Электронный журнал Юридические исследования - №9 за 2016 год - Содержание, список статей - ISSN: 2409-7136 - Издательство NotaBene
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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 09/2016
Contents of Issue № 09/2016
State institutions and legal systems
Fomicheva O.A. - On the issue of legislative initiative implementation pp. 1-12


Abstract: The research subject is the mechanism of legislative initiative implementation. The author studies the problems of lawmaking as a basis for the legislative process in the State Duma and regional legislative bodies of the Russian Federation. The author formulates the following tasks: to identify the lawmaking elements on the stage of legislative initiative development and the mechanisms of their realization. The key component of a draft law idea implementation is the methodology of jurisprudence. The author studies the ways and mechanisms of legal instruments. The application of general scientific research methods helps the author to conclude about distinguishing the lawmaking procedure of legislative initiative into two interrelated stages. The research element of this issue is the absence of a detailed mechanism of legal regulation of law making. The analysis of theoretical and statutory sources allows defining the problems of implementation of a lawmaking mechanism in the process of legislative initiative development. The author outlines the problems of implementation of this type of a lawmaking idea and offers solutions. For example, the decisions of the Constitutional Court of the Russian Federation as an idea and lawmaking targeting are the first stage of the lawmaking process on the stage of legislative initiative. 
Parfenov A. - The review of the foreign legislation in the sphere of language testing for the purpose of foreign citizens integration into the receiving society pp. 13-40


Abstract: The paper considers the issues of language and sociocultural integration of migrants in different European countries. The author analyzes the legal provisions concerning the compulsory linguistic integrational tests for the majority of migrants coming to the receiving country, and the minimum requirements to the level of communication skills of foreign citizens and stateless persons applying for any legal status. The author demonstrates the unified classification of formalized requirements to the command of the official language and the sociocultural background of the receiving society depending on the migration goals. The author reviews the legislative bases of nine European countries: Austria, Great Britain, Germany, Spain, Italy, the Netherlands, Finland, France and the Czech Republic, and concludes that in various situations in all the countries under consideration a foreigner should confirm the command of the national language and sometimes the cultural background of the receiving country. Consequently, the development of the modern Russian legislation concerning compulsory language tests and the knowledge of the history of Russia is in line with the European migration policy trend. The results of the study can be used for a further detailed consideration of the mechanism of legal regulation of social relations dealing with Russian as a foreign language. 
Nasonov S. . - The European models of proceeding in jury trials: jury trial in Austria (comparative legal study) pp. 41-52


Abstract: The article is devoted to the specificity of proceeding in jury according to the Austrian CCP, adopted in 1975 (with amendments of 2016) as a kind of a European model of this procedure. These features are considered from a comparative legal aspect and compared with the same procedure, contained in the Russian CCP.Proceeding in jury trial in Austria is an example of a continental type of this form of hearing of a case, and this is a factor conditioning the significant differences between this procedure and the same one established by the Russian CCP. The presiding judge possesses a wide discretion in the field of proving. The features of the judicial enquiry in jury in Austria are the following: examination of evidences begins with the questioning of the accused; the procedures of examination of evidences of the defense and the prosecution are equal; a wide examination of information about a personality of an accused before the jury. The article notes the specificity of a stage of putting questions before the jury (there exist four types of questions), the specificity of the summing-up of the judge (he gives it in the jury-room and doesn’t speak on a factual side of a case), the specificity of the jury's deliberation when they have to give a short explanation of their answers, and the opportunity of a panel of professional judges to attend the jury's deliberation. The article suggests the possibility of reception of certain elements of the Austrian model of proceeding in jury trial by the Russian legislation.
Idirov Y. - The legal status of an investigating judge in the Republic of Kazakhstan pp. 53-57


