Электронный журнал Юридические исследования - №5 за 2013 год - Содержание, список статей - ISSN: 2409-7136 - Издательство NotaBene
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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 05/2013
Contents of Issue № 05/2013
Transformation of legal systems
Ursul A.D., Ursul T.A. - Globalization in the perspective of sustainable future. pp. 1-63


Abstract: Sustainable development is a future global process and the future of entire mankind and its fate in the new Millennium depend on it.  It is a new form (model) of global community development, which guarantees resolution of the key social and natural contradiction between the growing needs of global development and limitations, or even impossibility for  the biological sphere to meet these demands.  Unfolding in its future political, economic, environmental and social aspects through sustainable development, globalization  should provide its input into the resolution of the key social and natural and other contradictions of the global development, and thanks to this input it may be possible to meet the current and future demands.  The transfer to implementation of policies and strategies of sustainable development brings the humanity to a new mainly social and natural globalization stage, which is aimed towards unity of civilization, its preservation and co-evolution with the biological sphere.  The article concerns political aspects of globalization through sustainable development, and attention is paid to the fact that political dimension of emergent globalization falls behind economic and other elements of this global process.  The sustainable development strategy which is developed by the UN and its Member States,  seems to contain mostly political recommendations and declarations. Therefore, it is important to include into the starting process of managing "sustainable" globalization all of the key elements of this global strategy.  Sustainable development in the broadest sense is non-regressive, and secure development for the main humane goal of survival of humankind and preservation of nature.  The authors evaluate the role of state in implementation of globalization processes through sustainable development and study of the further evolution of the statehood phenomenon.  The authors pay special attention to the problems of environmental globalization, sustainable policy and its specific characteristics. 
Law and order
Kukharuk V.V. - Dangerous influences upon the psychic functions of a person and the problems of their criminal law regulation. pp. 64-82


Abstract: The author provides his classification of the substances, which are dangerous for the health of the population under Ch. 25 of the Criminal Procedural Code of the Russian Federation, based upon the criterion of subjective attitude of a person to the possibility of poisoning with them.  Taking narcotic analogues, the author shows that the primitive adoption of foreign legislative norms for the improvement of the existing criminal legal construction at times makes their practical implementation impossible.  The author supports an idea of developing a more reliable criminal law mechanism in order to guarantee health security of the population in the sphere of unlawful production (construction) of psychoactive substances, which formally do not fall within the closed lists of narcotic substances, such as ("designer" drugs), use of technologies of changing the structural position of atoms within a molecule in order to provide substances with psychoactive qualities, cultivation of narcotic-containing plants based upon the revolutionary achievements in the sphere of agricultural selection; dangerous influence on a brain (such as acoustic influence) in order to achieve a narcotic effect ("digital drugs").
Korchagin A.G., Fedotova N.P. - Classification and subjective prerequisites of responsibilty for causing grave harm to health. pp. 83-107


Abstract: The subject of crimes against human health is a physical mentally sane person, who has achieved the age established by criminal law, who is guilty of committing the said crimes.  Establishing the elements of crime subject in crimes against human health is an important element to precise qualification of crimes in legal practice.  However, in some cases this work is complicated by ambiguous interpretation of three obligatory and one additional element, and overly blank character of their formulation.  The fourth additional element (special subject), which is present in p. 2 of Art. 118, Art. 121, p.2,3 Art. 122, p.4 Art. 122, p .3 Art 123 and Art. 124 of the Criminal Code of the Russian Federation causes most problems in qualification of crimes.  Correct establishing of the subjective element of crime is of prominent value for the criminal legal evaluation of causing grave harm to health. The subject acting against health of other person understands the character of harm to health, as well as its amount and a number of other objective circumstances and consequences relevant for criminal law evaluation of a crime.
International relations: interaction systems
Inshakova A.O. - The program unification as the basis for the development of standard competition policy of the Southern region according to the WTO standards. pp. 108-134


