Russian Journal of Legal Studies (Moscow)

Данный журнал – это межотраслевое и научно-практическое, мультидисциплинарное издание для широкого круга авторов и читателей, специалистов из различных сфер знания и отраслей права. Основная идея издания состоит в тематическом объединении на страницах журнала воззрений юристов, представляющих различные отрасли права, а также экономистов, философов, политологов, социологов и культурологов на общие и актуальные проблемы российской и зарубежной юридической науки и практики.

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Vol 7, No 2 (2020)

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Actual topic
Ideology in the Main Law of Russia
Kalnoy I.I.
Abstract

This article discusses the role of ideology behind the basic laws of Russia. The state ideology, or philosophy, determines the vectors of development of the legislative, executive, and judicial authorities, as well as the general direction of the society’s development. The imperatives of the Constitution are the attributes of its strategy, the tactics of which are provided by ideology as a system of personal views - a citizen of a particular country on his environment, on his place in it, on his attitude to it.

The purpose of the stated article is to investigate the evolution of ideology from idea to imperative, considering the place and role of ideology in the Constitution of the Russian Federation, revealing the relationship between ideology and the cultural code of Russia, as well as the adaptation of this relationship at the level of individual consciousness.

Russian Journal of Legal Studies (Moscow). 2020;7(2):9-14
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A few words about the Constitution: philosophers are denied
Popov E.A., Sterlyadeva N.A.
Abstract

The article reveals the possibilities of cooperation between philosophers and lawyers in various interpretations of the Constitution as the basic law of the state and constitutionalism as a philosophical and legal doctrine. The authors address the complex issues of interpretation of legal concepts, as well as the experience of philosophical reflection in the consideration of legal phenomena and processes. For this purpose, in particular, dissertations devoted to global constitutionalism and the Constitution of Russia as a factor of preservation of traditional values and norms of the Russian society are analyzed. The authors of the article emphasize that both theses were not supported by the Higher Attestation Commission, but they can be regarded as a new scientific direction in the interdisciplinary interaction of philosophy and law. The authors explore the Constitution and constitutionalism in a philosophical way: not as normative legal acts, but as sociocultural phenomena, the development of which is associated with
the traditions and customs of culture, ideology, and philosophy of the state and statehood. The problem of “narrow” places of understanding of constitutional meanings is indicated in the material. This problem can be solved only in cooperation of various fields of knowledge, philosophical and legal first and foremost. Such interaction has some advantages: 1) it allows one to identify the dominant value in the regulation of social relations; 2) it minimizes the effects of errors in the interpretation of specific rules of law and improving the law enforcement practice;
3) it provides an empirical experience understanding of the law; 4) it reveals the features of legal life and society through the prism of axiological–normative system of culture, etc. Thus, the article focuses on the significant theoretical and methodological role of philosophical knowledge in the reinterpretation of constitutional meanings.

Russian Journal of Legal Studies (Moscow). 2020;7(2):15-21
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The President in the state machinery of the Russian Federation (constitutional and legal analysis)
Kerimov A.
Abstract

Based on an analysis of the updated version of our State Constitution, the author comes to the unequivocal conclusion that the powers of the President of Russia have now significantly increased as his prerogatives have expanded.

Russian Journal of Legal Studies (Moscow). 2020;7(2):22-27
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A Fictitious States: past and present
Novoseltsev A.Y., Stepanyugin K.V.
Abstract

The article discusses the concept of a fictitious state, which can be defined as an international legal fiction that is created or consciously supported by real actors in international relations to legitimize illegal actions, such as annexation, evasion of obligations, seizing the assets of other states, creating a buffer zone, etc.

The main feature of a fictitious state is the absence of real sovereignty in the presence of only external attributes of the state. The authors believe that fictitious states are a facet of neocolonialism. Although the number of states in the world has increased from 70 to 197 since 1945, this figure has no relation to the self-determination of peoples.

The authors conclude that at present there are no legal requirements for the legal capacity of subjects of international law. Condemnation or recognition of fictitious states, as before, is determined solely by the interests of foreign policy. The authors propose to continue work on strengthening the sovereignty of the Russian Federation at the level of national legislation.

