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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 10/2016
Contents of Issue № 10/2016
Shishko I.V., Damm I.A. - Fee-based participation of a government (municipal) official in educational advanced professional training programs: the issues of legality and competing interests pp. 1-9

DOI:
10.7256/2409-7136.2016.10.2030

Abstract: The research subject is Russian statutory instruments regulating a fee-based participation of government (municipal) officials in educational programs in the capacity of lecturers. The authors consider such aspects as the legitimacy of participation of government (municipal) officials in educational advanced professional training programs in the capacity of lecturers in their own time and for a fee, and the problem of competing interests. Special attention is paid to the study of the arguments of the supporters and the opponents of the consideration of such participation as complying with anti-corruption legislation. Educational organizations, dealing with educational advanced professional training programs, are intended to ensure continued high quality professional development of government and municipal officers of the Russian Federation. Advanced professional training presupposes the acquisition of a new qualification or (and) improvement of skills in the present one. Some aspects of an educational program are very specific and require wide experience. To ensure high quality education in its practical component, educational organizations invite government and municipal experts to participate in educational advanced professional training programs. Upon amending the article 10 “Competing interests” of the federal law No 273 “On combating corruption”, many experts, working as government officials, decide not to participate in educational programs or not to accept payment for their work as lecturers.The authors apply dialectical, system-structural, formal-logical and other methods of scientific cognition. The issue of compliance of the participation of government (municipal) officials in educational advanced professional training programs with the federal law “On combating corruption” is raised in the article for the first time after the adoption of the above mentioned legislative novels. Based on the provisions of educational, anti-corruption and labor legislation, the authors conclude that the participation of government (municipal) officials in educational advanced professional training programs in their own time and for a fee is legal and doesn’t cause competing interests. 
Договор и обязательства
Vasilchenko D.D. - On the influence of a corporate agreement on the will of the association pp. 10-21

DOI:
10.7256/2409-7136.2016.10.1999

Abstract: The research subject is the definition of the notion and the meaning of a corporate agreement concluded for the purpose of influencing the formation of the will of the association. The author defines the notion of a corporate agreement and points at the theoretical aspects of understanding of a legal entity’s will and the process of its formation. The research is aimed at the analysis of the possibilities which are provided by this agreement by means of application of corporate and non-corporate rights (acquisition or carve-out of shares or forgoing the carve-out) in this sphere. The author applies general scientific (analysis and synthesis) and special scientific (formal-legal and logical) research methods. The author comes to the following conclusions:Firstly, from the position of the subject matter, a corporate agreement is a bilateral or a multilateral deal, which:1. either is a beforehand defined way of influencing the process of the association’s will formation, if it is not concluded by all the members of the association;2. or contains the “quasi will” of the association if, firstly, the association is not public, secondly, all its members are the parties to the agreement.It is necessary to take into consideration that if in the first case the relations are regulated only by means of binding provisions, in the second case corporate legislation is also involved. But at the same time, in both cases the legally established procedures should be taken into account.Secondly, the author considers the provisions of an agreement, connected with the acquisition or carve-out of shares, as aimed at destabilizing relations between the parties to the agreement and supporting particular positions. The author notes that this agreement can be used for other purposes, not connected with the subject matter. 
Human and state
Gorian E. - Russia’s HIV/AIDS prevention concept: adherence to international standards or a “special historical path”? pp. 22-49

