Politics and Society - rubric Law and human rights

Abstract: The subject of this research is the legal norms applied to the surrogacy program as an independent institution that requires a separate place in the system. The object of this research is the social relations arising in the sphere of surrogacy procedures for future parents, as well as protection of the rights of a child born from artificial insemination. Special attention is given to such aspects as the surrogacy contract, registration of a child born to a surrogate mother, court opinion on the refusal to register a child born to a surrogate mother, and right of a single father to register a child born to a surrogate mother. The novelty of this article lies the analysis and examination of case law dedicated to the practical and theoretical problems of using surrogacy. The definitions are provided to the concepts of surrogacy and surrogate mother. Recommendations are made on the amendments to family and civil legislation by introducing norms that would regulate and determine the legal nature of surrogacy contract, norms on the child’s registration by the genetic parents who are not legally marries, as well as norms that to regulate the rights and responsibility, legal status of the father of a child born to a surrogate mother.

Keywords: law, legal regulation, family law, embryo, child, genetic parents, biological parents, surrogate motherhood, paid provision of services, contract

DOI: 10.7256/2454-0684.2021.4.33876

Abstract: This article is dedicated to examination of the phenomenon of right-authoritarian personality (RWA), or more specifically, the theoretical, methodological and applied use of this concept within the framework of Giorgio Agamben’s concept of the "state of emergency". This study reveals the intolerance and lack of flexibility of an increasing number of people in modern Russia as deliberately cultivated by the state apparatus for the more effective ideological and hybrid military confrontation with many countries of the world. This provision is interpreted as the "state of emergency", in which according to the theory of Giorgio Agamben, punitive measures can be applied against the citizens bypass the law. Personality is viewed through the prism of actualization by the situation of the "state of emergency" of the authoritarian right-wing traits within its structure that contribute to the maintenance of totalitarian tendencies in the society. The scientific novelty consists in examination of the role and nature of the impact of social transformations defined as emergency upon actualization of the right-authoritarian traits in the structure of personality. Verification of the hypotheses is carried out in the course of empirical research with the use of various questionnaires for determining certain preferences in the cultural and social spheres of life, as well as what can be perceived as the social threat by right-wing authoritarians in the conditions of the “state of emergency”. Particular attention is given to the mechanism of actualization of right authoritarian tendencies in a person, as well as to the analysis of Giorgio Agamben’s concept of the “state of emergency”. Examination of this concept from sociological perspective is a long-run objective. The are no similar studies in the Russia science; thus, it is of particular interest to consider the results of analysis based on certain peculiarities in Russia.

Keywords: Authoritarian submission, Authoritarian aggression, Russia, authoritarianism, social continuity, exclusion space, state of exception, right-wing authoritarianism (RWA), Conventionalism, Traditsionalizm

DOI: 10.7256/2454-0684.2018.11.27949

Abstract: The object of this research is the combination of social relations associated with ensuring security of public health from rendering illegal medical and pharmaceutical services. The subject of this research is the norms of criminal legislation aimed at preservation of social relations, namely the Article No. 235 of the Criminal Code of the Russian Federation that stipulates criminal responsibility for engaging in illegal private medical practice or private pharmaceutical activity without having a license. The author explores the evolution of such composition of an offence, as well as models the prospects for its modernization. Methodological foundation contains the principles of objectivity, Interdisiplinarity, determinism, historicism, systematicity, structuredness, functionality, hierarchy, pluralism, comparativism, explanation and comprehension of law; as well as the private legal methods of legal analytics, legislative technique, legal comparativism, legal modelling and forecasting. The article also analyzes the composition of an offence, effectiveness of penal prohibition, as well as quality of the norm of criminal law. The conclusion is made that in its current iteration, this norm cannot efficiently reflect such penal prohibition of the illegal realization of pharmaceutical and medical activities; therefore, the author suggest revising the Article No. 235 of the Criminal Code of the Russian Federation.