Abstract: The article is devoted to the study of priority goals and perspective vectors for the development of the national legislation in the sphere of sub-federal competition regulation in the conditions of innovative economy taking into account the need for their transformation  under the influence of Russia joining the WTO.  A competent national competition policy, which is capable of guaranteeing support and development of an adequate anti-monopoly environment for the formation of fully-fledged competition of national economic innovative subjects, including those with foreign participation, is among the primary goals, which need to be achieved in order to guarantee the process of positive effect generation after the long-awaited joining of Russia into the WTO.  The study is based on the key standard to the WTO anti-monopoly regulation, which are aimed to even out the national legislation towards the level of competitive interaction.  It is noted that correspondence of normative legal regulation of innovative economic activities in the conditions of healthy competitive environment may only be implemented in accordance with the international treaties to which Russia is a party, the Constitution of the Russian Federation, the Civil Code of the Russian Federation, and the laws and other normative acts adopted in accordance to them, but also with the laws and normative acts of the constituent subjects of the Russian Federation. The issues of legal guarantees of competitiveness of Russian goods and services, as well as those of state support of national and regional economic subjects in the sphere of innovations are studied based upon the example of a competitive environment and sub-federal legislation of the Volgograd region as an element of the forming global legal system, presupposing normative unity of all of its structural elements.
Stabilization systems: government control
Chovgan I.V. - Analysis of the influence of globalization on national security guarantees in the sphere of higher education. pp. 135-149


Abstract: The article offers an analysis of the influence of globalization on the national security state in the field of higher education.  The author provides characteristics of the general trends in higher education , which are related to globalization. The key issues that are addressed jointly facilitate the process of globalization and the development of education, the value of export of educational services, and their inclusion is the priority sphere of public policy. The author discusses the need for integration in the globalization era. The author generalizes challenges of globalization facing higher education. Then the author analyzes the threats and challenges to the national security of the state in the field of higher education in the globalization process.
Judiciary reform
Abdulvaliev A.F. - Prerequisites and perspectives of introduction an digital form of a criminal case into the activities of judicial bodies. pp. 150-164


Abstract: The goal of this work is to study a digital form of a criminal case and to establish the prerequisites for the use of this technology by the courts in judicial criminal procedure and establishing legal, technical and social barriers precluding its introduction.  The author uses analysis of criminal legal norms, federal target programs, opinions of legal scholars and practicing lawyers  on the possibilities for the introduction and use of modern digital technologies into the activities of judicial bodies as a method for his studies.  The author draws a conclusion that a number of scientists and practicing lawyers prefer new and progressive technologies  in criminal procedure, including in the form of digital criminal case. The federal target programs on development of the judicial system in the Russian Federation also contain a number of prerequisites, pushing the judicial reform to introduction of judicial case files.  In the opinion of the author it is more viable to form federal target programs for the pre-trial proceedings on criminal cases. The existing provisions of criminal procedural legislation on the use of modern technologies shall allow to test new digital cases within the next decade without the need for significant amendments of the Criminal Procedural Code of the Russian Federation. However,   there shall be a need for legislative regulation of the possibilities for the use of this technologies, to eliminate the barriers, and to resolve the problems which could appear due to introduction of digital criminal case file.
Judicial system: decision-making practices
Bakradze A.A. - Criminal law analysis of the Draft Resolution of the Plenum of the Supreme Court of the Russian Federation "On Judicial Practice on Cases of Bribery, Commercial Bribery and other Corruption Offences" pp. 165-180


Abstract: The author of the article holds Criminal law analysis of the Draft Resolution of the Plenum of the Supreme Court of the Russian Federation "On Judicial Practice on Cases of Bribery, Commercial Bribery and other Corruption Offences", and based upon the results of his study he provides some critical comments. In particular, criminal responsibility for bribery cannot take place no matter whether acts (failure to act) were premediated by bribe or agreement with an official on provision of bribe for an act.  The author offers to qualify receipt of part of valuables or starting to perform proprietary services as an attempted bribery (commercial bribery) in the amount provided by the intent of a perpetrator.  Receipt of money, stock shares and other property by an official or a manager of a commercial or other organization for taking acts (failure to act) in the sphere of its competence, or which he could have taken using his official position may not be regarded as bribe (commercial bribe) no matter whether he was intending to take these acts (fail to act). The article provides some further critical notes, which are aimed at optimizing the law-enforcement activity.
Conflict: tools of stabilization
Babin B. - The right to resist as a global right pp. 181-200


