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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 12/2015
Contents of Issue № 12/2015
Human and state
Fedotova Y.G. - The limitation of rights and freedoms of citizens and organizations in the interests of protecting the constitutional order and ensuring the state’s defense and security pp. 1-18

DOI:
10.7256/2409-7136.2015.12.1703

Abstract: The article is devoted to the legal limitation of rights and freedoms of citizens and organizations in the interests of protecting the constitutional order and ensuring the state’s defense and security. The author describes the nature of the modern military threats, demonstrates the need for citizens’ participation in ensuring the state’s defense and security in order to combine the efforts of the state, the society and the person, aimed at protecting the Russian Federation, and defines the meaning of the limitation of rights and freedoms in the interests of protecting the constitutional order and ensuring the state’s defense and security as the element of the legal status of citizens and organizations. The author analyzes the concept and the content of the limitation of rights and freedoms of citizens and organizations in the interests of protecting the constitutional order and ensuring the state’s defense and security. The author proposes the scientific approach to defining the limitation of rights and freedoms of citizens and organizations in the interests of protecting the constitutional order and ensuring the state’s defense and security as a basic element of the legal status of the person, reflecting the limitations, the conditions and the procedure of implementing rights and freedoms; on the basis of this analysis the author describes principles, requirements, forms, ways, conditions (grounds) and subject composition of the limitation of rights and freedoms of citizens and organizations. The author reveals the legal means of the limitation of rights and freedoms of citizens and organizations which are demonstrated in the form of a system according to the level of increase of their impact on the subject of limitation. 
Law and order
CHESTNOV N.E. - Issues of differentiation between the violation of rules of navigation and other crimes against military service, and criminal legislation improvement pp. 19-51

DOI:
10.25136/2409-7136.2015.12.16641

Abstract: The article studies the approaches to the differentiation between the violation of rules of navigation and other crimes against military service. The existing system of punishment for the violation of rules of navigation doesn’t allow objective using of the existing capacities of the Criminal Code of the Russian Federation for imposing criminal liability on military servants. On the base of comparison and analysis of the current provisions of criminal legislation of the Republic of Kazakhstan, Ukraine and the Republic of Moldova, the author proposes the amendments to the articles of the current Criminal Code of the Russian Federation in relation to imposing criminal liability for the violation of rules of navigation. The author applies the methods of analysis, synthesis, induction, deduction and formalization. The proposed amendments will allow extending the opportunities of application of various measures of criminal punishment to the subjects of crime, according to the form of military service, the responsibility level of a military servant, defined by the functions, and the gravity of the guilt. The author proposes the amendments to the Criminal Code of the Russian Federation in relation to imposing criminal liability for the violation of rules of navigation. 
State institutions and legal systems
Zolotareva A.B. - Is the present system of procurement centralization rational? pp. 19-41

DOI:
10.7256/2409-7136.2015.12.1732

Abstract: As compared with the previous legislation, the Federal law "On the contract system in procurement of goods, works, and services for the state and municipal needs" expands the regulation of procurement centralization. Russia's regions and municipalities retain the freedom of choice of the model of centralization: from preserving customers' authorities to select the supplier, to delegating all such authorities to the special government body; with regard to state agencies, the centralization of other procurement functions is allowed. The article contains the analysis of models of centralization, applied in Russian regions, and their comparison with the approaches to the centralization of procurement in the developed countries. The author applies traditional legal methods of comparative legal analysis and the systems analysis. In the result of the analysis, the author comes to the conclusion that the existing degree of procurement centralization is excessive and inefficient, and proposes the improvement of legislation on centralization for solving the revealed problems. 
Jurisprudence
Fat'yanov I.V. - Lawmaking experiment: a method of cognition or a method of legal regulation? pp. 42-71