Keywords: harm to human health, criminal liability, licensing, pharmaceutical activity, medical activities, public health, right to health, criminal law, medical education, pharmaceutical education

DOI: 10.7256/2454-0684.2017.2.18361

Abstract: The subject of this research is the normative legal acts of Russian Federation that regulate the limitation of rights of psychiatric patients. The author examines various legislative acts and jurisdiction regarding the psychiatric evaluation, as well as housing of psychiatric patients in the Russian psychiatric hospitals. The work also reviews multiple violations of rights of this category of patients expressed in decisions of the European Court of Human Rights. The major questions in legislative regulation and realization of rights of the psychiatric patients, including the legislative innovations, are revealed in the article. The result of the research determined that violations of the limitation of rights of the psychiatric patients occur due to the imperfection of legislation regulating the order of providing medical assistance, hospitalization, restriction or deprivation of their competency. The author introduces the suggestions of improvement of the national legislation that regulate the rights of the aforementioned category of citizens, as well as speaks of the need to develop the criteria of determination of disorientation of psychiatric patients.

Keywords: restriction of rights, violations of rights, psychiatric patients, rights, Russia, legislation, court decisions, conflicts of law, psychiatric examination, competence

DOI: 10.7256/2454-0684.2018.1.25226

Abstract: This article is dedicated to the analysis of exercising rights of the incarcerated disabled people to accessible environment and improvement of living amenities in detention facilities. Prior to the ratification by the Russian Federation of the UN Convention on the Rights of Persons with Disabilities, the correctional facilities were not properly equipped for the disabled people, nor there were instructions on the need for providing the technological infrastructure and accessibility of the objects of the penal system. After the ratification of the aforementioned convention, has been adopted a federal program “Accessible Environment” about the rights of the persons with disabilities within the correctional facilities, considering their needs. Based on the analysis of the Russian legislation, legal precedent of the European Court on Human Rights, foreign experience of organizing incarceration for punishment, the author underlines the existence of gap in definition of the “improvement of living amenities” within the Penal Code of the Russian Federation, and suggests to amend the corresponding penal legislation: in engineering and reconstruction of the buildings, constructs, and other complexes to ensure the requirements in observance of rights of the incarcerated disabled people to accessibility of the facilities and objects; train the penal system personnel in working with the incarcerated disabled people; create the specialized penitentiaries for the disabled people in the Russian Federation.

Keywords: improved living amenities , work of convicts, imprisonment, accessible environment , rehabilitation, incarcerated disabled people, serious illness, correctional facility, convention, ratification

DOI: 10.7256/2454-0684.2014.2.11019

DOI: 10.7256/2454-0684.2014.2.54196

Abstract: By studying the case of restriction of rights and freedoms of smoking citizens, the author of the present article analyzes whether it is permissible for the state to restrict constitutional rights and freedoms for the sake of achieving their goal to protect rights and freedoms of other citizens and common interests in general. Based on the analysis of foreign legislation and practice of constitutional courts in the countries of former Yugoslavia (Macedonia, Slovenia and Croatia), the author of the article describes the main criteria for restricting rights and freedoms and performs evaluation of their constitutionality including: legitimacy of the purpose of such restriction, necessity of such restriction and proportionality. In his research the author mostly uses the technical legal method and combines it with the method of comparative analysis. Special attention is paid to the so called ‘strict test of proportionality’ used by the Constitutional Court of Slovenia to defi ne the level of admissibility of restriction of the constitutional rights and freedoms. At the end of the article the author conclude that the constitutional justice authorities in these countries try to maintain an adequate balance between the rights and freedoms of individuals and legal rights and freedoms and common interests without absolutizing any of them.

Keywords: constitutional rights, anti-smoking law, smokers’ rights, FSU region, Constitutional Court, Constitution, principle of proportionality, principle of rationality, strict test of proportionality, restriction of rights.