Abstract: The article concerns the right to resist (jus resistendi) as a collective global natural right, recognized by positive law at the national and international levels. The author studies historical sources and doctrinal concepts of this right, its reflection in current constitutional acts and the UN Resolutions. The value of this right for the formation constitutionalism is shown, the author also shows variations of its constitutional enshrinement.   The author also notes the role of implementation of the right to resist in the processes of the Ukrainian statehood formation, he defines the specific features of involvement of subjects of international law into guarantees of the right to resist. It is noted that the subject of the right to resist is the people as the bearer of other global rights, such as the right for development, the right to peace, the right to self-determination.  The author establishes the goal of the right to resist, and he proves the impossibility of reflecting the mechanisms of its implementation within the framework of positive law. The author also proves the presence of legal consequences of implementation of the right to resist on constitutional and international levels.
Anthropology of law
Bezgin V.B. - Sex crimes in the Russian provinces in the second half XIX and early XX centuries. pp. 201-246


Abstract: The article contains historical legal studies of the sexual violence problems in the provincial environment in the Russian Empire  in the second half XIX and early XX centuries. Based upon a wide range of sources, including judicial and investigative cases and ethnographic materials, the author provides analysis of various types of sex crimes in the rural areas, as well as their motives and rate of expansion.  The author analyzes the contents of the criminal legislation of the Russian Empire in the second half XIX and early XX centuries, as well as the responsibility for sex crimes,  he defines specific features of pre-trial resolution of rape cases in Russian villages.  He studied the phenomenon of "snokhachestvo" (sex between fathers-in-law and daughters-in-law), and its causes.  He establishes the attitude of peasants towards rape of women and underage children, incest, and various forms of sexual perversions (pedophilia, pederasty, zoophilia). He uncovers the factors influencing the growth of deviant behaviors in the Russian provinces.
Badikov K.N. - Psycho-dermal-glyphic profile of "serial" murderers. pp. 247-267


Abstract: Establishing the leading psychological qualities and conditions via psycho-dermal-glyphic method is a forensic innovation. This method is based upon the psycho-genetic patterns, as reflected in a system of papillary elements. It is established that application of psycho-dermal-glyphic method in crime investigation allows to establish psychological, motoric movement and intellectual characteristics of a person, who has left fingerprints at a crime scene. Minimization of trace prints at  a crime scene, growth of drug-related crimes and crimes by persons with psychic and neurologiacl pathologies served as prerequisites for the development of the novel statistic (mathematical) diagnostic and forecasting models within the framework of psycho-dermal-glyphic connections analysis.  Examination and analysis of elements of papillary lines in psycho-dermal-glyphic expertise correlates with specific features of mental make-up of a person.  Quantity and quality characteristics of papillary lines allow to gain maximum searching information out of minimal prints.
History of state and law
Kodan S.V., Fevralev S.A. - Situation, development and unification of the local law of the Little Russia and the Western Provinces (second half of XVII - first half of XIX centuries) pp. 268-295


Abstract: The "Little Russia" lands (in 1654- Ukraine  and the provinces taken from Poland;  in 1772-1807 - Belarus and Lithuenia (the Western Provinces) formed a national region with the sources of law, which were rather close to the Russian law.  The 1 and 2 Lithuanian Statutes were in force in it with some specificities.  In addition to them the "Little Russia Law"  was based upon the Magdeburg city law, the privileges of the Polish and Lithuanian kings, etc. The law of the Western provinces was not limited to the Lithuanian Statutes.  The Polish and Lithuaninan legislation were in force there. The attemtps to codify the "Little Russia" sources of law and to make the Code were taken since the fourth quarter of XVIII century. In 1743 a draft of codified law was made, and it was entitled "The Judicial Laws of the People of Little Russia", but it was not sanctioned by the government. The second attempt to codify the laws of the Western provinces took place within the framework of the Code of Laws of hte Russian Empire and the attempts to codify legislations of some provinces in special codes.  The official publication of hte Lithuanian Statute had followed.  In 1830-1838 the 2nd Division of the Chancery of Her Magesty brought up a draft of the Code of Local Laws of the Western Provinces, but this project was not approved by the crown due to political reasons and vast variety of its sources.  The process of unification of the legislations of the Little Russia and the Western provinces reflected the will of the Russian governemnt to dissolve the independency elements in the local governments of these regions and to unify the legislation in accordance with the all-Russian laws.  On January 1, 1831 the by an Order to the Senate  Tsar Nicolas the 1st has terminated the application of the Lithuanian Status in Belarus, and by the Order of June 25, 1840 the Tsar terminated its application throughout the Western province, while specific provisions in the Code of Civil Laws  (Vol.10 of hte Laws of the Russian Emprie of 1842 and 1857) were provided for its regulation.  Some specific provisions of the Lithuanian Statute remained only in Poltava and Chernigov Provinces due to the specific of the civil turnover, and the local law in the region practically ceased to exist.  The article concerns the aspects regarding integration of the people and territories of the Little Russia, Belarus and Lithuanian in the Russian state, which formed the basis for singling out the particular law in the Russian legal system.
Belkovets L. - Foreigners in the Soviet Russia (the USSR): regulation of their legal status and stay (1917-1939). Part 1. pp. 296-350


