Vol 4, No 4 (2018)

The article deals with the political and legal aspects of ensuring the legitimacy and legality of public power in its constitutional parameters. The analysis of the relationship between the characteristics of legitimacy and legality of public power is given, the conclusion is made about the self-interested use of the legally uncertain concept of legitimacy in political practice in relation to Russia. The institution of elections is characterized as a tool to increase the legitimacy of power in the state, the relative nature of their influence on the degree of legitimacy of power due to the existing practice of manipulation in the conduct of elections. Attention is drawn to the fact that elections to the authorities may be a formal measure of the legitimacy of the government, but this does not mean that the government has real (actual) legitimacy. First of all, the elections should ensure the legality of power as the basis for the formation of the trust of people, which is transformed into the legitimacy of public power as a whole.

The article is focused on the definition of legal personality of the President of Russia, in the aspect of the separation of powers. Scientific disputes about the place of the President of the Russian Federation in the system of separation of powers are considered, the concept of legal personality of the President of the Russian Federation is given, his powers are considered. It is concluded that the legal personality of the President of the Russian Federation is aimed at ensuring the legal personality of other subjects of legal relations. The need to guarantee the legal personality of all public authorities is manifested both in a sufficiently large amount of constitutional powers of the President of the Russian Federation, and in his close interaction with other public authorities, and first of all – the Executive one. It is not so much the scope of authority as the end result that is important. Therefore, the President of the Russian Federation, acting as a special coordinator in the system of separation of powers, is constitutionally obliged to function within the limits that allow the state mechanism to function effectively.

The article deals with the problems of legal regulation of various forms of parliamentary control, including «government hour», parliamentary investigation, parliamentary inquiry, reports of the Government to the Federal Assembly of the Russian Federation. The authors analyze the effectiveness of parliamentary control in the Russian Federation, suggesting its increase through the mechanism of responsibility of officials of the Government of the Russian Federation. Proposals aimed at further improving the institution of parliamentary investigation were made. The position concerning problems of implementation of the Institute of expression of no confidence by the State Duma to the Government of the Russian Federation from the point of view of constitutional law implications of this decision is considered. In this regard, the authors believe that in case of expressing distrust to the Government of the Russian Federation further decision on the dissolution of the State Duma or the resignation of the Government of the Russian Federation should be attributed to the jurisdiction of the judicial body.

This article proposes to get acquainted with a wide range of issues on the substance of corruption, the organization of an effective system of combating corruption in Russia, to analyze ways of combating corruption in public administration. In order to update the materials, the latest data from studies conducted by international specialized organizations and Russian expert communities are presented. The materials presented to the reader will help to form an idea of the nature of corruption, the legal and social content and forms of corruption, the modern policy of state in the field of combating corruption. The article also provides an overview of the latest studies of country studies, which allows to form a new knowledge of the high degree of relevance and diversity of the problems of combating corruption in most modern countries.

In the article the new institute of electoral law, the “mobile electioner” (the voting of electioneer on the place of location, not living or indwelling) and the experience of its application on the elections of the President of the Russian Federation on the 18th of March 2018, additional elections of the State Duma of the Federal Assembly of Russian Federation deputies of the seventh convocation on single member constituency and elections of highest executives of the Russian Federation subjects on the single day of voting on the 9th of September 2018 are analyzed. Positive and negative aspects of this institute`s practice into election campaigns are distinguished. The conclusion about the importance of this legislative novelty is made, some ways of its perfection are proposed. The procedure of realization of active electional right by assistance of attaching the electioneer to the site on the place of location, its terms and the order of this procedure is described. The conclusion about the importance of this legal novelty for citizen`s active electoral right`s provision is made, few ways of its perfecting and correcting some detected during its application lacks are offered. The question about some features of «mobile electioneer» using during the holding of region election campaigns is risen.

In the article a retrospective analysis of the development of the Russian judicial system is presented. The main legislative innovations in the criminal and civil court system are considered: the emergence of appeal and cassation courts of general jurisdiction, Court of intellectual property rights, the abolition of the Supreme Arbitration Court of Russia. On the basis of studied legislation in recent years assumptions were made about the future directions of judicial reform. Thus, the increasing role of the Supreme Court of Russia makes it possible to draw a principle conclusion about the need to review its powers, to leave it the function of control of lower courts in terms of compliance with the uniformity of law enforcement practice as well as the exclusion of supervision from the number of courts. As well as the transfer of courts of general jurisdiction in the three-tier system, while maintaining the possibility of consideration of cases in the first instance for three types of courts: magistrates; district court; Supreme Court of the Republic, regional court, court of cities of the federal significance, court of the autonomous region, court of the autonomous district. At the same time, justices of peace should be included in the structure of the district court. Possibility of adoption of the uniform Civil Procedure Code.