DOI: 10.7256/2454-0684.2014.4.11917

DOI: 10.7256/2454-0684.2014.4.54220

Abstract: In social studies and social work the development of the social help is usually described as the linear and humanistically oriented process which is defi ned by the human nature. The semiotic approach allows to solve an essentially new problem in this sphere, i.e. to reveal dynamics of social and cultural targets of the social help based on the example of Russia in the period since the XVIII till XXI centuries. The author uses the concept of the social help offered by Niklas Luhmann as the theoretical basis of her research, therefore, such forms of the social help as a gift, mercy or service rendered by social organizations are considered. The primary function of the social help as a gift is the control over border between "the ours – theirs" and restoration of the world balance through restoration of resources of a specifi c person. In this case the relations with the ‘theirs’ are based on the formula "If… then" (offered by Yury Lotman). This form of the social help is regulated by customs and rituals. According to Dmitry Zelenin, in the culture of eastern Slavs this type of help remains at the beginning of the XX century as well. The analysis of the social help as a mercy allows to conclude that it also had a sacral focus but under the conditions of monotheism the traditional formula was replaced by the "delivery into the power" (Yury Lotman). The help as a mercy was regulated by religious standards and performed the function of transferring the most important qualities of the person and hierarchical social communications. Appearance of the social help as a service was caused by introduction of the concept of a police state, creation of system of public assistance and application of legal regulation. The main function of the social help as a service is to highlight situations that can weaken or destroy social bonds and relations of an individual. It is thus emphasized that in Russia at the beginning of the XX century there were prerequisites for establishing professional help as a service which however were not realized because of political transformations. At the end of the article the author considers the change of social and cultural targets of the social help in socialist and social states.

Keywords: social help, help as a gift, help as a mercy, help as a service, semiotic approach, targets, police state, social state, social work.

DOI: 10.7256/2454-0684.2015.5.15032

Abstract: The subject of the research are the legal provisions, which create the basis for the succession under the will, as well as the examination of the legal framework and theory of civil law, defining the essence, typology and peculiarities of implementation of the principles of the succession under the will alongside with analysis and systematisation of the problems of Russian legislation and legal theory regarding the systematisation and peculiarities of implementation of the principles of succession under the will.At the same time, legal theory lacks comprehensive research on the principles of succession under the will, which also adds relevance to the chosen topic.The methodological basis of the research is comprised by the latest achievements of the cognitive theory. General philosophical, theoretical, empirical methods (dialectics, systematic approach, analysis, synthesis, analogies, deduction, observation, modelling), as well as traditional legal (formal logical) methods were applied in the course of the research. At the same time, the comparative law method has been used, which allowed to conduct the analysis of the foreign legislation and the experience of implementation of the principles of succession under the will. The academic novelty of the research involves the fact that the examination of the conditions of the legal theory and the peculiarities of the implementation of the principles of succession under the will has provided the basis for a comprehensive analysis of the features of the studied field and the proposal of some theoretical and practical recommendations regarding the problems existing in the legislation, as well as author's own view of some debating points in the civil law theory.

Keywords: succession law, system, principles, civil rights, provisions of civil law, public relations, legal rights, testator, socio-economic vector, succession

DOI: 10.7256/2454-0684.2015.5.54388

Keywords: succession law, system, principles, civil rights, provisions of civil law, public relations, legal rights, testator, socio-economic vector, succession

DOI: 10.7256/2454-0684.2015.5.15188

Abstract: At present, the problems of people with disabilities have acquired special urgency. Around the world, the number of such people is growing, there is already more than a billion of them. Also, 9% of the population of our country are people with disabilities. In Russia there is no institution of ombudsmen for the rights of the disabled, therefore, protection of the rights of people with disabilities lies within the powers of the ombudsmen for human rights. The object of the study are the rights of the disabled in Russian Federation and its federal subjects. The purpose of the research is the analysis of the fulfilment of the constitutional rights of persons with disabilities in Russia and the development of proposals for its improvement. The subject of the study are the activities of the public authorities of the Russian Federation and its federal subjects on observation and protection of the rights of persons with disabilities, as well as the control over these activities on the part of the state constitutional human rights mechanism - the Institute of Ombudsmen, which is relatively new for the Russian realia. The main research method is comparative legal analysis of activities on observation and protection of the rights of persons with disabilities in different regions. The novelty of the research involves the exploration of the new approaches related to the ratification of the UN Convention on the Rights of Persons with Disabilities by Russian Federation in 2012, as well as the analysis of the subsequent recent changes in federal and regional legislation. A special contribution of the author to the research consists of both theoretical study of the problem in different regions of the Russian Federation, and practical participation in protection of the rights of persons with disabilities in author's own region.

