THEORY AND HISTORY OF LAW ENFORCEMENT
The subject of the article is correspondence and competition legal monism and legal pluralism. The purpose of the study is to confirm or refute the author's hypothesis that a peculiar dialectic of legal monism and legal pluralism is inherent in domestic law.
The methodology. The methods of various sciences related to the study of social and legal pluralism are combined. In particular, the system approach, dialectical method, methods of formal logic, formal-legal and comparative-legal methods, theoretical-sociological and theoretical-cultural analysis are used.
The main results, scopresue of application. Within the framework of various social sciences, types of legal understanding, both a monistic view of law and various opinions about its plurality are presented (natural and positive law; the law of various states; domestic and international law; official and unofficial law).
Domestic law in developed countriesis unified, but it is a complex unity consisting of various subsystems (levels). The question of whether these subsystems can not only correspond to each other and complement each other, but also compete with each other, be used by various entities within the framework of choosing the optimal regime of legal regulation has always been ambiguousfor lawyers.
Discussions about legal monism and legal pluralism contribute to the development of theoretical knowledge about law. Situations of more or less pronounced legal plurality undoubtedly influence the specifics of all the main types of legal activity: from legal education and criticism of law to law enforcement. For the latter, the problem of compatibility of the principles of legality, formal equality and various forms of legal plurality has always been one of the most important.
Conclusions. The main manifestations of weak legal pluralism in modern domestic law can be considered as: (1) identification of subsystems of the law of the subjects of the federation and municipalities; (2) recognition of partial legal autonomy of various non-public organizations and autonomous communities (mainly in the field of private law). Each of these manifestations is considered separately. The problem of constitutionalization of legal pluralism is also touched upon. It is shown that a peculiar dialectic of legal monism and legal pluralism isinherent in domestic law.
The subject of the article is the political values of the youth of Russia and Europe.
The purpose of our study is to identify the political values of the Youth of Russia and Europe and conduct a comparative analysis based on the methodology of comparative analysis. Four hypotheses are tested that suggest the values of young people, regardless of the region or country of residence, are common, despite the differences in forms of government, political culture, living standards and traditions of the respondents.
The main research tasks were: 1. Identification of common value orientations of modern youth studying at universities. 2. Determination of the type of cultural mentality (according to the methodology of Russian American sociologist Pitirim Sorokin) of the youth of Russia and European countries included in the sample. 3. Determining the place of politics and the opportunity to participate in policymaking in the system of values of today's youth. 4. Identification of attitudes (loyalty / acceptance / non-acceptance) to modern democratic values, as well as identification of the preferred form of political governance among young people. 5. Determination of the desired type of taxation. 6. Establishing the relationship between political values and quality of life. 7. Determining the understanding of the components of happiness (wellbeing) and the meaning of life of modern youth. 8. Diagnosis of the degree of involvement in politics/apathy of today's youth.
The main results, scope of application. Study made it possible to introduce into contemporary science a new term "integral model of values" – an interconnected set of several life values of a person, each of which describes individual components of values, to form a complete and comprehensive idea of the value system of certain social groups. Empirical study made it possible to identify the basic components of the integral model of values of modern youth in Russia and Europe in a comparative aspect. Under the integral model of values, authors mean an interconnected set of several private value models of a person (mentality, basic human and social values, life satisfaction and a subjective feeling of happiness, political views and actions, cultural values, etc.), each of which describes individual components of values, and all together they form a complete and comprehensive idea of the value system of certain social groups. In the structure of the integral model of youth values, authors included: mentality, political values, political mobility and a system of universal values. In accordance with this structure, we present the results of our study.
Conclusions. Authors not only managed to identify the already established values and, on the basis of them, draw up an integration model of the values of the youth of Russia and Europe through their comparison, but also to determine the needs of today's youth for certain values.
The subject. The article is devoted to the analysis of approaches in the development of the concept of cyberspace in international law.
The purpose of this article is to try to highlight the attributes of cyberspace, which will allow to resolve existing gaps in the field of universal cyber regulation in international law. The research presented in this article was conducted by combining various disciplinary approaches, including comparative law, comparative politics and international relations, political theory, and sociology. In addition, the study includes methods of dialectical logic, analysis and synthesis, as well as a formal-legal analysis of UN international legal acts.
The main results and scope of their application. As states pay increasing attention to cyberspace management as the technical architecture that powers the global Internet and governance in cyberspace, in terms of how states, corporations and users can use this technology, the role of international law in cyberspace is increasing, becoming more prominent, becoming more important. At the same time, note that international law has no specific rules for regulating cyberspace. Moreover, the technology is both new and dynamic. Thus, for several years there have been open questions as to whether existing international law applies at all to cyberspace. Cyberspace is now the backbone of global commerce, communication and defense systems, and is a key aspect of the critical infrastructure that sustains our modern civilization. Technology and information spread almost instantaneously, and the global economy and supply chains are integrated to a degree unprecedented in history. Nevertheless, there is still no developed universal concept of cyberspace in international law, only approaches at the level of the UN, international organizations, including the First Committee of the UN General Assembly on Disarmament and International Security, the G20, the European Union, the Association of Southeast Asian Nations and the Organization of American States and doctrinal approaches are singled out.
Conclusions. The competition for strategic technology and the competition for advantage in the "information space" is growing, so far without the standard international rules of the road. Moreover, the future is likely to prove even more transformational. The potential threats are also extraordinary: autonomous weapons, cyber warfare, sophisticated disinformation campaigns and geopolitical instability. In such circumstances, it is crucial to develop a universal notion of cyberspace because of the persistent significant vulnerabilities and number of threats in global communications.
