Электронный журнал Юридические исследования - №10 за 2014 год - Содержание - список статей - ISSN: 2409-7136 - Издательство NotaBene
Legal Studies
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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 10/2014
Contents of Issue № 10/2014
Dolgikh I.P., Suponina E.A. - On Optimization of Certain Types of Administrative Punishments pp. 1-18


Abstract: This article is devoted to the important problem of the Russian administrative and tort law – the application practice of the most common administrative punishments in Russia – administrative fine, disqualification of an individual and administrative arrest. Despite the fact that almost thirteen years have passed since the Russian Code on Administrative Offences was adopted, this primary legal document regulating all matters related to administrative responsibility in this country still features serious legislative voids which adversely affect the situation with the legal order here. Many of such voids can easily be identified in Chapter 3 of the Russian Code on Administrative Offences dealing with administrative punishments. Methodologically, this article is based on the achievements of the cognitive theory. During the research, the general philosophical, theoretical methods (dialectics, systematic method, analysis, synthesis, analogy, deduction, observation, modeling), traditional legal methods (formal logic) and the methods used for case studies (statistical, expert review etc.) were used. The scientific novelty of the above research lies in the fact that the authors have, for the first time, studied the causes for the inefficiency of applying the types of administrative punishments which are the most common in the Russian Federation. The article proposes specific measures to be taken to improve the currently effective administrative and tort law aimed at further optimization as relates to lawmaking and law enforcement.
Трудовое право
Volokh V.A., Volodin E.V. - Employment Procedure for Foreign Nationals with Refugee Status or Temporary Asylum in the Russian Federation pp. 19-37


Abstract: In their article “Employment Procedure for Foreign Nationals with Refugee Status or Temporary asylum  in the Russian Federation”, the authors consider the problems of forced migration as relates to employment of foreign nationals with refugee status or temporary asylum  in the Russian Federation, the relationship between foreign nationals and the governmental authorities, local authorities, officials of such authorities, established in connection with the work carried out by such foreign nationals in the Russian Federation. The article deals with the problems associated with the registration of such persons by their employers with various authorities and the responsibility in the event of non-performance of such obligations. It describes the matters relating to the taxation of foreigners working in Russia and their duty to pay social contributions. It is noted that for today’s Russia, forced migration has become a problem which has not received sufficient attention or well-thought-through governmental decisions. The government’s inability to assist such forced migrants on a number of occasions results in non-performance of international obligations and lower international esteem of the country, while the non-regulated nature of the legal status of a significant number of foreign nationals and stateless persons increases the probability of crime and administrative offences. It is noted that foreign nationals which have the refugee status or temporary asylum  for employment purposes in the Russian Federation do not need to obtain a work permit and their employer or customer buying their work/services does not need to obtain the permission to employ foreign workers. At the time of being hired, the above category of foreign nationals cannot show their passports, therefore, pursuant to the provisions of Article 65 of the Labor Code, they produce their refugee certificate or the certificate of temporary asylum  respectively, the details of which their employer should include in the employment or civil-law contract. Both when entering into employment and when providing documentary support for employment of such employees, their employer should act pursuant to the provisions of the Labor Code. However, both refugees and the persons with temporary asylum in the Russian Federation remain foreign nationals, therefore, their employer should understand what to do with respect to such category of employees pursuant to the migration, tax laws and the laws related to social security.
History of state and law
Airikh V.A. - Creation of the Science of Police Law: New Touch-ups to the Old Portrait pp. 38-73


