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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 05/2017
Contents of Issue № 05/2017
Human and state
Neganova E.N. - The role of the correct definition of the object of prosecutor’s supervision over the observance of housing rights of orphaned children in guaranteeing effective supervision pp. 1-11

DOI:
10.7256/2409-7136.2017.5.22627

Abstract: The legislative novels introduce the concept of the object of prosecutor’s supervision in such spheres as supervision over law enforcement and observance of human and civil rights and freedoms. The legislative regulation of the object of prosecutor’s supervision determines the research task - to define the essence and the role of the correct formulation of the object of inspection. The correctly defined subject of prosecutor’s investigation and prosecutor’s supervision over the rights of orphaned children determines, firstly, the effectiveness of supervisory activities of the prosecutor, and secondly, the scientific substantiation and validity of the performed supervision in a certain sphere. The correct definition of the object of prosecutor’s investigation and supervision by public prosecution officers determines the achievement of the goal of effective inspection and supervision. The research methodology is based on general scientific methods of dialectical materialism, generalization and analysis, and special scientific method of comparative jurisprudence. The legislatively introduced principle of effective organization of “general” supervision, applied also to the sphere of observance of housing rights of orphaned children, should be taken into account on all stages of supervision, including supervision in the mentioned sphere, and during scientific studies. “General” supervision effectiveness criteria and indexes can be supplemented with such a component as a correctly defined and formulated object of prosecutor’s inspection and supervision. 
History of state and law
Tribushkova K.M. - The origins and the development of the real burden institution in Russian civil law pp. 12-19

DOI:
10.7256/2409-7136.2017.5.22623

Abstract: The article considers the development of one of the most controversial proprietary institutions – the real burden right. The author analyzes the formation of this concept in Russian law and considers particular provisions of the Patrimony charter and the Civil Code of the Russian Empire, containing information about this institution. The author pays special attention to the fact that real burden right doesn’t originate from Roman law, it is a result of German civil theory of the 19th – the 20th centuries. The author applies the historical method, the method of system and complex analysis, and the method of comparative jurisprudence. The author reveals and systematizes particular stages of development of real burden right in Russian law. The author formulates the periodization of development of this concept, consisting of five stages, and each of them is characterized by unique peculiarities. 
Practical law manual
Evteev K.I. - Topical aspects of ascertainment of guilt of persons, responsible for controlling debtors pp. 20-30

DOI:
10.7256/2409-7136.2017.5.22673

Abstract: The research subject is the provisions of the Federal Law of 26.10.2002 No 127 “On bankruptcy” with regard to legislative consolidation of reasons for the imposition of subsidiary responsibility on persons, controlling debtors. The research object is social relations, arising in the process of imposition of subsidiary responsibility on persons, controlling a debtor, with regard to ascertainment of their guilt for his/her inability to fulfill commitments. The purpose of the research is to reveal the problems of ascertainment of guilt of persons, controlling debtors, at bankruptcy. The author considers such topical aspects of this problem as the criteria of negligence and irrationality, the methods of assessment of rationality and fidelity of persons, controlling a debtor, and the moment of appearance of an obligation to take into account creditors’ interests. Special attention is given to the prospects of transformation of Russian legislation with account for the existing foreign experience in this sphere of social relations. The author applies general scientific and specific methods of cognition of phenomena and processes, including dialectical method, formal-logical, and comparative-legal methods. The scientific novelty consists in the comparative-legal analysis of the problem aspects of ascertainment of guilt of persons, controlling a debtor, at bankruptcy. The author concludes about the necessity to raise the question about practicability of legislative specification of the criteria of irrationality and negligence of the behavior of persons, controlling a debtor, for the purpose of reduction of the sphere of application of value judgements. The results of the study can be applied in law-making and judicial practice. 
Damm I.A., Ron'zhina O.V., Tolstikova I.N., Popov A.V., Tabakova I.N., Petrovykh N.N., Akunchenko E.A., Sukhareva K.S., Shchedrin N.V. - Topical issues of changing the procedure of incomes, expenditures, assets, and liabilities disclosure by persons serving as municipal officials pp. 31-51