The subject. The growth of document flow is associated with a complex of reasons, among which there are objective factors. However, there is often an unjustified increase in the number of documents created and processed in institutions. This is due to the presence of unnecessary, unused forms, duplication of electronic documents with traditional and others. Measures to improve and rationalize the organization of document flow contribute to solving these problems. Identifying the main trends and problems in this area will help determine ways to improve the current system of document management standardization in Russia. In Russian science, no attempts have been made so far to identify the main stages in the history of the development of standardization of document management. In this connection, the problem of periodization of the development of standardization of document flow in Russia for the purpose of systematization and scientific generalization of this field of knowledge comes to the fore.
The purpose of the article is to identify the prerequisites for the origin of document unification, as well as to characterize the periods of development and main directions of document flow standardization in the USSR.
The methodology includes historical-legal method, formal-legal method, systematic approach, chronological method, analysis, synthesis.
The main results of research. This study identifies and characterizes the main periods of development and the main directions of standardization of document flow in the USSR, and also defines the characteristic features of standardization of document flow in the designated period. A chronological approach can serve to achieve this goal, which allows us to trace the evolutionary development of document management standardization in the Soviet period.
Conclusions. The study of the legal regulation of standardization of documentation in the USSR allows us to conclude that the Soviet stage was associated with the direct emergence of standardization as a sphere of state policy in general and document management in particular. In this regard, it is proposed to distinguish three periods in the historiography of the problem: 1917 – early 1960s and 1960s – 1970s.
THE LAW ENFORCEMENT BY PUBLIC AUTHORITIES
The subject of the article is electoral qualifications and voting restrictions in the Russian Federation legislation.
The purpose of the article is to determine the permissible boundaries of electoral restrictions, to define the grounds for acknowledgment of such qualifications (restrictions) as unconstitutional (excessive, disproportionate, breaching the principle of legal equality) as well asto formulate legal argumentsthat will contribute to advancing electoral qualification system in Russia.
The authors’ hypothesis is as follows: in comparison with electoral qualifications that are already enshrined in the Constitution, the rise in the number of new electoral qualifications fails to comply with the Constitution’s provisions and is inconsistent with the Russian Federation’s international commitments. The authors meticulously analyse the process of eligibility imposition, draws the line between “electoral qualifications” and “restrictions” in electoral right and compares the Russian system of electoral qualifications (restrictions) with the system of electoral restrictions and limitations in foreign countries.
The main results and the scope of application. The analysis of the given issues has shown that electoral qualifications are specific requirements (conditions). Thus if a state is a democratic one and acts in compliance with the electoral requirements(conditions), the citizens of such state are eligible to run for public office. At the same time electoral restrictions (filters) can be considered as supplementary actions that the citizens have to complete in order to be registered as candidates for the elections. Such actions also diminish the legal chances of the citizens to take part in ongoing elections. The authors prove that guided by political rather than legal criteria, Russian law-makers are prone to impose new eligibility restrictions that in turn impede the process of constitutional values balance search.
A significant number of electoral qualifications is inconsistent with the purposes which legislators pursue imposing new restrictions and limitations on citizens’ rights as well as with fundamental principles of possible restrictions on citizens’ rights set forth by numerous ECHR’s decisions (proportionality, necessity in democratic society, legitimate goal and sufficient reasons). Since dozens of electoral qualifications exist in the Russian legislation, millions of Russian citizens are deprived of their right to vote. Electoral qualifications do not satisfy the RF Constitution requirements stated in articles 17, 18, 19, 32, 54 as well as the principles of universalsuffrage (universality, equal suffrage and free elections).
The authors conclude that the legal regulation of voting right restrictions such as a signature threshold and a municipal filter are to be altered radically. In the short term, the signature threshold preservation is quite feasible provided a substantial decrease in the number of signatures and the simplification of the signature collection procedure. In reference to the municipal filter, undoubtedly, it should be repealed in the near future since there are no opportunities to exclude an administrative pressure on municipal councils’ deputies with the purpose to force them to vote for “suitable” candidatesfor federal and regional authorities.
The subject. Having a proven positive social and economic effect, vaccination remains one of the most important institutions in the system of public safety. The development of this institution requires a rational legal support, considering not only current epidemic process, but also potential threats of bioterrorism and the development of biological weapons. In this light, effective legal regulation of vaccination measures, determination of their desirable forms and scope of the population coverage, as well as cooperation between citizens and the State in ensuring epidemiological safety become a matter of paramount importance.
The purpose. The authors propose to discuss two issues: the limits of the possibility of introducing the institution of mandatory vaccination and the issue of legal assistance for the population to participate in vaccination programs in order to achieve the maximum possible coverage.
The methodology. The article employs a comprehensive approach which combines formal interpretation and comparative analysis of legal acts and courts decisions with the insights from sociology, behavioral sciences and discourse analysis. The article focuses on the international and national standards of regulation of the vaccination by the means of public and private law in order to achieve herd immunity.
Our analysis of the vaccination institute place in the legal system demonstrates that this institution can be included in a row of disciplinary, coercive and binding institutions for citizens prescribing mandatory participation. However, its coercive potential is relatively small and is limited to certain segments of the society that are of strategic importance for ensuring the epidemiological safety. The article posits that such groups remain in the legal field of exceptions, whereas in general, the vaccination institute presumes that the mandatory component is prescribed primarily to the state, not the citizens. And therefore, the citizen's participation in vaccination has the character of an individual rational choice.