Abstract: This article attempts an additional review of the history of creation of police law as a legal science and a branch of jurisprudence which was originally created in Germany at the end of the 18th century. It delineates the police science from the police law. The article reviews certain individual provisions of the police manual of the city of Augsburg as amended in 1683 being the most typical example of legal documents which served as the source of the police law. It cites draft police codes of the Russian Empire and similar legal documents of German states of the 19th century. The article takes a note of the similarity between the problems related to the application of the above documents. The main method of the work performed is the source study and analysis of the police law documents and of the works on the police science and the police law written in the 16th - 19th centuries. Currently, it has become necessary to correct certain well-establish notions of the history of police science and police law due to the expansion of the source base and inclusion in it of the works which were not mentioned earlier in Russian literature or which did not get the attention they deserve from scientists. The analysis of such papers makes it possible to talk about the original division of the police law from the police science. The work of H. U. Ditmar published in 1731 should be viewed as one of the first scientific rationales for the police science, despite the commonly accepted opinion. The work of I. Goiman which came out in 1757 should be considered the first attempt at establishing the scientific foundation for the police law. In Russia, the first work on the subject of police law was the paper written by L. H. Iakob published in 1809 in Kharkov. The first police code of the Russian Empire was drafted by H. E. Globig in 1815.
Practical law manual
Nagornaya I. - Informed Voluntary Consent to Medical Intervention and Responsibility of Medical Personnel pp. 74-88


Abstract: The author analyses the legal regulation of obtaining informed voluntary consent to medical intervention from a person or person’s legal representative. Requirements for the form and substance of such consent are considered. It is pointed out that compliance with the former presumes due execution of the required documents and with the latter – informing the patient (the patient’s legal representative) about the purposes, methods of providing medical care, associated risks, possible options for medical intervention, its consequences and about the anticipated results of such medical care. Examples are given from court precedence related to holding medical personnel administratively and criminally liable in connection with violation of the statutory rules on obtaining the patent’s consent to medial intervention. The article analyses the matters relating to the responsibility of medical personnel for providing medical intervention without giving the patient the full details. The systematic analysis of the Russian law, court precedence and the Canadian doctrine and the position of the judicial authorities of Canada was carried out in order to identify any experience that may be applied to the Russian environment. The conclusion is made that it is reasonable to prepare the wording for specific essential elements of an offence which entail responsibility of medical personnel for non-observance of the patient’s right to receive the fullest possible information in an easily understandable form if the consequences of such non-observance are grievous bodily harm or other grievous consequences caused by the nature of the medical intervention and not by the guilty acts of the medical personnel. The mediсal personnel should select the communication manner which corresponds to the patient’s objective condition, age and ability to understand information while at the same time avoiding any unnecessary “intimidation” or underestimating the risks involved.
Теория и философия права
Kulikov E.A. - Category of Measure in Legal Science: Matters of Theory and Research Methodology pp. 89-99


Abstract: This article considers the general theoretical and methodological matters related to the research into the expression of the “measure” category in legal science. It gives a philosophical and semantic description of the meaning of this category. In particular, it reviews the linguistic palette of notions which the word “measure” may take in the Russian language. It analyzes the volume and contents of the category of “measure” in the legal environment. The basis for such analysis is the interrelation between law and measure which may be traced in virtually every type of legal consciousness. Also, it defines the methodological pre-requisites for the research into the expression of measure in the legal aspect of the society’s life. Ultimately, the subject of research is the general regularities of the connection between the category of measure and legal phenomena, which should in the future serve as the foundation for tracing particular expressions of the category in question in the components of the legal framework in the society.  In this article, the legal and dogmatic, the comparative methods, the synthetic method, the abstraction technique, and the legal history method were used. This article is one the first studies of the theoretical matters related to the expression of the category of measure in legal science. The author attempts to define the methodological pre-requisites for considering the legal aspects of the above category. The article identifies the legal contents and relationship between measure and the key categories of legal studies – the law, the legal framework, the principle of law, the legal culture. On the basis of the above, it presents the general theoretical model of expressions of measure in legal phenomena. Measure is interpreted by the author as a universal qualitative and quantitative category which characterizes legal phenomena externally, internally and in their individual structural elements. In doing so, it is also essential to rely on the qualitative and quantitative components of measure without separating them from each other.
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