Keywords: socially vulnerable strata , The UN Convention, accessible environment, social security, welfare state, rights of the disabled, human rights activist, human rights, protection of the disabled, the disabled

DOI: 10.7256/2454-0684.2015.5.54389

Keywords: socially vulnerable strata, The UN Convention, accessible environment, social security, welfare state, rights of the disabled, human rights activist, human rights, protection of the disabled, the disabled

DOI: 10.7256/2454-0684.2015.6.15588

Abstract: The topic of the research is the influence of the character of a certain duty or a norm of behaviour on the subject's attitude towards the violation of those. Special attention is paid to the possibility that the subject realises that a violation may lead to more or less serious external changes. The article considers direct and indirect influence of a person on the result, which becomes extremely important in connection with the negligent form of guilt. The article analyses the norms of the French criminal law that demonstrate close connection between objective and subjective features which helps to create the fullest image of a negligent crime. The types of negligence according to the French law cannot be mechanically placed in the Russian realia. However, the analysis of the French experience facilitates the understanding of negligent crimes committed in the Russian Federation, and helps to get closer to the solution of certain problems of their qualification. Considering the issues of criminal liability for negligent crimes in Russia, it could be helpful to separate negligence based on its degree (severity) - namely, to simple and severe. Severe negligence takes place under violations of the duties that obviously threaten the secured values of the victim. Simple negligence is not connected with such violations, which complicates the realisation of the possible consequences that requires additional efforts. Further development can either wholly depend on the subject (in this case the connection between his action and its consequences is admitted to be direct) or be to a large extent determined by the behaviour of the third parties and other factors (in this situation, the subject influences the result only indirectly). The analysis of Russian legal precedents regarding the crimes both connected with improper performance of professional responsibilities or not, allows to distinguish typical situations that require different criminal legal evaluation. It is suggested to create a list (a catalogue) of such situations, based on the expert knowledge in different areas of professional activities. The article also separately examines the situations that do not give evidence of severe negligence, which only indirectly contribute to the result. The article raises question of impossibility of criminal prosecution in these cases. The analysis of Russian legal precedents regarding the crimes both connected with improper performance of professional duties or not, allows to distinguish typical situations that require different criminal legal evaluation. It is suggested to create a list (a catalogue) of such situations, based on the expert knowledge in different areas of professional activities. The article also separately examines the situations that do not give evidence of severe negligence, which only indirectly contribute to the result. The article raises question of impossibility of criminal prosecution in these cases.

Keywords: negligent crime, France, Russia, professional duties, judicial practice, recognition of public danger, causality, negligence, criminal liability, parental duties

DOI: 10.7256/2454-0684.2015.6.54402

Keywords: negligent crime, France, Russia, professional duties, judicial practice, recognition of public danger, causality, negligence, criminal liability, parental duties

DOI: 10.7256/2454-0684.2015.6.15593

Abstract: The present article conducts a retrospective analysis of the origins of the institute of witnesses in the Russian Federation. The author consistently reveals the main stages in the establishment and development of this institution. It was found out that the starting point for public involvement in the criminal proceedings at the legislative level was the 1649 Council Code, while the 1864 Charter of Criminal Proceedings can be considered to be the foundation for the development of the existing institute of witnesses. In addition, the author separately studied the provisions of the Criminal Procedure Codes of the RSFSR and the Criminal Procedure Code of the Russian Federation. In preparation for the work general scientific methods of research were applied, such as analysis, synthesis, induction, deduction, as well as special research methods, including historical, comparative legal and formal-legal. The author mainly focuses on the currently topical regulations regulating the involvement of citizens as witnesses in criminal cases. The positive and negative aspects of the adoption of the Federal Law №23-FL dated March 4, 2013 have been analysed. It is concluded that the activity of the witnesses is still widely ranged, due to the lack of the necessary clarifications of the new law.