Conclusions. Our analysis shows that the law on vaccination should be focused on the facilitating socially desirable individual choice rather than binding norm prescription. In this area, the main tasks of legal regulation are establishment of an adequate system of accounting and distribution of individual risks, as well as fair compensation for possible damages during vaccinations. The second main direction of legal development is overcoming information asymmetry in the situation of individual decision-making in order to reduce the shortage of reliable data and to ensure effective communication within an expert community, the state and the person. We propose that this development contributes to the transformation of a purely legal norm on vaccination into a social and cultural one and strengthens the cooperative strategies of citizens in the fight against vaccine-controlled diseases.
The subject. The institution of investing in the Russian Federation is determined by the set of economic and legal reformations. That is why discussions and debates about the necessity of creating of the investment code, unification of existing rules of investment activity regulation still exist. It is also necessary to form and systemise a kind of a common registry of state support measures and it is also necessary to control the provision of state support. Russian science studies legal regulation of state support of business subjects only in specific ways. Despite the plenty of works on the topic of legal regulation of activity of small and medium-sized businesses, this field of legislation is not developed enough to give an opportunity to conduct complex researches of theoretical and practical aspects relating to exclusively legal and financial framework of state support of the investment activity. In this article we detect and reveal general problems connected to introducing of tax frameworks of state support of promotion of investments in the conditions of existing Russian legislation. In the context of this article we show the analysis of novelties related to egal regulation of tax instrument of state support of investments. Theoretical importance of this article lies in suggestions on improving of this field of national legislation.
This research is aimed at theoretical realising of legal regulations of current measures on performing of tax policy while implementing Act on investments.
The methodology. The basic method of research of mentioned problems is a formal legal one. There are some problems in the process of investing based on the Agreement on protection and promotion of investment. With the help of this method these problems were examined taking into consideration the implementing tax policy in this field of entrepreneurship.
The main results. Several legal problems are revealed and specified in this article. Authors prove their own point of view which consists of idea of detailed theoretical elaboration of the problematics in order to implement a framework of Agreement on protection and promotion of investment successfully, given that it is necessary to enact the list of bylaws by the Government of the Russian Federation and to create an impeccable software.
Conclusions. Authors suggest measures for improving of legal regulations of current investment legislation and tax and fees legislations. It is crucial to point out that such issues as a procedure of entering into agreements (including the procedure of holding a tender within public project initiative) and common requirements to them; standard form of an agreement; the procedure of monitoring of realisation stages of an investment project (in relation to which the Agreement on protection and promotion of investment was signed); the procedure of keeping of a register of such Agreements; the procedure of the identifying of the level of the compensation of spendings needed for the project’s realisation and as well as spendings on payments of credits and loans’ interests, coupon payments from the bonded loan and etc. From the point of view of the legal regulation’s systematisation the complex law institution has been formed, and it contains principles and rules of both public and private law. The complexity of legal relationship, appearing in the process of investing, requires to take into account public and private interests, and moreover it conditions the necessity of intersectoral legal regulation. Combining diverse legal means provided for in the context of legal regulation of budgetary and tax relationships public legal entities in order to achieve a maximum effect can provide the stimulation of growth of investment which is able to become a booster for economic growth of the state.
The article touches upon the issues of law enforcement and court practice related to the collective rights of aboriginal communities.
The purpose of the article is to reveal the content of the right to self-determination through the prism of the most significant cases related to indigenous peoples.
The methodological basis of research is the general principles of scientific knowledge, widely used in works in the field of law: system-structural, formal-legal, comparative-legal, historical, methods of analysis and synthesis, analogies, etc. Particular attention was paid to the formal legal method, which was used by the authors of the study to analyze international judicial practice on the rights of indigenous peoples, as well as, in some cases, the national legislation of the countries participating in a particular case.
The main results, scope of application. The right to self-determination of indigenous peoples is multicomponent and includes a number of specific elements and facets of interpretation. The authors have made an attempt to reveal the fundamental elements of the right to self-determination of indigenous peoples, which, in their opinion, consist of: the right to sovereignty as such, or autonomy and recognition as collective subjects of law, the right to land and resources, traditional nature management, autonomous education, mothertongue and culture.
For each of the above-mentioned elements, a specific case is described, which was considered in international courts, primarily in the International Court of Justice, the Inter-American Court of Human Rights, the ECHR and etc.
Conclusions. International recognition of a state through inclusion in the UN General Assembly is impossible without the permission of the Security Council; the issue of “effective occupation” has played and continues to play a large role in the issue of governance and sovereignty over a specific space and territory, and not only settlers, but also traditionally living indigenous peoples play a significant role;
Indigenous peoples living in the coastal zone should have the right to dispose of income from the exploitation of the continental shelf; the relationship with the land is not only a matter of ownership and production, but a material and spiritual element that indigenous peoples must fully enjoy, if only to preserve their cultural heritage and pass it on to future generations; the status of “national minority” deprives the indigenous people of priority in the use of land for traditional reindeer herding; means of ensuring freedom of expression of indigenous peoples is an important element for the promotion of identity, language, culture, self-identification, collective rights.
The subject. One of the problems of contemporary states is waste and the search for opportunities for transformation into products. In this aspect, phosphogypsum, which is a waste product of mineral fertilizers, is interesting. It is subject to recycling in a small amount now.
he purpose of the article is to identify legal possibilities for regulating relations related to industrial waste in terms of their secondary use.
The main results, scope of application. Phosphogypsum can be used for the construction of highways, dams; the production of fertilizers and salts; the production of construction products using non-recycled phosphogypsum; agriculture; in the production of gypsum binders and products made from them; in the cement industry; as a filler in various industries. With the technological possibility of recycling such waste as phosphogypsum, there is no legal possibility of their use. The absence of the necessary legal regulation of relations in the field of waste disposal, clear legally fixed criteria for classifying waste as secondary material resources and the possibility of their use, may entail certain negative consequences for economic entities.