The article deals with the problems of ensuring the constitutionality of Russian criminal law through the action of the system-saving mechanism in law. The author analyzes the structural elements of this mechanism and their role in the process of its operation in criminal law on the example of some decisions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation. The author reveals the components of the system-saving mechanism: principles, goals and objectives of law, presumptions and fictions, prejudices, whites and conflict rules, legal provisions. All of them are based on the Constitution of the Russian Federation, are derived from its provisions, therefore, when they are implemented, its universal action is ensured, constitutional ideas are put into social practice, and all other legal phenomena comply with the Constitution of the Russian Federation. The article explains how the provisions of the Constitution of the Russian Federation with the help of the system-saving mechanism are introduced into the legal practice, filled with a specific social content for specific branch needs. The processes of realization of the criminal legal norm about responsibility for the repeated trespassing of the established procedure for organizing or holding a meeting, rally, demonstration, procession or picketing in the context of the officially revealed constitutional meaning of the provisions of Art. 212.1 of the Criminal Code of the Russian Federation.

According to the Federal Law No. 376 as of October 30, 2018 the system of criminal procedure participants is complemented by a person, whose case is allocated into separate proceeding because of conclusion of pre-trial cooperation agreement with him/her. According to the amendments introduced into the Criminal Procedure Code (CPC), such person can be considered as a separate participant of criminal proceeding only in situations where he/she is involved in procedural actions with respect to him/her crime accomplices. A person has a procedural status of suspect, indictee, defendant within the criminal case, in which this person concluded a pre-trial cooperation agreement. The adoption of this Law can be regarded as a reaction on Constitutional Court Decision No. 17 as of July 20, 2016 «Case of checking Article 56 parts 2, 8, Article 278 part 2 and chapter 40.1 of the Criminal Procedure Code of Russian Federation in relation with complaint of Mr. D.V. Usenko». By this decision the federal legislator was obliged to introduce amendments into the CPC of the RF concerning the participation of an indictee in separate proceeding because of conclusion of pre-trial cooperation agreement with him/her, in trial of main case in order to testify against his/her crime accomplices.

The article examines the regulation of corporate management issues approved for limited liability companies with the disclosure of aspects that can be solved uniformly (the structure of governing bodies, etc.) or variably. Special attention is paid to the analysis of model provisions regarding the way of confirming the decision at the general meeting of participants (the author positively assesses the approval either by notarization, or by signing the protocol by society participants who participated in the meeting), as well as schemes for managing the current activities of the company, including the plurality of persons performing the functions of the sole executive body. Finally, the author, casting doubt on the correctness of the qualification of the typical statute as a constituent (internal) document of the organization, justifies that the voluntary following the rules of the typical statute does not lead to an absolute rejection of local rulemaking.

The article discusses the history of the origin and development of copyright in the Russian Federation and in foreign countries: the United States, Great Britain, France, Switzerland, Belgium. International legal acts in the field of copyright protection are analyzed. The author compares the periods of formation and development of the Institute of copyright in different countries, highlights the features inherent in each country in the field of copyright protection. The main provisions and principles of international conventions are studied in detail. In the study of the formation of the Institute of copyright in Russia, considered legal acts of the pre-revolutionary Russia since 1828, such as «Regulations on the rights of Writers» and other documents, including legal acts of the Soviet Union. Attention is paid to the current state of legislation on copyright protection in the Russian Federation. The problems of copyright protection on the Internet are also touched upon. This issue is relevant, because every year the number of violations of copyright and other rights holders on the Internet. On the basis of the study, the authors conclude that in order to fully protect the rights of creators of works, the Institute of copyright should be further reformed, guided by the norms of international law.