Abstract: The article contains analysis of legal status of foreigners in the Soviet Russia in 1920s - 1930s. The author provides analysis of domestic legislation, international treaties and special literature, as well as of Russian and foreign archives. The author then studies the general legal status of foreign citizens and some specific categories, such as workers and peasants, intellectuals (doctors, teachers, engineers, etc.). The author establishes the fact that in the RSFSR the foreign citizens had a wide scope rights, including political rights, such as electoral rights, civil rights, including proprietary, family and marital, labor relations, right to judicial protection. The author also studied special status of the German citizens in the USSR according to the treaty law, regime of their stay, order for entering and leaving the RSFSR and USSR for the foreign and Soviet citizens, the procedure of acquiry of the Soviet citizenship by the foreign nationals. The author also studies the novelties in the law on citizenship of 1938. The author then makes a conclusion that there was a national regime for the foreigners in Russia at the said period of time. It is reflect in almost full equality in rights provided to the foreigners residing in its territory "for labor purposes" and the citizens themselves. 
Practical law manual
Yarovenko V.V., Karataev A.V. - Criminological characteristics and urgent investigative actions on cases on unlawful hunting. pp. 351-377


Abstract: The article concerns the elements of criminalistic characteristic features of unlawful hunting, which allow to establish necessary information on every particular crime due to their similarities: criminal behavior of offenders, circumstances and mechanisms of perpetrating and concealment of criminal act, character and gravity of damage.  Combination of various methods of unlawful hunting usually appear due to the influence of various external factors at the place of crimes as well as to specific features of personalities of offenders.  After the crime the poachers often take measures to conceal the crime, which complicates the process of proving guilt of an arrested offenders.  When deciding to violate the hunting rules, a person counts upon hidden character of his acts, absence of witnesses, and destruction of traces of crime.  It is shown that timely and professionally performed urgent investigative activities, such as the examination of the crime scene, interrogation, arrest, search and seizure, judicial expertise allow to establish the fact of unlawful hunting of a suspect and degree of his guilt, character and amount of material damage, causes and circumstances of the crime.
Trofimets I. - Some problems regarding invalidity of marriage in accordance with the legislation of Russia, the CIS Member States and the Baltic States. pp. 378-454


Abstract: The article is devoted to the key problems regarding invalidity of marriage under the legislation of Russia, the CIS Member States and the Baltic States, as well as some other states.  The author studies topicali issues regarding the nature of institution of invalid marriage. The author analyzes the procedure for recognizing a marriage as an invalid one.  Nevertheless, the range of issues discussed by the author does not cover the entire list of legislative and practical legal problems in the sphere of invalidity of marriages.  It is noted in the article that any state is interested in healthy sustainable families.  The law forms various legal barriers against obviously inadequate marriages.  However, in spite of legal prohibitions, there are some violations when marriages are being concluded. The presence of fault in the marital conditions does not automatically make a marriage invalid, and some of these violations do not necessarily cause invalidity of marriage.
Legal and political thought
Kruchinin S.V. - Views on the processes of inter-ethnical integration (ideological opposition of Daniil Andreev and Samuel Huntington). pp. 455-479


Abstract: In this article the author uses analysis of views of a renowned American political scientist Samuel Huntington and an authentic Russian thinker Daniil Leonidovich Andreev in order to study conceptual approaches towards character studies and tendencies in the development of relations among nations and states within the framework of modern globalization and inter-ethnical integration of a human community.  The old mechanisms of ethnogenesis fail, and the global community undergoes painful transformations leading to the mutually opposing results, such as processes of integration and unification on one hand, and growing differentiation and separation of societies, revival of religious movements, separatism and fight for autonomy on the other hand.  All of the above is accompanied by both human tragedies and new steps towards modernization of the social structure.  In these conditions the new face of the global community is formed, and the goal of the study is to establish the balance of variously directed social and political events in order to establish the possible ways for the further development of the global community.
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