Conclusions. The process of waste transformation into products from a legal point of view should consist of the following stages: waste disposal (both with and without pretreatment); the process of waste transformation into products directly (with a license for waste of hazard classes I – IV, compliance with licensing requirements, conclusion of the state environmental expertise on processing and disposal technologies, equipment used in this process, etc.). The following stage is legally correct and documented recognition of waste that is secondary material resources. The last stage is exclusion of said waste that is secondary material resources from approved waste generation standards and limits on their placement, as well as reflection of their movement in the journal of waste generation and movement.
The subject. The article considers a study of regulation of countering domestic violence in Russia and Germany. The author investigates the draft of Russian federal law "On the prevention of domestic crimes" No. 1183390-6 and the law of Germany "On civil protection from acts of violence and persecution" as well as federal and lands’ legislation in this sphere. Purpose of the study. The comparative study aims to identify the reasons for the draft’s unviability in Russian Federation, in particular, and to search for legislative opportunities to solve the domestic crime’s problems in Russia, in general.
Methodology. The article is based on the comparative legal method. Due to this method, the article describes the legal protections against domestic violence in Russia and Germany (at the level of the federation and states), the advantages and disadvantages of each system.
The main results. The legal measures in Germany as well as the draft federal law in the Russian Federation contain protective measures that can be applied by police and court. The main feature of German measures from Russian ones is the possibility of temporary violator’s ejection from the occupied housing by issuing a judicial or police order. The simplicity of the procedure allows а victim to receive effective help at any time, even at night and on non-working days. The article analyses the allowability of these measures to the offender from the point of view of basic rights’ interference; notes the position of the Federal Constitutional Court of Germany about the police order on temporary eviction: the residence ejection is allowable only when the measure aims at preventing criminal acts. The article draws attention to the technique’ defects of the Russian draft federal law "On the prevention of domestic crimes" No. 1183390-6, which require correction in order to improve the domestic violence’ counteraction in Russia.
Сonclusions. It is concluded that in the Russian Federation it is necessary to differentiate heterogeneous phenomena in the law, such as victim’s protection from domestic violence and preventive family relationships’ measures, unreasonably mixed together in the draft federal law "On the prevention of domestic crimes" No. 1183390-6. Besides the law about victim’s protection from acts of violence and persecution should include significant consequences exactly for the violator. In this regard, the German multi-level protection system consisting of police protective measures, preliminary judicial measures as well as judicial measures can be applied. German practice makes it possible to react quickly to an act of domestic violence and provide the necessary victim’s support. The experience of applying the police order on the temporary eviction in Germany as well as violator rights’ interference may be appropriate for use in Russia.
The subject. Any legal order is based on a strict hierarchy of normative acts, built according to their legal force. This hierarchy has been ensured by, among other things, exercising judicial review. In Russia, a normative act can be challenged on the grounds that it contradicts laws of greater legal force, except for the Russian Constitution, in the procedure provided for in Chapter 21 of the Russian Code of Administrative Proceedings. In doing so, one of the crucial questions to be decided in the course of judicial review of normative acts is the determination of the moment when a normative act contradicting a normative act of greater legal force ceases to be valid. This temporal aspect is extremely important because it determines whether individuals whose rights have been violated by law enforcement acts (acts involving application of the law) based on a null and void law are entitled to seek judicial relief. The purpose of the article is to confirm or refute hypothesis about the permissibility of a situation in which unlawful normative act remains valid for a certain time. The methodology of research includes formal legal analysis and interpretation of the norms of the Russian Code of Administrative Proceedings, decisions of the Russian Constitutional Court and other courts.
THE LAW ENFORCEMENT BY LOCAL AUTHORITIES
The subject of this study is the current municipal reform in the Russian Federation and an assessment of its impact on the legal status of science cities.
The purpose of the article is to determine the theoretical approaches and practice of legislative regulation of the legal status of science towns, prospects for modern and future legal regulation of the peculiarities of local self-government in such a territory as a science city. The main hypothesis is that the blank method of regulating the peculiarities of local selfgovernment in science cities, perceived by the federal legislator, does not achieve its goal, which obviously requires a revision of approaches to legislative regulation of the status of such a special territory as a science city.
The authors used both general research methods, including methods of analysis and synthesis, and industry methods, including the formal legal method.
The main results. The authors note the inconsistency and inconsistency of the legislative regulation of the legal, organizational, economic and social foundations of science cities and the peculiarities of the implementation of local self-government in them. Foreign experience in the formation of analogues of Russian science cities demonstrates that, firstly, the creation and development of technopolises contributes to the formation of the most optimal forms of interaction between science and production. Secondly, foreign technopolises are usually formed at research centers and universities, without having a strict link to the territorial foundations of the functioning of municipalities.
The authors claim that the science cities of the Russian Federation do not have a constitutional and legal status and are neither the subject of study of such a branch of Russian law as constitutional law, nor the subject of regulation of constitutional legislation. At the moment, the legal status of a science city in the Russian Federation has a dual nature: on the one hand, a science city is a municipal entity with the status of an urban district; on the other hand, it is a territory within which there is a scientific and production complex. At the same time, these two sides of the legal status of a science city in the Russian Federation are poorly interconnected at the level of regulatory regulation. It seems that a science city as a territory with a scientific and industrial complex obviously has a different legal nature than a science city – an urban district, as a territory within which the population and (or) local self-government bodies resolve issues of local importance.