Abstract: The research subject is the legal status of an investigating judge, introduced in criminal procedure in the Republic of Kazakhstan in 2015. The author describes the range of potential problems with the order of service of an investigating judge according to the Criminal Procedure Code of Kazakhstan; gives the examples of court practice of West Kazakhstan region. The author specifies the problems within an investigating judge’s jurisdiction, his competence and authority to consider the cases on a pre-trial stage. The author applies various research methods including the general scientific and the comparative ones. The author offers establishing the period of service of an investigation judge for improving stability and creating the scope of judicial practice. The author emphasizes that the election of an investigating judge by the judges from among their colleagues, instead of the appointment by the court president without regard to the opinion of the judiciary, would be one of the first steps on the road to establishing elective judiciary in the country. 
Law and order
Filimonov A.A. - On the issue of the correction of persons sentenced to the deprivation of right to occupy certain posts or to engage in certain activities pp. 58-67


Abstract: The author considers law enforcement aspects of the deprivation of right to occupy certain posts or to engage in certain activities. The author pays attention to the importance of officially consolidated criteria (respect for a person, the society, labor, regulations, rules and traditions of the society) of the correction of the sentenced for their further resocialization. The author notes that in order to form the abovementioned features during the service of sentence, it is necessary to take into account the individual characteristics of the sentenced, particularly the demographic, social, criminal, penal and others, and their formed attitude to the rules, norms and traditions. The author applies the formal logical method, the system analysis, comparative jurisprudence, questioning, interviewing, polling and the statistical method. The author concludes about the necessity to formulate the part 1, article 9 of the Correctional Code of the Russian Federation in the following way: “The correction of the sentenced persons is the instillation of respect for a person, the society, labor, legal regulations, morality and other social norms, rules and traditions of the society, aimed at the provision of law abiding behavior and the achievement of the goals of criminal sentence. The correctional impact on the sentenced should take into account his individual demographic, criminal, penal and other characteristics. The administration of the correctional facility applies the measures, prescribed by the penal legislation, stimulating the law abiding behavior of the sentenced person”. 
Usynin V.V. - Problems of criminal responsibility for illegal organization of gambling including those types of it held via the Internet pp. 68-74


Abstract: The article considers the problem issues of criminal responsibility imposing on persons organizing or holding illegal gambling and its participants. The author analyzes criminal cases initiated in the Republic of Khakassia, Krasnodar krai and Tomsk region, outlines the main features of organized crimes, thus helping conclude about the necessity to improve the legislation by means of defining additional responsibility of all the guilty parties. The author considers such aspects as distinguishing the concepts of organization of, holding of and participation in illegal gambling. The author studies the recent practice of criminal procedure and preliminary investigation. The analysis on criminal legislation and the practice of application of penal instruments against illegal gambling demonstrates the absence of a proper legal consolidation of a prohibition of gambling. The author proposes the amendments to the Criminal Code which would improve combating illegal gambling. 
International law
Gorian E. - Sex education within the system of international legal guarantees of human rights and freedoms pp. 75-94


Abstract: The research object is social relations in the sphere of human rights and freedoms ensuring. The author studies international legal instruments providing the right to sex education as a personal rights and freedoms guarantee. Sex education is considered as a guarantee of children’s, girls, women’s and migrants’ rights protection. The author emphasizes the role of sex education for combating HIV/AIDS, outlines the necessity to apply the comprehensive approach to education based on the understanding of sexuality as a sphere of human potential. The author studies the role of a corporate sector and social, particularly, religious, organizations for ensuring sex education as a human rights and freedoms guarantee. The author applies the set of general scientific methods (system-structural, formal-logical and hermeneutical) and special methods of jurisprudence (comparative-legal and formal-legal). They are used as a complex. The author comes to the following conclusions. Each person possesses the right to sex education regardless of his or her age and sex, and women and children have special guarantees of its enjoyment due to their vulnerability. International standards provide for an active cooperation of state bodies, the society, educational institutions and parents in the implementation of this right. Sex education is aimed at guaranteeing a whole range of human rights and freedoms, the violation of which leads to teenage pregnancies, infant and maternal mortality, gender violence, sexual exploitation and the spread of HIV. International sex education standards are developed with the involvement of internationally recognized experts in various fields of science (medicine, psychology, pedagogics, sociology, statistics, etc.) with the help of evidence-based methods making them an effective instrument of human rights ensuring. 
History of state and law
Shirko T.I. - The problems of legislative regulation of local authorities organization in Russia in 1990 – 1992 pp. 95-106