Keywords: reform of the criminal process, investigative actions, institute of witnesses, participants of criminal proceedings, criminal proceedings, criminal procedural law, technical means of fixing, publicity, legislative problems, investigator

DOI: 10.7256/2454-0684.2015.6.54403

DOI: 10.7256/2454-0684.2015.7.15989

Abstract: Inclusion of the Republic of Crimea and the federal city of Sevastopol as federal subjects of the Russian Federation is an unprecedented phenomenon for Russian civil legislation. The subject of the present research is the issue of the legal regime of property that belongs to another state - Ukraine, that is presently located on the Russian territory. The goal of the study is to search for the best ways to fill the gaps in the Russian legislation in the field of the nationalisation procedure. The continuous lack of a nationalisation law stipulated the elaboration of many corresponding bills. The review of those is also a goal of the author of the present article. The issue of the valuation of property to be nationalised has been considered. The methodological basis of the research are dialectic, historical, logical, system-structural and concrete sociological approaches. Special scientific methods, such as formal legal, comparative legal, etc. are widely used in the study. The academic novelty of the research is defined by the original analysis of the opinions of civil law scholars, established Russian civil legislation, as well as the drafts of legislative acts in the studied area. The author expresses his evaluation of the existing ideas regarding the changes in the legislation in the mentioned field. The author suggests adopting a framework federal law that would in detail regulate the nationalisation procedure; he also specifies the range of things that cannot be objects of nationalisation. The issue of valuation of the nationalised property has been considered in an innovative way.

Keywords: the value of nationalised property, forms of alienation of property, property of foreign residents, property of the Russian Federation, nationalisation object valuation, nationalization object, nationalisation, Republic of Crimea, framework federal laws, confiscation

DOI: 10.7256/2454-0684.2015.7.54415

DOI: 10.7256/2454-0684.2015.8.16021

Abstract: The object of the present study is the question of how such geographical settings as territorial remoteness and transport accessibility influence the criminal procedure. The author attempts to consider the essence of geographical determinism and its role in the criminal procedure, in particular - its impact on the stage of judicial proceeding. The author thoroughly examines the issues of the access to justice for the participants of the criminal procedure (the victim, the witness and the defendant) who live in places isolated from the trial's location and in regions with poor transport infrastructure. Methodologically and theoretically the present study is based on the comprehensive analysis and systems approach to the examination of verdicts containing data about special geographical settings that influenced the judicial proceeding. There are separate examples of how the territorial remoteness impacts the legal relations in the field of criminal law and penal law. Academic novelty of the study lies in the examination of influence of certain aspects of geographical determinism on the criminal procedure. These studies allow the author to make judgements regarding the necessity to improve the criminal procedure legislation of Russian Federation in order to regulate various procedural acts, taking into account special geographical settings, as well as the expediency of further research on geographical determinism as a factor that to some extent impacts criminal and criminal procedural relations.

Keywords: victim, court, criminal procedure, transport accessibility, territorial remoteness, geographical determinism, geographical factor, witness, defendant, procedural costs

DOI: 10.7256/2454-0684.2015.8.54431

Keywords: victim, court, criminal procedure, transport accessibility, territorial remoteness, geographical determinism, geographical factor, witness, defendant, procedural costs