Conclusions. It is important to determine at the level of federal authorities the need for further consolidation of the status of municipalities or other legal status of the territory of a science city, which includes high-tech enterprises with a significant concentration of human and material scientific and technical resources, the use of which is aimed at the implementation of science and state scientific and technical policy. If the link "science city – municipal entity" is recognized as necessary and fundamental in the future, taking into account the provisions of Articles 12 and 132 of the Constitution of the Russian Federation, it is necessary to establish, firstly, the legal features of the implementation of local self-government in science cities, and secondly, the basic principles of interaction of local self-government of science cities with public authorities as the solution of issues of local importance in the interests of the population living in the territory of the science city, and the forms and order of participation of the organization.
The subject of the article is legal issues of municipal authorities’ activities in the field of socioeconomic development.
The purpose of the article is to identify trends in the legal regulation of socioeconomic issues of organizing local self-government in the largest cities of the Russian Federation. The methodology includes formal legal interpretation of Russian legislative acts, decisions of Russian Constitutional Court as well as systemic analysis of municipal acts.
The main results, scope of application. The article analyzes the division of powers between regional and municipal authorities. At the present stage of development of Russian federalism, a rather complex and unstable model of delimitation of powers between levels of public authority has developed, which does not contribute to the socio-economic development of municipalities. distribution of powers between levels of public authority. The question of the delimitation of powers acquires new content in the formation of urban districts with intracity division and intracity districts in the largest cities. Based on the experience of organization and activities of urban districts with intracity division of Chelyabinsk and Samara, the problems and prospects of this approach to territorial planning and the distribution of powers between levels of public authority are outlined. Special attention is paid to the problem of finding a balance between centralization and decentralization of local self-government. In this aspect, the issue of a more effective delimitation of powers between different levels of public authority comes to the fore in order to maintain a unified urban policy in the field of ensuring the socio-economic development of the largest cities of the Russian Federation.
Conclusions. A comprehensive approach is needed to delineate powers between levels of public authority, taking into account the importance of the largest cities in the spatial development of the Russian economy and their role in the formation of urban agglomerations. Only centralized administration makes it possible to develop a unified urban infrastructure. Therefore, improving the interaction of public authorities and local self-government is a necessary condition and the most important area of work in major cities that requires joint efforts. However, at the same time, it is necessary to avoid the degeneration of local self-government into a state one and the loss of the internal content of this institution of public power.
THE LAW ENFORCEMENT BY THE JUDGES
Subject of the research. The article considers two levels in the mechanism of protection of human rights and freedoms: national and supranational. National includes both judicial and non-judicial methods of protection. The supranational level is represented by universal (global) and regional ways. The purpose of the research is to identify an effective mechanism for the protection of human rights that can replace the mechanism of protection provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, which has ceased to be valid for citizens of the Russian Federation. Research methods are the formal-legal method, analysis, synthesis, formallogical method.
The main results. Theoretically, a particular citizen can use any of the national and supranational mechanisms for the protection of human rights. However, the nature of their action and the procedure for gaining access to these mechanisms are different, which affects their effectiveness and the readiness of a person to turn to one or another method of protection. Among supranational mechanisms, the Universal Declaration of Human Rights of 1948 has a unique status: on the one hand, this document is “a symbol of the moral consensus of all states, the starting point for the creation of a modern human rights regime”; on the other hand, it is an act-declaration, the application of which in specific legal relations and the protection of human rights with its help are problematic. The International Covenant on Civil and Political Rights of 12/16/1966 provides for the establishment of a Human Rights Committee that exercises control over the provisions of the Covenant through a system of reports. Reports on measures taken to implement the rights provided for by the Covenant, as well as on non-fulfillment of their obligations under the Covenant by other States Parties, are submitted by States Parties. The mechanism of reports, however, is not reliable enough - there are states that ignore it.
Regional Conventions are rightly considered the most effective means of protecting human rights. The implementation of the provisions of the Conventions is ensured by the activities of supranational judicial bodies, to which the applicant can file a complaint. The conditions for applying to such a court, its territorial proximity, the possibility of executing court decisions make this method of protection as accessible as possible. Among the national remedies, first of all, it should be noted the activity of the Constitutional Court of the Russian Federation to protect the constitutional rights of citizens. The provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Constitution of the Russian Federation in the section on human rights are almost identical, often written in the same phrases. But, despite the number of coincidences in the designation of human rights and freedoms, the main thing is not the designation (this is a declaration) of a specific right or freedom, but how they are applied and what is the practice of their protection (interpretation) by the Constitutional Court at the national level and the Convention on the supranational. It is here that the understanding of “identical” formulations can differ, and the question of who is better: a national or supranational body protects a particular human right, becomes debatable. It should also be remembered about the very meaning of supranational protection as an opportunity to receive protection from one's own state, albeit a subsidiary one. Therefore, it would be wrong to assume that in the absence of the possibility of applying to the ECHR, a citizen will be able to receive protection in the Constitutional Court without prejudice to the outcome of such protection.
Considering that the protection of human rights is, first of all, the activity of national courts of first instance, consideration by the courts of administrative, civil and criminal cases, in cases where it is carried out in full compliance with the norms of procedural legislation, is able to fully ensure the protection of the rights and human freedoms. To do this, the courts have all the necessary tools, you just need the ability and desire to use them.
Among the internal structures for monitoring the observance of human rights, a number of state and public bodies can be distinguished - the Commissioner for Human Rights in the Russian Federation, the Council under the President of the Russian Federation for the Development of Civil Society and Human Rights, the Public Chamber of the Russian Federation, the police, the prosecutor's office and others. However, it is not possible to attribute them to the effective bodies for the protection of human rights.
Conclusions. The existing national and supranational mechanisms for the protection of human rights, in their effectiveness, are not able to fully compensate for the loss of the opportunity for citizens of the Russian Federation to file a complaint with the European Court of Human Rights.