DOI:
10.7256/2409-7136.2017.5.22713

Abstract: The research subject includes Russian statutory instruments, regulating disclosure of incomes, expenditures, assets, and liabilities by persons, serving as municipal officials, their spouses, and underage children. The authors study the legislative novels, introduced by the Federal Law of 03.04.2017 No 64 “On amending particular statutory instruments of the Russian Federation for the purpose of improvement of state anti-corruption policy”. Special attention is given to the content of new procedures of disclosure of incomes and expenditures, open access to such information, reasons for inspection, and the lack of a formalized procedure of initiation of a legal action by the highest official of the territorial unit of the Russian Federation in case the fact of providing unreliable or incomplete information on incomes and expenditures has been detected.The authors apply general scientific method of dialectical cognition, and the set of specific methods: historical-legal, system-structural, comparative-legal, formal-logical methods, deduction, induction, definition and division of a notion. The authors detect the problem of legal uncertainty of disclosure of information on incomes, expenditures, assets and liabilities by persons, serving as municipal officials, according to the new procedure, adopted in 2017, due to the lack of procedures in territorial units of the Russian Federation. The article considers the key advantages and disadvantages of different ways of providing information on incomes and expenditures, the problems of its further publication and storage, and the issues of legal regulation of the reasons for initiation of inspection by the highest official of the territorial unit of the Russian Federation. The authors formulate the proposals about the formation of regional legislation, regulating the procedure of disclosure of information about incomes, expenditures, assets, and liabilities by persons, serving as municipal officials, according to the new procedure, and about the improvement of the current federal legislation. 
International law
Romanov R.V. - Proof standards at the pre-trial phase in international criminal courts and tribunals pp. 52-62

DOI:
10.7256/2409-7136.2017.5.22630

Abstract: The paper analyzes the standards of proof applied at the pre-trial phase of proceedings in international criminal courts and tribunals. The author raises the problem of differences in the procedures of various international institutions of criminal justice at the pre-trial phase of the proceedings; reviews the set of standards of “prima facie proof” and “reasonable grounds to believe”; considers the requirements for issuing the arrest warrant and preliminary confirmation of a letter of accusation. The proof standards analysis is based on the practice of international criminal courts and tribunals. The research methodology is based on general scientific methods of cognition: structural-logical, formal-logical, dialectical, deductive, inductive, system analysis, and specific methods: historical-legal, logical-legal, comparative-legal, formal-legal, and the system-structural approach.The key research methods are analysis and comparative analysis: the author analyzes judicial practice of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court. The author approves the thesis that further development of regulation of proof standards, applied at the pre-trial phase, will help develop an effective mechanism of protection of rights of the accused and raise requirements to prosecutor’s investigation. The author formulates the essence of proof standards, applied at the present time in different institutions of international criminal justice, and suggests regulating the time limit for detention prior to confirmation of accusation at the pre-trial phase of the procedure. The formulated essence of proof standards can be used in discussions about the possible adaptation of proof standards to the realities of Russian procedural law and for preparation and submission of procedural documents in international institutions of criminal justice. 
Договор и обязательства
Churilov A.Yu. - Analysis of the models of a third party’s impact on the dynamics of a civil debt according to Russian legislation pp. 63-70