DOI: 10.7256/2454-0684.2014.9.13074

DOI: 10.7256/2454-0684.2014.9.54283

Abstract: The article discusses the issues related to the application of the rules about relief from criminal responsibility set by Part 2 of Article 761 of the Criminal Code of the Russian Federation. Based on the established rules of the relief from criminal responsibility, the author analyzes grounds and conditions for application of these rules as well as problems that may arise as a result thereto. In particular, the author analyzes the questions about the list of crimes Part 2 of Article 761 of the Criminal Code of the RF is applicable to as well as the compensation of damage as a condition for relief from criminal responsibility. The author studies the reasons why Part 2 of Article 761 of the Criminal Code of the RF sometimes cannot be applied to particular practical causes including punishment for economic crime. The article is based on the technical method of analyzing the practice of the application of rules about relief from criminal responsibility set forth by Part 2 of Article 761 of the Criminal Code of the RF. The author also uses the statistical method for evaluating the effi ciency of the application of these rules. According to the author, the latest version of Article 761 of the Criminal Code of the Russian Federation fails to be effi cient which is caused by such factors as a super high measure of damages, one’s inability to contest this measure of damage before the court, low effi ciency of work performed by law enforcement agencies leading to frequent expirations of the statute of limitations, relatively soft sanctions of the criminal law which makes it more advantageous for a convict to undergo punishment rather than compensate the damage. Taking all these circumstances and factors into account, the author offers amendments to the existing criminal law to make these rules actually effective.

Keywords: Relief, criminal responsibility, crime, sphere of economic activity, harm, profi t, damage, large scale, active repentance, legal consequences.

DOI: 10.7256/2454-0684.2015.9.11697

Abstract: The subject of the research are theoretical provisions and norms of criminal procedure legislation that regulate special procedure of a legal proceeding if the defendant agrees with the filed charge and the plea agreement, which also influences the check and evaluation of the evidence when criminal cases are conducted according to such procedure. In this aspect special attention is paid to the peculiar features of the evidentiary activities, because it was the evidence that was subject to the major changes under the special procedure of a legal procedure after the procedure was facilitated. This point is justified by the fact that the court always requires analysis and check of the files of criminal investigation. A basis for that is the evaluation of the evidence present in the case. Furthermore, quality, fullness and universality of the evaluation of the evidence by the court influences legitimate, justified and just decisions the court makes regarding the case, so the aim of criminal procedure is reached due to the facilitated form of criminal procedure. Methodologically the research is based on dialectic essentialism and universal principles of scientific cognition, such as the requirements of objectivism, concrete historical approach, unity of theory and practice, as well as provisions of the dialectic method which allows to reflect the process of how the assumptions qualitatively become verifiable knowledge. Apart from that, general and specific scientific methods were used in the research: systems, comparative legal, logical and analytical, as well as purely logical methods: analysis, synthesis, induction, deduction, analogy and hypothesising. The academic novelty of the research lies in the fact that it conducts scientific and practical analysis of the legal nature of a special procedure of a legal proceeding and of the problems connected with the evidence in this facilitated procedure. In particular, the author formulates his approaches to the major problems of evidence in criminal procedure from the point of view of the philosophy of activity, justifies the feasibility and necessity of the investigation of the criminal case files by the court in order to establish the issue and hand down a decision according to the factual circumstances of a particular case.

Keywords: preliminary charge, Prisoner's dilemma, self-incrimination, special prejudicialness , special truth, special procedure, deal, admission of guilt, interdictions , cut interrogation

DOI: 10.7256/2454-0684.2015.9.54448

Keywords: preliminary charge, self-incrimination, special prejudicialness, special truth, special procedure, deal, admission of guilt, interdictions, cut interrogation

DOI: 10.7256/2454-0684.2014.11.13356

DOI: 10.7256/2454-0684.2014.11.54308

Abstract: The main topic under research is the balance of private law and public law rounds in the process of regulation of consumer rights protection in the sphere of economics. The author insists that at the present time Russia cannot refuse from state control over consumer rights protection because the most of public law acts usually precede private law acts in this sphere. The author studies both legal aspects of regulation of relations between consumer and entrepreneur and judicial practice on the matter. The methodological basis for the research involves general scientific (analysis, analogy and system) and special legal research methods. The scientific novelty of the research is due to the fact that the author shows an unconditional need for the influence of public law grounds on regulation of any relations involving consumers. As a result, the author concludes that the mechanisms of public protection of consumer rights are conditioned by the interests of the entire society, recognized by the state and lie in the basis of the economic development. According to the author, the fact that it is necessary to raise the role of state in consumer rights protection is proved by the development of the Russian society itself. In the Russian society restriction of these or those private interests lead to achievement of the public wealth, satisfaction of public needs, guarantee of a stable civil (trade) turnover.