The subject. The article focuses on the concept of acts which clarify legislation and have normative properties (acts with normative properties, or ANPs). This concept was introduced in Russia’s procedural legislation in 2016 in order to allow such acts to be challenged by way of judicial review. ANPs are different from normative acts and, in accordance with the established doctrinal classification, can be described as interpretational acts.
The purpose of the article is to examine the nature of ANPs and the way in which Russia’s courts decide judicial review claims which seek to challenge ANPs.
The methodology includes interpretation of Russian procedural legislation and analysis of doctrinal researches on judicial review of ANP. The authors also analyze the materials of the empiric monitoring of judgments in ANP judicial review cases and ascertain the criteria of normativity which are relied upon by Russia’s courts when identifying ANPs and distinguishing between ANPs and other legal acts – primarily, between ANPs and normative acts. The main results, scope of application. The authors describe the drafting defects in the procedural legislation and maintain that the statutory definition of ANP lacks clarity. The authors put forward their own definition of ANP as distinguished from normative acts, on the one hand, and acts that apply legal norms, on the other hand. The authors argue that, in contrast to normative acts, ANPs not only lay down the will of the issuing authority, but also have a knowledge acquisition (cognitive inquiry) component in them. There is a logical and semantic link between the content of an ANP and the norms which are contained in a normative act and are interpreted by the ANP. In contrast to an act of legal application, the validity of an ANP depends not only on the competence of the authority that issued the ANP, but also on the validity of the normative act interpreted by the ANP. Further, acts of legal application, but not ANPs, establish a logical correspondence between individual objects and the general concepts used in legal norms.
The authors also analyze the doctrinal works on judicial review of ANP. The scholars who criticize the introduction of this procedure in the legislation believe the concept of ANP to be superfluous for various reasons and argue that ANPs are either non-normative acts or defective normative acts. The authors of this article, however, maintain that the scholars who criticize the concept of ANP do not take into account the special nature of ANP normativity – i.e., normativity of interpretational acts. The authors put forward a hypothesis regarding the way in which courts are likely to treat ANP judicial review cases, describe the materials of the empiric monitoring, and then provide the statistical result of the said monitoring.
Conclusions. The analysis of the content of judicial acts allowed the authors to identify five types of interpretational collisions between the original legislative norm and its interpretation (clarification) in an ANP. The reasoning of the courts was analyzed to reconstruct the criteria used by the courts to establish whether a challenged legal act has normative properties. The authors identified that the courts consider that there are two ways in which an ANP can acquire normative properties: either through the expression of the will of the issuing authority or through actual application of an ANP. The authors describe the criteria of both types of ANP.
The authors conclude the article with the description of the main problems revealed during the monitoring and propose their possible solutions.
The subject. This article examines the dialogue between the EAEU Court and national courts, on the one hand, as the application by national courts of the court of the integration organization, on the other hand, – as a recourse by the supranational court to the legal constructions that have been developed in the case law of the Member States’ courts.
The purpose of the article is to confirm or disprove hypothesis that judicial dialogue between the court of the integration association and the courts of its Member States is the key to the effective application of supranational law.
The methodological basis of the research is the doctrine of EU law, as well as the practice of Court of Justice of the European Union. The formal legal interpretation of the EAEU Court decisions and decisions of national Supreme Courts is also used.
The main results, scope of application. One of the characteristics that differentiates the law of an integration organization from universal international law is its active application not only by the judicial body of such an organization, but also by the national courts. The plurality of actors in charge of the application of the law raises the question which of them have the authority of interpreting the integration law and the modalities of such an interpretation. One of the instruments that could help overcome the lack of uniformity of approaches regarding the interpretation and application of supranational law by the courts of several member states is the preliminary reference procedure. In the absence of such a procedure the burden of interpretation of supranational law rests on the national courts. Such a situation has arisen in the Eurasian Economic Union where the EAEU Court is empowered to interpret the law of the Union while settling disputes regarding the respect of EAEU law by its Member States, the challenge of the Eurasian Economic Commission's actions (failure to act) and decisions as well as delivering advisory opinions. The courts of the Member States, in turn, interpret the law of the EAEU in various fields of relations, including the ones where regulatory powers have been transferred to the supranational level. The analysis of national case law shows that in their application of EAEU law they premise their judgments on the principle of its primacy over national legislation.
Conclusions. Judicial dialogue allows to prevent the non-uniform interpretation of the Union law by the court of the 5 Member States. It is a form of exchange of legal positions and concepts between the judicial bodies which, as a result, leads to a mutual enrichment of the legal orders by borrowing legal constructions and approaches.
THE LAW ENFORCEMENT BY THE ADMINISTRATIVE JURISDICTION BODIES
The subject. The article is devoted to the study of a wide variety of administrative disputes arising in the Russian legal system, but insufficiently studied by domestic administrative legal science.
The purpose of the article is scientific substantiation of the concept, key elements and system of administrative disputes in the Russian Federation, identification of the constitutional foundations for the development of the institute of administrative disputes and proceedings for the resolution of administrative disputes.
The methodology of research includes formal logic and systemic approach as well as legal-dogmatic method, method of interpretation of legal norms, method of comparative jurisprudence.