The procedural law uses the term “confl icting judicial acts” (Article 130 of the APC of the Russian Federation) in order to counteract the adoption of decisions by various arbitration courts that would compete with each other. However, this concept is not disclosed by law, in this connection, should be developed signs and criteria of acts in respect of which it would be possible to establish their contradictory nature. The qualification acts as contradictory involves an appeal to reasons for the adoption of competing solutions. Also, conflicting judicial acts are considered by the law through the prism of overcoming the risk of their adoption. The author analyzes the content and stages of the corresponding risk. Significant features of the qualification of judicial acts as contradicting each other are the interrelated nature of the cases, the time period of the existence of acts, the unevenness in the consideration of related cases. The author qualifies a sign of inconsistency of judicial acts as an external, formal sign, because even the corresponding judicial acts do not mean the acts are legal and justified.

The question of the sources of international law, which of them are the most important and the hierarchical relationship between them is not one of the most important, but at the same time the “eternal problem” of science and practice of international law. The answer determines the attitude to other (specific) problems. In addition, this category is changeless, it is in constant development, which means that it is necessary to return to it from time to time and consider it in the light of new events and relationships. For this reason, the author of the article chose this particular topic, trying to reveal it in a slightly different way than is customary in legal literature. A special intention was to point out the relativity of classifications and conclusions, as well as the growing role of decisions of international organizations. There was also a desire to provoke a scientific debate about the issues raised. The article consists of three parts. The first provides a brief overview of the sources of international law, and the author, unlike the generally accepted approach, distinguishes between the main and most important sources of international law. The second part deals with the problem of importance and interrelation of the most important sources of international law - international treaties, international legal customs and decisions of international organizations. In the third and final part, the author points to the identified problems. He particularly emphasizes the fact that in international law there is no rigid hierarchy between the norms of the most important sources of this right, as well as the fact that in the future, due to the irrepressible processes of globalization, we can expect an increase in the role of decisions of international organizations.

In this article problems of ensuring equality among participants of purchasing activity through the analysis of the operating principles underlain in the legislation on contract system are considered. Law-enforcement and administrative practice of the Samara Region when carrying out the largest purchases is analysed. Need of sharing of positive practice of standardization and a tipologization of the regional catalog of goods, works, services of the Samara Region is revealed and proved. Characteristics of law-enforcement practice on the example of mistakes by drawing up the first and second parts of applications for purchase are allocated and described and also versions of their solution are proposed. Such look will be interesting to experts who directly form procurement documentation. On the basis of the conducted research the author offers filling the gaps in the legislation and applications of uniform approach in interpretation of the legislation in the sphere of purchases by law enforcement officials, regulatory and judicial authorities.

The article deals with a topical question of law and party regulation of inner-party responsibility. The aim of the article is to develop a theoretical concept of two-level regulation of inner-party responsibility. The author`s concept is based on clause 3 of Article 55 of the Constitution of the Russian Federation. The article gives a detailed analysis of modern concepts of restriction of rights and freedoms. It generalizes the enforcement practice of clause 3 of Article 55 of the Constitution of the Russian Federation by supreme juridical institutions. It also describes in short the practice of the European Court of Human Rights. Theoretical conceptions and enforcement practice are the basis of author’s concept of regulation of inner-party responsibility, which includes two parts. The first part is aimed to find out grounds of admissibility of state intervention into party relations (criteria of validity and necessity). The second part is aimed to find out limits of state intervention (minimum security criteria and preservation of the essence of law criteria).

The article analyzes the legal construction of the subject of bribery (article 290–291 of the Criminal Code of the Russian Federation), focuses on the content of this objective evidence of the crime; justifies the provision on the expediency of determining the concept of the subject of bribery, taking into account the corresponding provisions of the Civil Code of the Russian Federation; discloses the content of five varieties of the subject of bribery (money, securities, other property, illegal provision of property services, the provision of other property you-year); such peculiarities of the subject of bribery as its property character, the illegality of giving and receiving, as well as the incompetence and the addressee of bribes are investigated, the author’s definition of the subject of bribe-taking as an illegal property benefit in the form of money, securities, other property or in the form of illegal provision of services of property character, granting of other property rights, which is granted to the official, foreign official and public official of the international (including when a bribe is transferred to another physical or legal person upon the instructions of a debtor) for the commission of actions (inaction) in favor of the bribe-taker or the persons represented by him if such actions (inaction) are part of the official duties of a duty officer or if, by virtue of his official position, he can contribute to the specified actions (inaction), as well as for general patronage or connivance in the service or for the commission of illegal actions (inaction) by an official.