysis of the legitimacy of the activities of public authorities and the process of their legitimation in the Russian Federation, as well as other problems of national democracy. The legal understanding of the concept of "people" as the only source of power and the bearer of sovereignty is considered, a distinction is made between these properties.
The purpose of the article is to identify its essential features the category of legitimacy, identify problems related to the reflection of the political will of Russian citizens in the organization and activities of state authorities and local self-government. The purpose of the article is to substantiate also the differences in the characteristics of the people as the only source of power and the bearer of sovereignty, which has a significant impact on the processes of legitimation of public authorities in the Russian Federation.
The research methodology consists of general scientific methods (analysis, synthesis, dialectics) and legal methods (formal-logical, comparative-legal, historical-legal, forecasting method).
The main results and their area of application. The author considers legitimacy not only as the consent of the people with the normative legal acts adopted by public authorities, but also as universal approval and recognition of their organizational activities, expressed by citizens through the institutions of direct democracy. The legitimacy of public authority is an attribute of a constitutional state with a social orientation. The article notes a few features characteristic of the domestic process of legitimizing public authority. The procedure for the formation of the Federation Council of the Federal Assembly, in which Russian citizens do not participate directly, starting from 1995 to the present. The cancellation and return of direct elections of heads of constituent entities of the Russian Federation, the impossibility of electing the heads of municipalities directly by the population (in many cases). A complicated procedure for the implementation of active and passive electoral rights in the Russian Federation, expressed in the establishment of several formal require ments. Constant changes in electoral legislation before election campaigns are among these characteristics.
Conclusions. The results of research are summarized and conclusions are drawn about the current state of legitimacy in the Russian Federation. A few measures are proposed to improve the process of legitimizing public authority. The author proposes to distinguish between the legal characteristics of the people as the bearer of sovereignty, understanding by it all Russian citizens and as the only source of power, which is formed by the voters.
The subject. The article is devoted to constitutional conflict about distrust to the Government of the Russian Federation and constitutional norms that regulated such conflict and were changed during the constitutional reform in 2020. The author analyzes such transformation in legal regulation and try to find causes for this changes. And also the author provides a constitutional-conflict diagnostic of new constitutional norms to identify conflictogens.
Purposes of the paper are to find a legal reasons for transformation of constitutional norms about distrust to the Russian Government and to prevent an appearance in future long term of serious constitutional conflict by finding its conflictogens.
The methodology of the study includes a new methodology of a constitutional legal science – constitutional-conflict diagnostic. The constitutional-conflict diagnostic is a system of consistently applied scientific methods, legal principles and presumptions aimed at obtaining information about the constitutional conflict and the constitutional-legal methods of its prevention and resolution. The constitutional-conflict diagnostic includes group of methods: dialectical and systemic methods, as well as structural and functional method; a group of private-scientific methods (historical, methods of formal logic: analysis, comparison). The formal-legal, comparative legal methods and a method of modeling of legal consequences are also used.
The main results and scope of their application. The constitutional reform of 2020 year complicated the procedure for resolving the constitutional conflict of trust to the government and introduced a subject-status misbalance in part 4 of Article 117 of the Russian Constitution, expressed in the unmotivated and unjustified possibility of the president to had no activities for resolving such conflict.
Legal modeling of the simultaneous implementation of the provisions of parts 3 and 4 of Article 117 of the Russian Constitution revealed the possibility of alternating procedures for expressing trust and denying in confidence to the government, which was absent before the constitutional reform.
From a formal legal point of view and a conflictological approach, the amendments to Part 4 of Article 117 of the Constitution of the Russian Federation cannot be explained, and they are a certain «opportunistic maneuver» to the Russian Parliament.
The subject. The article examines the refraction of the doctrine of legal procedure in relation to the activities of parliament.
The purpose of the article is to confirm or disprove hypothesis that parliamentary procedure is the kind of legal procedure
The methodology. The author uses formal legal interpretation of Russian legislative acts and decisions of Russian Constitutional Court and European Court of Human Rights as well as such general scientific methods as analysis, synthesis, systemic approach
The main results, scope of application. The author draws attention to the fact that at the present stage of the development of the theory of law, it can be stated that procedural social relations have developed in the parliamentary bureaucracy, which are not only regulated, but must also be regulated by procedural norms, which confirms the conclusions of the authors of a "broad" approach to the theory of legal process. However, there will be a window of opportunity for the supporters of the "narrow" approach in the parliamentary process. In accordance with the conclusions of the ECHR and the Constitutional Court of the Russian Federation, which have prerequisites even in the works of Montesquieu, the parliament, as a body with jurisdictional powers, must comply with the appropriate procedure in their implementation. Hence, the author deduces the tasks of further improving both the doctrine of parliamentary procedure and the need for clear and competent regulation of legal procedures in parliament, the ultimate goal of which is to observe and implement the rights, freedoms and constitutional guarantees of participants in the parliamentary process.