The main results, scope of application. An administrative dispute is proposed to be understood as a documented disagreement of a subject of administrative or administrative-procedural legal relations with the decision, action or inaction of a public administration body (official) or another entity implementing or assisting in the implementation of administrative public functions which, in the opinion of the applicant of the dispute violates, infringes or encumbers his subjective right. Such disagreement is addressed to the competent authority (authorized official) of the public administration or the competent court (authorized judge) in order to resolve this disagreement in a special extrajudicial or judicial administrative procedure. The key elements that make it possible to characterize an administrative dispute are: 1) the objects; 2) the matter; 3) the purposefulness of the administrative dispute. The connecting link between the presented elements of an administrative dispute is the subjective right of participants in administrative and administrative-procedural legal relations, or to put it another way – subjective law arising from administrative and administrative-procedural legal relations, which is understood as a collective category combining such a well-known legal structure as "rights, freedoms, legitimate interests", as well as individual elements of the administrative-legal status of the applicant of the dispute, established by the administrative-procedural law, which require extra-judicial or judicial protection in an administrative dispute (first of all, procedural guarantees of innocence and good faith).
Conclusions. Administrative disputes primarily arise from administrative and administrative-procedural legal relations that develop during the implementation of administrative public functions by specialized public authorities and authorized organizations, which in a generalized form are proposed to be called public administration bodies. In some cases, administrative disputes arise from administrative and administrative-procedural legal relations in which public administration bodies and their officials do not participate. These administrative disputes arise in connection with the provision of assistance to the public administration in the performance of its administrative public functions.
THE LAW ENFORCEMENT BY THE BODIES OF PRELIMINARY INVESTIGATION AND INQUIRY
The subject. Criminal law forecasting is a scientifically based analysis of the prospects for the development of criminal law in order to optimize criminal legislation and the practice of its application. Its subject includes: foreseeing the needs of society in the criminal law regulation of public relations, their criminalization and decriminalization; the dynamics of the development of criminal law relations in society, the development of a criminal law concept of combating socially dangerous phenomena for the foreseeable period; foreseeing the consequences of changes in criminal legislation; the presence of real prerequisites for its application; prognostic assessments of the effectiveness of criminal law norms in the process of law-making and law-realization activities; scenarios and models for the implementation of criminal law institutions and norms; technologies for combating criminality in the application of criminal law norms; prospectsfor the development of the science of criminal law itself, taking into account its scientific potential.
The purpose of the article is to establish the ideology and main trends in the development of criminal legislation and the practice of its application in post-Soviet Russia, to determine the methodology for the modernization of criminal policy in the new geopolitical conditions.
The methodology of research includes axiological and system approaches, determinative analysis, search and normative forecasting, extrapolation, expert assessments, modeling.
The main results, scope of application. There are two diametrically opposed ideologies that are of fundamental importance for criminal law and criminal law forecasting: 1) liberal and 2) conservative. The criminal law policy of the Russian Federation has so far developed in line with liberal ideology. Its main goal is to modernize criminal legislation in terms of decriminalizing economic crimes and humanizing the treatment of white-collar criminals. Conservative criminal law policy is based on the methodology of normative forecasting, which is aimed at achieving the desired (for the state and society) results. This methodology is based on a systematic approach. From the standpoint of this approach, the object of criminal law forecasting is an organized system with an extremely complex structure consisting of three subsystems: managing, managed and criminal law norms. The content of each of these subsystems requires corrective action in order to achieve compliance with the traditional axiological scale and common sense. It is also necessary to solve the problem of coordinating criminal law and criminological legislation.
Conclusions. Criminal law forecasting allows us to formulate a number of theses that should be the basis for the concept of optimizing the criminal policy of the Russian Federation: (a) rejection of the liberal model of criminal law regulation of public relations, the transition to a conservative model, which should be dominated by state and public, not private interests; (b) recognition of organized economic and official crime as priority objects of criminallegal influence; (c) coordination of criminal-legal and criminological legislation; (d) adoption of the Federal Law "On Combating Organized Crime".
The subject of the research is the mechanism for the execution of criminal procedural duties that ensure the implementation of adversarial in Russian criminal proceedings.
The subject of the research is the mechanism for the execution of criminal procedural duties that ensure the implementation of adversarial in Russian criminal proceedings. The purpose of the research is to justify the existence of the problem of organizational-legal support for the proper fulfillment of the duties assigned to participants in the criminal process and to determine the main ways of solving. The hypothesis of the research is the thesis that the combination of legal, organizational, and other means existing in criminal procedure legislation does not guarantee the proper fulfillment of the duties imposed by the legislator on the participants in adversarial criminal proceedings.of the research is to justify the existence of the problem of organizational-legal support for the proper fulfillment of the duties assigned to participants in the criminal process and to determine the main ways of solving. The hypothesis of the research is the thesis that the combination of legal, organizational, and other means existing in criminal procedure legislation does not guarantee the proper fulfillment of the duties imposed by the legislator on the participants in adversarial criminal proceedings.
The methodology. General scientific dialectical methods made it possible to study the conditions and the process of evolution of legal duties, to reveal their essence in the field of criminal proceedings. The system-structural method and the situational modeling method were used when studying the intra-system relationships of elements of the mechanism for the execution of criminal procedural duties and the system of means that ensure its implementation. The study of regulatory legal requirements was carried out using the formal legal method.
The main results, scope of application. The article examines the problem of organizationallegal support for the proper performance of the duties assigned to participants in the criminal process, guaranteeing the proper implementation of adversarial in criminal proceedings. The general concept of duty is given, and the definition of criminal procedure is formulated. The nature of the duties is revealed and their classification is proposed. The fundamental legal significance of the category "Adversarial" as a principle of criminal procedure is identified and the significance of criminal procedural duties as the main security means of the specified procedural category is justified. The provisions of the current criminal procedure legislation in Russia are critically analyzed from the point of view of the presence or absence of legal and organizational means in them that ensure the creation of the conditions necessary for the emergence of a real possibility of proper performance of duties by participants in the criminal process. It is established that the organizational and legal resources required to effectively ensure the proper performance of criminal procedural duties are insufficient. A problematic situation in criminal proceedings is revealed in the form of imperfection of the means intended to achieve his appointment in the context of the implementation of the adversarial legal regime. The views of scientists on the issues studied in the article are studied, analyzed and evaluated.