DOI:
10.7256/2409-7136.2015.12.1756

Abstract: The subject of the study is the method of lawmaking experiment, considered from various viewpoints, particularly, lawmaking experiment as a method of cognition and a method of legal regulation. The author denotes the role of experiment as a scientific method. The article emphasizes the fact that the sense of lawmaking experiment lies in the combination of methods of practical and theoretical, sensual and rational; therefore, the process of experiment unites a complex system of interactions of a mixed nature. The author concludes that the experiment, possessing specific features, can be considered both as a method of cognition and as a method of legal regulation in the context of its function of settling relations on a particular territory and in a particular time period. The object of the research is social relations, emerging during experiments. The author applies general scientific and special methods of cognition, including the dialectical approach to the objective reality cognition. For revealing the essence of experiment the author uses the existing philosophical ideas about the notion “experiment” and the definitions from jurisprudence, related to the method of legal regulation, lawmaking and legal method. The author also applies general scientific methods, including analysis, synthesis, deduction and induction, generalization, abstraction, extrapolation, the systems approach and others. The author concludes that there is no universally recognized definition of the notion “lawmaking experiment method” in the modern jurisprudence. The author states that traditional theoretical and methodological approaches to the understanding of the process of lawmaking experiment as a method not always can help form the adequate theoretical models, conforming with the current state of law. Lawmaking experiment has common features with the practice; it influences the society, helps transform it; law doesn’t merely determine the content of such an experiment, it serves as its important component, a basis. The lawmaking experiment method is also an instrument of legal relations efficiency increase; its use helps choosing the most perspective variant of a lawmaking decision. The cognitive function of lawmaking experiment consists of sub-functions, including the prognostic, analytical and etiological functions. On the other hand, the orientation towards the legal regulation is not only the most important function of lawmaking experiment, but also its integral characteristic. The methods and mechanisms of lawmaking experiment don’t merely study a particular legal problem, but influence the legal institutions of the state, executing legal regulation; don’t only study legal relations, but also regulate them, thus performing the dynamics of legal relations; the orientation towards legal regulation is at the same time the most important function and an integral characteristic of lawmaking experiment. Lawmaking experiment can be considered as one of the methods of lawmaking, since lawmaking experiment should be based on the fulfillment of the following task: formation of a perfect legal model by means of influencing the subject of the study. Lawmaking experiment can also be considered as a specific element of the mechanism of legal regulation of social relations. The need for the various understandings of lawmaking experiment will help attract the attention of the subjects of the experiment, the scholars and theorists to this legal method’s impact on the Russian law. 
Договор и обязательства
Kolieva A.E. - Experience of fiduciary legal relationship development pp. 52-71

DOI:
10.25136/2409-7136.2015.12.16587

Abstract: The article considers the grounds of trust relationships in foreign and Russian legislation in the sphere of estate administration and commercial representation, describes the evolution of Russian law in relation to ownership, use and disposal of state property, and demonstrates the difference between the classical property rights and the right of operative management and management of affairs. The article characterizes some models of fiduciary legal relationships in various legal systems; particularly, the author considers the models of fiduciary legal relationships in the continental and Anglo-Saxon legal systems. The author applies the methods of abstraction, synthesis, analysis, induction, deduction and formalization. The author concludes that the models of fiduciary legal relationships in the continental and Anglo-Saxon legal systems demonstrate their conformity to the main principle: the divergence between their outward form and the real economic content. The analysis of the historical experience of fiduciary legal relationship development allows, on the one hand, making sure of the difficulty of the legislation development, and of the closeness of the relation between the economic structure of the society and the policy of the state in the sphere of economic management. On the other hand, despite the relative stability of legal regulation of these relations, ensured by the Civil Code of the Russian Federation, it’s hard to affirm that these relations have formed once and for all. 
Теория и философия права
Timofeev E.A. - The multiformity of methodology of law and economics pp. 72-87

DOI:
10.7256/2409-7136.2015.12.1669

Abstract: The subject of the research is law and economics, a highly authoritative teaching in the Western science, not enough studied in the Russian scientific literature. Due to its heterogeneity and incompleteness, and the dynamic character of change of the research agenda, law and economics consists of a range of relatively independent theories and branches. Their multiformity and interconnection is the object of the research of this review article. The basis of the methodology is the comparative approach and the method of classification, which helped systematize schools and theories of law and economics according to particular criteria. In the result, the author demonstrates the systemic description of the main existing forms of law and economics, which, despite their immanent differences, resulting from the heterogeneity of primary premises, are the single and a highly promising horizon of interdisciplinary studies. Moreover, the application of various methods within the described variants of law and economics broadens the already significant scientific opportunities of this teaching, thus giving the researcher the opportunity to choose the most relevant method of the particular practical task solving. 
Tsar'kov I.I. - Classical science of the modern period and the law: the experience of borrowing pp. 88-117

DOI:
10.7256/2409-7136.2015.12.1714

Abstract: The article is devoted to the issues of interrelation of processes of the modern classical science and the modern classical law (17th – 20th centuries) development. The author substantiates the idea that these two processes had been intersecting. Moreover, the classical law had borrowed principles and methods from the natural sciences of the Age of the Enlightenment and the modern period. This borrowing helped the thinkers formulate the notion of the state sovereignty in its contemporary meaning. The author of the article applies the methods of hermeneutical analysis, the comparative-legal method, the historical method and the method of transcendental analysis. The author concludes that the concept of the absolute legal sovereignty and the idea of the law as the precondition for the shortest way of achievement of social, economic and political goals by individuals are formulated on the base of the provisions of theoretical mechanics in the field of political and legal knowledge. The law is the means of obstacles eliminating.
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