DOI:
10.7256/2409-7136.2017.5.22906

Abstract: The paper considers the main models of a third party’s impact on the dynamics of a civil debt and classifies them. The classification is based on a combined criterion including two elements: the first element consists in the third party of the debt; the second element reflects the peculiarities of the interests of the participants to the debt relationship, which is implemented with the involvement of the third party to the dynamics of the civil debt. The author detects two basic models of the third party’s impact on the dynamics of the civil debt: I model – the participation of the third party in performing the obligation on the side of the debtor; II model – the participation of the third party on the side of the lender. The research methodology is based on general scientific (descriptive, logical, system-structural, historical, linguistic methods, analysis and synthesis) and specific methods of jurisprudence (historical-legal, formal-legal, comparative-legal and technical-legal methods). The author concludes that the involvement of a third party usually leads to the transformation of some attribute of the proper performance of the obligation, for example, a place, a person, a subject or a time period. Thus, a contract, based on the model with the benefit of a third party, contains the transformation of such attributes of the proper performance as a proper person and a proper place. The peculiarities of involvement of a third person in the dynamics of an obligation depend on the character of the obligation: the third person can participate in the dynamics of both contractual and non-contractual obligations, including improper profit, delict and maintenance obligation. It’s important to understand that the involvement of the third party on the side of a debtor or a lender doesn’t form active or passive plurality of persons in an obligation. 
Andryushchenko A.V. - Organizational agreement as a general contractual construction pp. 71-84

DOI:
10.7256/2409-7136.2017.5.22926

Abstract: The research object is the category of organizational agreements in Russian civil law. The research subject includes certain problems of the theory of organizational agreements. Special attention is paid to the problem of defining the legal nature of organizational agreements and the feature distinguishing them from other civil contracts. The author reveals particular shortcomings of one of the classifications of civil agreements, developed by civil law, which is represented by organizational and property agreements. The author considers such aspects of the issue as the possibility to apply general obligatory provisions to organizational contractual relations with particular emphasis on the possibility to use various ways of protection of contractual rights. The research methodology is based on general scientific methods (dialectical, system, inductive, deductive) and specific methods of jurisprudence (functional, system, formal-logical). The author concludes that an organizational agreement is not a contractual type of agreement; it should be considered as a general contractual construction based on one feature, distinguishing organizational agreements from other civil agreements. The criterion for distinction is the presence of organizational legal relationship as a qualifying relationship (i.e. responsible for the qualification of the agreement). The author substantiates the necessity to formalize the general contractual construction of an organizational agreement and to formulate the common rule of protection of organizational rights, which can be applied to any agreement based on the organizational agreement model. 
Questions of current interest
Zolotovskaya E.A. - Life and health insurance as an element of a credit agreement: problems of law enforcement pp. 85-92

DOI:
10.25136/2409-7136.2017.5.23226

Abstract: The research subject is the problem of a borrower’s life and health insurance as a security element of a credit agreement (personal insurance contract). The author studies the effectiveness of insurance as a security measure, guaranteeing the performance of obligations by the parties to a consumer loan agreement, and analyzes the problems of application of such measures. The author analyzes the factual goals of a personal insurance contract, which don’t correspond with the goals of this type of contracts if used for the purpose of a consumer loan obtaining. The research methodology includes the analysis of law enforcement practice in the disputes over the nullification of the insurance conditions of credit agreements and the dissolution of credit agreements, based on the comparative-legal and the logical methods, analysis and synthesis. The problems under study are vivid in the law enforcement practice connected with the provision of the freedom of citizens in deciding over the conclusion of insurance contracts. The author concludes that at the present time, there’s no standardized judicial practice in this category of disputes; often courts pass contradictious judgements on alike issues. 
Договор и обязательства
Bogdan V.V., Alymov A.A. - Problems of implementation of consumers’ rights to fair conditions of credit contracts: the insurance term pp. 93-99

DOI:
10.25136/2409-7136.2017.5.19089

Abstract: The authors give special attention to the problem of imposition of insurance services on consumers in credit contracts. The inclusion of a borrower into the insurance program together with the conclusion of a credit contract is a wide-spread practice of imposition of a hidden financial burden on a borrower, since such insurance services are fee-based. Banks, which have no right to provide insurance, act as mediators. The authors consider the procedure of conclusion of credit contracts containing the insurance term, and the judicial practice in this field of civil law. The authors use the methods of analysis, abstraction and specification, and define the conditions of effective law enforcement for contestation of credit contracts containing the insurance term. The scientific novelty of the study consists in the proposed ways to solve the problem of illegal imposition of insurance services on a consumer when concluding a credit contract. The authors conclude that the analysis and the proposals, formulated in this paper, can be used for further improvement of the legislation on consumer’ rights and citizens’ rights protection. 
Practical law manual
Bronnikov A.M. - Pledge of rights of corporate members and the procedure of their implementation on public markets pp. 100-106