Conclusions. The procedures governing the work of the Parliament and its organs are legal procedures in the broad sense of the term. This does not negate the understanding that the legal procedures of the parliament, corresponding to its quasi-judicial powers, has the nature of the jurisdictional process. This conclusion is consistently confirmed in the jurisprudence of the European Court of Human Rights and the Constitutional Court of the Russian Federation.
THE LAW ENFORCEMENT BY THE JUDGES
The subject of the research is the public relations governing the serving of the sentence by the convicted person and the exercise of the right to parole.
The purpose of the article is to determine the content and formulate proposals for improving the criminal legislation and the practice of its application on the basis of established approaches to the interpretation of the conditions for the application of parole, provided for in Art. 79 of the Criminal Code of the Russian Federation. The hypothesis of the research is the legislative wording of the conditions for the application of parole, provided for by Russian Criminal Code (paragraph "g" of Part 3 of Art. 79) – “at least three-quarters of the sentence imposed for crimes against the sexual inviolability of minors, as well as for grave and especially grave crimes related to the illegal circulation of narcotic drugs, psychotropic substances and their precursors” – do not have a sufficient degree of specificity and does not allow to unambiguously determine the moment of emergence of the right to parole.
The methodology. General scientific methods (analysis, synthesis, induction, deduction) as well as private scientific methods of criminal law research (formal-legal and linguistic interpretation of legal acts) – were used. The authors propose to correct the provisions of the Russian Criminal Code and to consolidate the content of the concepts used in the criminal law on the basis of the analysis of various normative legal acts, acts of judicial interpretation and provisions of the doctrine of criminal law.
The main scientific results. During the analysis of the provisions of Part 3 of Art. 79 of the Russian Criminal Code, regulating the conditions for the application of parole, the authors reveal a number of inaccuracies in the provisions of the criminal law. Such inaccuracies do not allow to unambiguously determine the grounds for parole of persons who have com-mitted crimes against the sexual integrity of minors, as well as persons who have committed grave and especially grave crimes connected with the illegal circulation of narcotic drugs, psychotropic substances and their precursors. The content of the prescriptions of clause "g" of Part 3 of Art. 79 of the Russian Criminal Code does not have an exact legislative basis, and the interpretation given by the judicial authorities does not always allow us to exclude the uncertainty of the concepts used.
Conclusions. The contradictions were identified by the authors related to the inaccuracy of the legislative prescriptions used in determining some conditions for the application of pa-role. The authors conclude the need to amend the criminal law and formulated proposals that clarify the wording of Art. 79 of the Russian Criminal Code. Such corrections will eliminate the duality of understanding of certain conditions of parole and increase the effectiveness of law enforcement practice in this area.
The subject of study is the criminal-legal basis for an expedited procedure for adopting a court ruling when the accused person agrees with the charge. These issues are relevant, since in July 2020 the substantive legal basis of the expedited procedure in Russia was changed and now this procedure can only be applied in criminal cases of small and medium gravity.
The aim of this work is to study the substantive legal basis of an expedited procedure of litigation from the point of view of the changes were made to it. The author expresses the thesis that the legislators did not quite reasonably link criminal-legal grounds of the expedited procedure with the system of categories of crimes.
The methodology. The author used general scientific methods (dialectical, historical, methods of formal logic, system analysis) as well as method of formal legal interpretation of Russian Criminal Code and judicial decisions of Russian courts.
The main results, scope of application. The criminal and legal basis of certain criminal procedure is a package of criminal law standards, for the implementation of which a certain criminal and procedural form is intended. The parameters of the substantive basis of criminal proceedings are set with the signs that shall be indicated in the Code of Criminal Procedure and may change. It directly refers to the expedited procedure for adopting a court ruling, by Chapter 40 of the Russian Criminal Procedure Code. Initially, it was assumed that the application of this procedure is permissible in criminal cases concerning crimes the punishment for which does not exceed 5 years imprisonment in accordance with the Russian Criminal Code. The expedited court proceedings began to be applied in criminal cases concerning crimes, the punishment for which does not exceed 10 years imprisonment in accordance with the Russian Criminal Code, since 2003. The Russian Supreme Court made an attempt to reduce the application of court proceedings provided by Chapter 40 of the Russian Criminal Procedure Code in 2019. It turned out to be successful. Legislators have changed the basic criterion that determines the substantive basis for an expedited procedure for adopting a court ruling. Now the system of categories of crimes is this basis. The system of categories of crimes presented in Article 15 of the Russian Criminal Code is not stable enough and is based on a set of provisions of this Code, but the sanctions for many crimes are not scientifically and practically grounded in this Code. In addition, the classification of crimes enshrined in Article 15 of the Russian Criminal Code is based on such a criterion as the nature and degree of public danger of the crime. These categories are among the most complex in the science of criminal law.