Russian Journal of Legal Studies (Moscow). 2020;7(2):28-34
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Theory of law
Digitalization in the understanding of philosophy, law, political science, and economics: an interdisciplinary approach
Timchenko A.V., Timoshenko A.
Abstract

This article discusses the influence of digitalization on diverse social activity spheres. The authors analyze the essential notions of digitalization with regard to philosophy, law, political science, and economics. The digital sphere becomes virtual space without understanding and recognizing territorial and hence, nation-state, jurisdiction. Global digitalization for all social spheres becomes a reality.

Nowadays, the digital economy is globalizing, the public administration is digitalizing, electronic technologies in finance are developing, and smart cities are being created. Law lags significantly behind new digitalization challenges and does not always react swiftly with regard to social interaction dynamics. Philosophy conceptualizes human existence in digital society in the new digital era.

Russian Journal of Legal Studies (Moscow). 2020;7(2):35-44
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Legal transplants of Roman–Byzantine law in Ancient Rus in the context of Russian legal doctrine formation
Tarasevich I.A.
Abstract

The article discusses some aspects of the influence of Roman–Byzantine law on the legal system of Kievan Rus’. Such legal transplants were conducted through the religious sphere of society, namely, through representatives of the clergy and institutions of the Christian church.

The author comes to the conclusion that the legal doctrine of Russia had been Christian-centric since the time of the Kievan Rus’. The ancient Slavs were not only ready for the adoption of such a legal paradigm, but even demanded it. In particular, this is indicated by the granting to the church court of several greater powers than in Byzantium.

According to the author, Christian-centricity is a fundamental element of the legal paradigm of modern Russia, which is proven by the peculiarities of constitutional reform in the country.

Russian Journal of Legal Studies (Moscow). 2020;7(2):45-51
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International law
Fair trial in criminal matters: un standards and factors of transformation of its Russian model
Timoshenko A.A.
Abstract

Based on an analysis of international standards in the field of justice discussed at the 13 UN Congresses on Crime Prevention and Criminal Justice since 1950, the article examines the characteristics of the “ideal” model of a fair criminal process from the point of view of the world community. In the context of a fairly broad understanding of the sign of justice, both at the level of national law enforcement bodies and in the context of the application of international acts by various intergovernmental organizations, it is quite important to isolate the key signs of justice.

The author studied not only the International Conventions and Declarations discussed at the Congresses, but also their working documents, which made it possible to more accurately determine the desired vector of development of national legislation in its movement toward building a more just criminal process.

The conclusions drawn in the work based on the results of the study can be used in lawmaking, as well as be the subject of scientific discussion of the acceptability of the recommendations of the international community for the purposes of effective lawmaking and law enforcement.

The author also proposes to take into account the identified factors affecting the fairness of legal proceedings when building scenario analysis models regarding the future transformation of the judicial system in connection with its global digitalization.

 

Russian Journal of Legal Studies (Moscow). 2020;7(2):52-65
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Criminality in Liechtenstein
Trefilov A.A., Borodulkina E.S.
Abstract

The authors of this article, on the basis of statistical, normative, and doctrinal sources (mainly German-speaking), examine the main features of crime in the Principality of Liechtenstein, which is located between Switzerland and Austria: 1) the predominance of drug trafficking; 2) criminal acts committed by foreigners as a significant share of crime Liechtenstein; 3) a sufficiently high crime detection rate. Further, the authors analyze crime prevention and deterrence measures in the Principality of Liechtenstein. The views of the reigning Prince Hans Adam II on illegal drug trafficking are considered. The issue of combating criminally punishable acts in the financial sphere (legalization of criminal income, financing of criminal activity, illegal banking activities, etc.), as well as the legal status of the financial intelligence Unit (Financial Intelligence Unit) is also touched upon. The opinion of ordinary people (carriers of ordinary legal consciousness) about the level of crime in Liechtenstein is studied via Internet forums.

Russian Journal of Legal Studies (Moscow). 2020;7(2):66-70
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Categories of “integration” and “disintegration” in international law: modern conceptual approaches
Galushko D.V.
Abstract

The importance of the category of “integration” in the modern system of international relations can hardly be overestimated. The science of international law is no exception, and its development has recently been largely conditioned by the ongoing integration processes between states, the main subjects of international law. The very international legal doctrine has developed many approaches to the characteristics of its essential characteristics, including integration. Despite the objective nature of integration, its development in the context recent disintegration events that have taken place in the international arena and given rise to crisis phenomena (the first of which is, of course, the process of Britain’s withdrawal from the European Union), predetermine the relevance as well as the theoretical and practical significance of this article. The methodological basis of the work includes well-known general and specific methods of scientific research. The purpose and objectives of the article are to study the relevant problems and the essence of integration and disintegration processes in the international arena, characterize the main doctrinal approaches to them, and identify general trends as well as the essential characteristics and main features of these phenomena.