DOI:
10.25136/2409-7136.2017.5.19969

Abstract: The research subject is the set of legal provisions aimed at the regulation of relations in the field of pledge of rights of corporate members, the practice of their application by antimonopoly service and courts, and the set of theoretical provisions about pledge. The author analyzes the problem of the legal nature of pledge over shares of an LLC’s registered capital, outlines topical legal problems, and offers the ways to solve them. The author also raises the question of realization of this subject of pledge on public markets. The research methodology is based on the set of general scientific and specific methods of jurisprudence such as analysis, synthesis, specification and abstraction, the comparative-legal, formal-legal, technical-legal, sociological methods, and the method of legal modeling. The scientific novelty of this study consists in the fact that though there are particular works on this topic, the issue of pledge of rights of corporate members hasn’t been studied sufficiently enough yet. Based on the analysis of sources, normative acts, judicial practice, and the practice of public marketing, the author offers concrete measures for the solution of particular legal problems, connected with pledge over shares of companies and their further realization on public markets for the purpose of meeting the liabilities to creditors. 
Теория и философия права
Rerikht A.A., Dubovik O.L. - Differentiation between criminal and administrative responsibility: theoretical grounds and practical consequences pp. 107-123

DOI:
10.25136/2409-7136.2017.5.22748

Abstract: The authors analyze the prerequisites and conditions of differentiation between criminal and administrative responsibility for the breach of legal regulations. The paper considers the problems of codification of criminal and administrative legislation with account for the experience of the Russian Federation and particular foreign countries. The authors reveal the positive and negative consequences of different models of legal regulation of responsibility for infringement of legislation. The paper describes the positions, established in Russian works on jurisprudence, on the concepts, the essence, and the peculiarities of legal, criminal, and administrative responsibility, their correlation and roles in the provision of legality and order. The authors compare the volumes of different types of punishment, primarily fine sanctions, specified in the Criminal Code of the Russian Federation and the Administrative Offences Code. The authors discuss the problem of reforming the legislation on criminal responsibility and responsibility for administrative offences caused by the changes of socio-economic conditions and modern challenges in the sphere of crime prevention, which have led to the new decriminalization phenomenon. The paper considers the examples of the legal mechanism of formulation of criminal-legal and administrative-legal prohibitions. The authors discuss whether it is reasonable to toughen repressions, and consider the tendencies of replacement of the liberal criminal regulation with stricter measures and of blurring of lines between criminal and administrative responsibility. 
Frolov A.N. - Law and legal conscience: the dialectics of reciprocal influence pp. 124-132

DOI:
10.25136/2409-7136.2017.5.22954

Abstract: The piece considers the dialectical peculiarities of reciprocal influence of law and legal conscience. The author reveals the categorical characteristics of the notions “law” and “legal conscience”, defines their essence and correlation. Special attention is given to the features of law and the structure of the system of law. The author analyzes the essential characteristics of law and the forming and formalizing rules of behavior helping detect the normative and compulsory character of legal norms, and the formulated legal system of social and legal regulation creates the necessary prerequisites for the formation of legal conscience. The study is based on the methods of axiological, normative and comparative-legal analysis. To study the theoretical background of legal conscience, the author uses the dialectical, system, and logical approaches and other methods, which help define the peculiarities of the phenomena under consideration. The author concludes that legal conscience is a set of subjective legal components: legal attitudes, feelings, emotions, theories and ideas connected with the reflection of legal norms, rights, freedoms and duties. Their purpose is to provide normative behavior of a citizen within a society and in relations with a state. They help reflect the legal reality and evaluate the background of legal practice and law, comprehend the prospects of development of legal life from the position of provision of a decent life for each person and fairness of interpersonal relations. 
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