Conclusions. The use of categories of crimes as a criterion for determining the criminal legal basis of the expedited procedure for making a court decision significantly complicates the application of the expedited procedure.
THE LAW ENFORCEMENT IN PRIVATE LAW
The subject of research. The issue of reliability (unreliability) of information (data) included in the Unified State Register of Legal Entities has increased after the amendments made to the Russian Civil Code in 2013 and to the Russian legislation on state registration of legal entities in 2015. The legislation, introducing the principle of public reliability of information included in the Unified State Register of Legal Entities does not clearly define what is meant by such reliability. Accordingly, the question arises about what is meant by “unreliability” of information. Although legal norms contain the concept of “error”; the legislation does not contain a single legal regime of “error”. This is expressed in the presence of several independent cases described in the legislation, including, among other things, an independent procedure for correcting an error. It is also not clear how the presence of an “error” correlates with the requirements for the reliability of the data of the Unified State Register of Legal Entities. The author shows the evolution of the concepts of “error” and “technical error” in the legislation on state registration of legal entities, as well as ways to eliminate it for the first time in the Russian doctrine.
The purpose of the article is to: (a) analyze the current regulation and qualify various cases of “errors” in the information included in the Unified State Register of Legal Entities; (b) specify the objectives of regulation in each identified case of “errors”; (c) identify the main contradictions in the regulation; (d) form a new model of the reliability of the information included in the Unified State Register of Legal Entities and specific legal decisions based on the goals of the legislator to “whitewash” the Russian economy, strengthen the principle of good faith, and ensure the certainty of legal norms. The scientific hypothesis is that the “error” in the information included in the Unified State Register of Legal Entities, whatever its cause, is a special case of unreliability of information. Accordingly, all cases of “error” should be settled within the framework of the general model of reliability of information included in the Unified State Register of Legal Entities. The current regulation does not provide real public reliability of the information; in fact, such public reliability today is nothing more than an illusion. Approaches to determining the reliability (unreliability) of information included in the Unified State Register of Legal Entities do not provide such reliability.
Description of research methods and methodology. The research is based on a systematic and teleological interpretation of normative material (legal norms, explanations of a normative nature, judicial legal positions). Information about the main scientific results. Conclusions. The conducted research fully confirmed the correctness of the proposed scientific hypothesis. Systematic proposals for changing existing approaches to regulation and specific legal solutions are formulated. Conclusions. It is noted that the current regulation regarding the criteria for the reliability/unreliability of information (data) of the Unified State Register of Legal Entities is confusing and creates uncertainty in the legal regulation. The necessity of changing the norms of the Civil Code of the Russian Federation and other federal laws, the abolition of the most odious explanations of a regulatory nature, the foundations of a new regulatory model and proposals for reforming the existing regulatory framework are formulated.
SCIENTIFIC LIFE
The article reproduces the speech of Sergey N. Baburin at the plenary session of the inter-national scientific conference "Law Enforcement in Public and Private Law", which was held on March 26, 2021 at the Faculty of Law of the Dostoevsky Omsk State University. The conference was dedicated to the 200th anniversary of the birth of Fedor M. Dostoevsky. On the example of the law enforcement of the norms of the Treaty on the Creation of the Union Russian-Belarusian State of 1999 the speaker examines the issues of modern social choice in the development of mankind. Civilizm is proposed as a new social system, and the characteristics of its constitutionalism, political system, and justice system are described. The author argues for the necessity of establishing a moral state and creating a union state with the participation of Russia by using the mechanisms of integration constitutionalism.
The article contains a review of Sergey N. Baburin's monograph “The Moral State. The Rus-sian view on the values of constitutionalism”. The review is presented in the form of a po-lemic about the concept of the so-called moral state, which has recently gained some pop-ularity in Russia due to the strengthening of conservative-traditionalist principles in the country's domestic and foreign policy.
ISSN 2658-4050 (Online)