Russian Journal of Legal Studies (Moscow). 2020;7(2):71-77
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Extradition clauses in multilateral international treaties: international legal aspects
Kantur R.A.
Abstract

The article focuses upon the legal sense of extradition clauses in multilateral criminal law treaties. The methodology of the article embraces both general methods, such as analysis and synthesis, and specific ones, such as comparative, statistical, and linguistic methods. A multi-pronged evaluation of the clause is performed, with particular scrutiny given to the different kinds of authentic English- and Russian-language wording intrinsic to this type of treaty. Such clauses are prone to have a direct effect and are subject to implementation by state parties to an international treaty, along with its substantive norms. In some cases, an extradition clause is considered a substitute for a special extradition treaty, notwithstanding the deficiency of the presumption of inclusion of crimes criminalized by the conventions in bilateral extradition treaties. Irrespective of the salient virtues inherent in such clauses (for instance, the absence of the necessity to elaborate and conclude a special extradition treaty; the procurement of enforcing substantive norms; the existence of legal mechanisms provided for in such conventions by dint of which state parties are entitled to resort to international judicial organs, in case of any dispute concerning the application or interpretation of a treaty), the shortcomings, among which are a narrow range of crimes to which the clause relates, and a set of legal hindrances connected with the implementation process, are unequivocal.

 

Russian Journal of Legal Studies (Moscow). 2020;7(2):78-83
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Criminal law
Determinants of environmental crime
Timoshenko Y.A.
Abstract

The article discusses the main determinants of environmental crime. The causal complex that gives rise to environmental crime is multifaceted and consists of a combination of objective and subjective factors. The main causes remain the contradiction between society and the environment, deformation of the society’s environmental consciousness of the population, underestimation of nature and the degree of danger or harm caused as a result of their commission. In general, the type of crime is determined by several groups of factors considered in the article: social, economic, legal, organizational. and political.

Russian Journal of Legal Studies (Moscow). 2020;7(2):84-92
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Criminal process
Recourse action against investigative authorities is a legal way of «fall guys:» identifying who made a mistake in the criminal procedural system
Kovtun K.N.
Abstract

The author indicates how and in which ways tendencies of recourse recovery from guilty persons of investigative authorities can be realized. The article reviews practical experience of recourse actions disposition over the last years in the Russian Federation. From the author’s point of view, this practical experience is confusing, conflicting, and potentially hazardous.

In 2018, the Law Commission of the Government of the Russian Federation endorsed a bill aimed at improving recourse actions against investigative authorities. The legal fundamentals of the bill are stated in regulations of Chapter 18 the RF CPC and again in Articles 1069, 1070, 1080, sub-paragraphs 3 and 3.1 of the Article 1081 of the CCRF. The main idea of the bill is to improve the subjects and practice of recourse recovery from guilty parties of investigative authorities and other law enforcement agencies of those funds that were disbursed to rehabilitees from the Treasury of the Russian Federation account in accordance with Chapter 18 of the RF CPC [1]. The Russian Federation State Duma presented a bill in 2019 that specified the minimum amount of state monetary compensation for unwarranted prosecution of such persons who (in future) would be liable to rehabilitation. There are some innovations of the given bill. The minimum compensation per rehabilitee is 1000 RUB for each day of pretrial investigation and judicial inquiry; 5000 RUB per day for illegal use of such restrictive measures as house imprisonment, restraining order, and written undertaking not to leave the place; and 15 000 RUB per day of illegal stay in pretrial detention facility [2].

If these new measures are accepted, the amounts of recourse against investigative authorities will be cardinally increased. The keys of the above-noted lie in growing statements. The main point of these statements is that the federal budget loses huge sums annually and irrevocably through the realization of institute rehabilitation.

Russian Journal of Legal Studies (Moscow). 2020;7(2):93-104
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