DOI:
10.7256/2409-7136.2016.10.2022

Abstract: The research object is social relations in the sphere of HIV/AIDS prevention in the Russian Federation. The authors analyze international standards, which should form the basic concept of this infection understanding. The authors study Russian legislation ensuring the guarantees of rights of persons living with HIV. Attention is paid to the judicial practice of the European Court of Human Rights, reflecting the advanced ideas of ensuring rights of persons living with HIV. In order to obtain the most faithful scientific results, the authors apply general scientific methods (system-structural, formal-logical and hermeneutical) and special methods of jurisprudence (comparative-legal and formal-legal). These methods are used as a complex. Russian HIV/AIDS prevention concept is conservative and consists in the declaration of the priority of traditional forms of social relations. Federal legislation is gradually moving towards liberalization of the status of persons living with HIV and extension of their rights. But discrimination against persons living in homosexual unions, consisting in the rejection of their right to family life in the sense of resolutions of ECtHR and mobility rights, is still taking place. The legislator’s disregard to the recent scientific researches, both Russian and foreign, which had proved the possibility of leading an active social and professional life by persons living with HIV, restricts their right to adoption (guardianship, etc.). In the result of the absence of the state educational program of sexual and reproductive health, schoolchildren and youth are not sufficiently informed about HIV and the ways of its prevention; this situation leads to stigmatization and spreading HIV among this population category.
JUDICIAL POWER
Lipinsky D.A., Stankin A.N. - On the role of the Constitutional Court’s judgements in the formation of the system of constitutional responsibility pp. 50-62

DOI:
10.7256/2409-7136.2016.10.1946

Abstract: The research object is constitutional responsibility as one of the key elements of civil society and a law-bound state. Based on the Constitutional Court’s judgements, the author develops the idea of the independence of constitutional responsibility as a form of legal responsibility. The author analyzes certain manifestations – constitutional responsibility measures: amotion and restriction of the right to vote. Such presentation of a problem can serve as an impetus for further studies in this sphere. The article substantiates the interdependence between civil society and a law-bound state. The author applies dialectical, comparative-legal and formal-legal methods, the system approach, the method of abstraction. Based on the judgements of the Constitutional Court of the Russian Federation, the author concludes that constitutional responsibility is not limited to the negative aspect; it also has a positive character which is not connected with constitutional offences. But without a negative side, the positive aspect becomes weak or meaningless, therefore negative constitutional responsibility serves as a means of ensuring positive responsibility.The judgements of the Constitutional Court of the Russian Federation assert and prove two blocks within the system of constitutional responsibility: the positive and the negative one. This division happens on the macro-level of constitutional responsibility. They also predetermine the division of constitutional responsibility on the macro-level into the federal constitutional responsibility and the responsibility of the territorial units of the Russian Federation. The micro-level of constitutional responsibility is characterized by such substitutes as the responsibility of: President, Government, Federal Assembly, and the responsibility in the sphere of constitutional relations. The study is supported by the Russian Foundation for Humanities, project No. 16-33-00017 “A comprehensive, interdisciplinary institution of legal responsibility: the concept, structure, interrelations and the role within the system of law”. 
Golovkova A.Y. - Constitutional judicial proceedings as a special circumstance of proving pp. 63-69

DOI:
10.7256/2409-7136.2016.10.2042

Abstract: The paper studies the influence of the specificity of constitutional judicial proceedings as a certain circumstance, used for legal matters resolving, on the process of proving, particularly, the subject of proving and the evidences. The author studies the peculiarities of the process of proving in constitutional legal proceedings and compares it with similar matters in other legal proceedings. The author notes that the understanding of proving and evidences, typical for the legal science, is limited to the approaches, established in relation to judicial proceedings aimed at resolving the matters of a fact. Using the system, comparative-legal and formal-legal analysis, the author outlines the central problem of the article. Based on the peculiarities of constitutional judicial proceedings, the author concludes that proving in this type of judicial proceedings doesn’t conform to a traditional understanding of proving in other branches of law; therefore, there is a necessity to develop a more detailed normative regulation of this very branch of procedural law, thus improving the mechanism of realization of the personal right to judicial protection by means of constitutional judicial proceedings. 
Law and order
Ivanova L.V. - Illegal psychiatric committal using official position: articulation of issue pp. 70-77