Conclusions. The essence of the scientific problem of research is formulated and proposals are put forward aimed at improving the criminal procedure regulation of the proper behavior of legally liable participants in the criminal process in order to increase the effectiveness of ensuring the implementation of adversarial in criminal proceedings in Russia.
THE LAW ENFORCEMENT IN PRIVATE LAW
The subject of research is the problems of modernization of the subject of labor law and the theory of labor relations in the context of the transformation of the labor sphere The purpose of article is to confirm or disprove hypothesis that
The methodology of research is formal legal and logical interpretation of Russian Constitution and labor legislation, analysis of the academic publications concerning labor law. Based on the historical analysis of the law structuring process, the direction of development of labor law as a private-public branch of law.
The main results, scope of application. It is substantiated that the totality of elements of legal relations, characteristic of both private and public law (freely entering into labor relations on the basis of an agreement, but forced to fulfill obligations under the agreement exclusively by personal labor, obeying the employer’s will in the process of labor activity), should be a system (an interconnected integrative set having an anti-entropic character) in order to function effectively. The removal of some elements from this system entails an imbalance in the system of the labor law branch as a whole, with possible subsequent destruction. On the basis of a systematic approach, the formation and development of the theory of labor relations in domestic legal science are studied. The foundations of the convergent "theory of the plurality of unified labor relations", developed for application in the conditions of transition to new technological paradigms and growing differentiation of forms of labor organization, are proposed and substantiated. This theory was developed on the basis of the “theory of a single indivisible labor relationship” by N.G. Aleksandrov and "the theory of the complex of labor relations" V.N. Skobelkin. On the basis of the theory of plurality of unified labor legal relations, the prospects for expanding the subject of the branch of labor law are determined by including in it emerging new relations that are associated with the use of human labor on a contractual and non-contractual basis. A motivated assumption is formulated that such an expansion of the subject of labor law will make it possible to complete the process begun a century and a half ago and finally remove all contracts providing for the employment of labor from the subject of civil law in favor of labor law. A contract of personal employment between individuals, assuming the equality of the parties to the use of independent labor not with a single employer, will remain civil law. Through the institutions of labor protection, social insurance and social partnership, labor law should begin a systematic expansion to any emerging new form of organization of human labor. After that, a new form of labor organization can be subject to various sets of other industry norms and institutions, the use of which ensures the protection of the employee and an increase in production efficiency. The necessity of changing the presumption of proving the existence of labor relations to proving civil relations is substantiated.
Conclusions. The article substantiates the three-subject composition of the participants in the system of legal relations arising from the use of agency labor (contract on the provision of an employee) and the need to establish joint liability of subjects on the side of the employer (solidary employer). It proves the need to release the employee from liability for offenses detected by artificial intelligence. It is proposed to continue research on the prospects for the formation of labor procedural law.
The subject of the article is impact the gig economy to the legal regulation of labor, civil, tax relations.
The purpose of the article is to identify the problems of legal regulation of relations between gig workers and digital platforms in the gig economy and suggest ways to improve it.
The methodology includes systematic approach, comparative method, formal-logical method, formal-legal method, analysis, synthesis.
The main results of the research. The transition from a “classic” industrial employment relationship between an employer and an employee to one based on the gig economy, using digital platforms to link the employee to their job, has created problems in classifying employment arrangements in labor law. In the current situation, the state needs to do a lot of work: (1) the sphere of the gig economy requires the compilation of clear terminology, as well as the analysis and identification of the functions of digital platforms and gig workers, then it requires amendments to labor legislation; (2) it is necessary to develop criteria for gig workers or independent contractors, one of the criteria can be proposed: the performance of work by a gig worker without the control of the hiring firm. The hiring firm's control should be limited to accepting or rejecting the results a gig worker achieves, not how they achieve them; (3) It is necessary to delimit the sphere of regulation of hired labor from the sphere of regulation of gig-employment, to withdraw gig-employment from the regulation of labor legislation.
An analysis of the current legislation and law enforcement practice shows that the cornerstone of legal regulation in the field of the gig economy is the issue of legal registration of relations between digital platforms and their partners. Thus, with a rigid approach that identifies these relations with labor relations, the gig economy loses its specificity, digital platforms lose their competitive advantages in many ways, and in some cases, their ability to function. At the same time, the current relations in the field of employment of individuals on digital platforms allow us to speak about the presence of certain differences between such relations and labor relations, which are manifested mainly in greater freedom on the side of the "employee" and less control on the part of the employer – the digital platform, and also the unstable nature of this form of employment and its subsidiarity to more traditional forms. The specificity of the relationship between platforms and its counterparties also raises the question of the need to reform the provisions on civil liability, aimed at formulating special grounds for the responsibility of digital platforms, the distribution of this responsibility between them and their partners. Such provisions may be based on the existing norms on the liability of the employer for harm caused by his employee.
Conclusions. The change of labor relations between employees and the employer to the relationship between the digital platform and gig workers predetermines the transformation of tax legal relations, in terms of the following aspects: what taxes should a gig worker pay, should there be any special tax regime; how the issue of paying insurance premiums should be resolved, whether they should be mandatory or voluntary; what role digital platforms will play in tax relations, whether they should act as tax agents or data providers; what requirements for gig workers, as taxpayers, should be imposed by tax legislation in terms of record keeping and reporting; how tax control should be exercised over gig workers and digital platforms.
ISSN 2658-4050 (Online)