Abstract: The research subject is the system of Russian legislation regulating the organization and work of local authorities in 1990 – 1992. Since the late 1980s, the attempts have been made in the USSR to regulate the issues of legislative guaranteeing of local authorities’ work by means of amending and altering the current legislation. The author considers the dynamics and contradictions of Russian lawmaking in this period and analyzes the legal concepts of local authorities reforming. The generalization and interpretation of the results are carried out on the base of general scientific principles of historicism, objectivity and systematicity. The author applies the comparative-legal, formal-legal, historical-genetic and historical-comparative methods. The research methodology is based on the modernization theory and the concepts of structural-functional analysis, the theories of separation of powers, federalism and the institutional approach. The author concludes that in 1990 – 1992, despite all the legislative efforts, the conceptual legislative base, ensuring the organization and activities of local authorities, hasn’t been created. The author pays particular attention to the contradictions between legal norms and new demands of state development in statutory instruments. The author notes that the main concept of development of the legislation in that period was the integrity violation within the legal system, the attempts at its de-sovietization in the context of preservation of the conceptual framework of the socialist legal system, the breach between the legislation and its practical implementation, the borrowing of legal institutions without understanding of their importance for the state system. 
Теория и философия права
Rouvinsky R.Z. - Imaging the Limit: Degradation of the Legal System's Basis and Crisis of Legal Order pp. 107-118


Abstract: The article considers the problem of a potential possibility to describe the maximum crisis of the legal order. The author raises the question of a culmination point of the crisis in the legal sphere leading to the defragmentation of the legal system. He analyzes the interrelation between the legal order and the legal system, reveals common elements in these phenomena and defines the factors of the legal order dynamics and the structures underlying it. The article contains three parts. The first one is devoted to the problem of equating the legal system crises to economic crises. The second one considers the factors of the legal order dynamics influencing its condition and development trends, the connection of the legal order with the legal system. The third one analyzes the existential and historical background of law and the possibility of the maximum crisis of the legal order. The research methodology is based on the set of materialistic and civilizational approaches to the phenomena under consideration. The author applies the comparative-legal, system, analytical and dialectical methods, the method of historical and political interpretation of legal phenomena, and the method of prognostication. The article raises the issues which hadn’t been raised before within the Russian or the foreign legal science. The author introduces the notion of “onto-historical basis of the legal system”. This notion covers the range of the most stable structures underlying any legal system (the matrix of ideas about good and evil, just and unjust, the legal mentality of the society, the established traditions of lawmaking and law enforcement, etc.). The author concludes that the disruption of the fundamentals of the legal system, comprising its onto-historical basis, is inseparably linked with the maximum crisis of the legal order. 
History of political and legal doctrines
Goncharov V.V. - Socio-political and historical transformation of global constitutionalism in the modern world pp. 119-136


Abstract: This article is devoted to the study of socio-political and historical transformations of global constitutionalism in the modern world. The author substantiates the position that, on the one hand, global constitutionalism as a social and philosophical concept is a purpose of the socio-political and historical transformations of socio-political and state-legal organization of the society in a planetary scale, affecting their practical implementation in the life of the society, and on the other hand, the practice of implementation of the above mentioned transformations in the national states of the modern world has an impact on global constitutionalism as a social-philosophical concept transforming it as a system of knowledge socio-philosophical and political-legal nature.The article examines the main tasks of the socio-political and historical transformations of the socio-political and state-legal organization of the society in a planetary scale, determined by the objectives of global constitutionalism as a social-philosophical concept.The author analyzes the transformation of global constitutionalism as a socio-philosophical concept in the socio-political and historical terms as a system of knowledge of a socio-philosophical and political-legal nature. The author applies the methods of scientific knowledge: epistemological, ontological, methods of formal logic, dialectical, statistical, comparative legal, abstract-idealistic and specifically historical.
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