DOI:
10.7256/2409-7136.2016.10.2010

Abstract: The research subject is the provisions of the theory of criminal law on illegal psychiatric committal, the provisions of criminal legislation, imposing responsibility for such activity, particular legal provisions, regulating the grounds and the procedure of psychiatric care delivery in the Russian Federation, and the provisions of the resolutions of the Plenums of the Supreme Court of the Russian Federation on particular crimes involving the category of persons, who misuse their official positions. Special attention is paid to the possibility of commitment of this crime only by a person whose job is connected with deciding on psychiatric committal.The research is based on the system approach; the authors use the logical, normative-dogmatic and comparative-legal methods of cognition. The scientific novelty of the research consists in the study of the category of misuse of official position in relation to illegal psychiatric committal, and in the proposed qualification of actions of direct superiors of the psychiatrist. Taking into consideration that the subject of this crime is always very specific (the decision about psychiatric committal can be made only by a psychiatrist or a commission of psychiatrists), the reference to the “use of official position” in the part 2 of the article 128 of the Criminal Code of the Russian Federation, is excessive. All other persons, involved in the process of illegal psychiatric committal, under certain circumstances, are subject to responsibility as accomplices in a crime. The issue of responsibility of a psychiatrist and his direct superiors, who had influence his decision about illegal psychiatric committal, should be considered on the base of the psychiatrist’s guilt or the absence of circumstance excluding the criminal nature of the deed. 
Shurpaev S.M., Pitulko K.V. - Peculiarities of corruption-related crimes in the sphere of public procurement pp. 78-84

DOI:
10.7256/2409-7136.2016.10.2040

Abstract: The research subject is the peculiarities of rent-seeking behavior of officials, representing the customer, in the sphere of public procurement. Using the existing understanding of “kickbacks”, the authors prove that corruption cases in this sphere are not limited to illegal gratification for the opportunity to participate in procurement procedures. The authors substantiate the importance of studying rent-seeking behavior of officials, representing the customer, in the sphere of public procurement.  Using the set of general scientific methods and the methods of empirical research, the authors come to the conclusions of a particular scientific importance. The authors define the main forms of rent-seeking behavior of officials in relation to the stages of concluding and completing the government contract. The authors develop the structure of the resolution of the Plenum of the Supreme Court of the Russian Federation on the peculiarities of consideration of criminal cases of corruption–related crimes in the sphere of public procurement. The authors’ conclusions can be used for developing theoretical research and practice in this sphere. 
History of state and law
Telnov A. - Reputation as an intangible benefit and a legal phenomenon in the Old Russian law pp. 85-93

DOI:
10.7256/2409-7136.2016.10.2045

Abstract: The research subject covers the provisions of such historical legal documents as “Russkaia Pravda” (the Brief and the Extended versions) and the provisions of the Decree of Prince Yaroslav on church courts (12th – 13th centuries). The research object is the social relations in Ancient Rus in the 12th – the 13th centuries, connected with the infringement on reputation as an intangible benefit. The author analyzes the provisions of the Old Russian sources of law and demonstrates that, despite the absence of a direct legal consolidation of punishments for abuse of reputation as an intangible benefit, reputation as a legal phenomenon did exist in social relations of that period of time. The research methodology is based on general scientific and specific research methods: historical, theoretical, comparative-legal, the methods of analysis, synthesis and others. The scientific novelty of the study consists in the conclusion about the existence of such an intangible benefit as reputation on the base of the existing knowledge base in the sphere of Russian law history in its early stage of development (12th – 13th centuries). The author defines the cause-and-effect linkage of infringement on personal integrity as an intangible benefit, with other types of intangible benefits, such as honor and dignity, and a further negative impact on an intangible benefit of the higher level, such as personal reputation. The author reveals the criteria of definition of the degree of infringement on personal reputation, the consequences of such a violation depending on the social level of a person whose reputation has been damaged by unlawful actions. Besides, the author formulates the proposals about the improvement of current civil legislation in order to regulate social relations in the sphere of intangible benefits more effectively. 
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