Vol 5, No 4 (2018)


International Information Security in the Framework of International Law (Methodology, Theory)

Kostenko N.I.


The aim of the study is to form basic approaches to formation and development of the law of international information security. The relevance of such an analysis is provided by the analysis of the legal nature of international information security. Examines the information component, which is an important component of international and national security. Explores the international information security management issues within the framework of the law of international law and of international information security in particular. Examines the problem of ensuring international information security on the improvement of the legal system of international information security. Analyses the legal nature of international information security in modern conditions. Explores approaches to the subject of education newly emerging branch of international law: the right of international information security. The work involves scientific and private scientific research methods, including analysis, synthesis, deductive, inductive, systematic methods, normative-logical method and other methods of cognition. In an article in a special way the role of information security at the international level and of ensuring international information security actors are the State, its bodies, legal entities and natural persons, who are required to carry out its activities in a specified direction. The novelty of the study is: firstly, the international information security is aimed at forming and ensuring international information security legal regime on the basis of the universally recognized principles and norms of international law and international treaties; secondly, international legal principles and norms regulating the legal status of the information space, usage of public persons, belong to the branch of international law: the right of international information security; thirdly, under the international information security understand global information system security from threats of «triad»- terrorist, kiberprestupnye and politico-military (under military-political threats means information warfare and information confrontation). Fourthly, the international information security is governed by universally recognized principles and norms of international law, international treaties of the Russian Federation and.
Russian Journal of Legal Studies (Moscow). 2018;5(4):9-16
pages 9-16 views

The War of Meanings:Indirect Religious Extremist Influenceon the Value-Semantic Core of the Russian Community

Agutin A.V.


The article is devoted to the understanding of the war of meanings by the potential of a nonlinear religious extremist influence on the value-semantic core of the Russian community. The objectives of the nonlinear religious extremist influence on the value-semantic core of the Russian community are determined. The interrelation and interdependence of nonlinear religious extremist influence with Protestantism and pantheistic mysticism is substantiated
Russian Journal of Legal Studies (Moscow). 2018;5(4):17-22
pages 17-22 views

Observers in the Process of Concluding International Treaties

Kurashvili A.Y.


The article deals with the participation of observers from states and international organizations in the process of concluding international treaties. The status of observers is not defined in present laws and regulations; also there are no significant scientific researches on this topic, both internationally and nationally. Nevertheless, as a result of long practice, a certain set of rights and obligations of observers has been formed, which characterizes their status. In the present publication, the author dissects separate stages of treaty-making process in which observers can be involved and gives the characteristics of rights and obligations for such observers. Despite the limited functionality of the observers, their involvement in the process is quite high. When discussing the provisions of the international treaty, it is important for its future participants to obtain the opinion of competent organizations or interested states on the subject and the main provisions of such treaty. Thus, the participation of observers in the process of concluding international treaties is not only a unilaterally granted privilege, but also a legal symbiosis with other actors in the process, where treaties become more natural and viable. In the author’s opinion, observer states and observer organizations play an important role in the process of creating international legal norms. Taking into account the comments and recommendations of observers at conferences or in international organizations significantly increases the chance of adopting the text of the treaty when voting. This research may be of interest to persons engaged in law of treaties, law of international organizations, procedural issues of concluding international treaties, as well as the status of participants in the process of concluding treaties.
Russian Journal of Legal Studies (Moscow). 2018;5(4):23-29
pages 23-29 views

Legal Content of Disarmament as a Principle of Modern International Law

Nutsalkhanov G.N.


At each stage of historical development in the world there were problems that are of universal global character. Such a problem in the modern world is the problem of disarmament. The article studies disarmament as a principle of modern international law. Analyzing the content of the disarmament principle on the basis of the provisions enshrined in the UN Charter, states do not yet have a direct duty to disarm. This duty must be mediated through other rules that require States to do so, and the creation by States of such norms is their duty. Noting the difficulty of developing a mutually acceptable agreement on disarmament, the author shows the role of the UN General Assembly and the UN Security Council in defining the general principles of disarmament and developing concrete plans in this area. In this context, the work of the main organs of the United Nations, the author also considers the role of the Military Staff Committee as a subsidiary body of the UN Security Council. The author then examines the role of the UN Disarmament Commission. Despite the fact that the Commission is not directly called upon to draft specific draft agreements on disarmament, this, in our view, is possible because the possibility of considering specific disarmament plans is not excluded from the functions of the General Assembly. At the same time, the author notes that the activities of the Commission can not be outside the jurisdiction of the UN Security Council, since it is this body that is responsible for developing the final disarmament plans. An analysis of the international legal doctrine and existing international legal acts leads the author to the conclusion that in the modern international law the disarmament principle is being formed, which acquires a qualitatively different character with the adoption of the Treaty on the Prohibition of Nuclear Weapons
Russian Journal of Legal Studies (Moscow). 2018;5(4):30-37
pages 30-37 views

Law-Making Activity as a Type of Legal Process

Chulyukin L.D., Guryanova V.V.


The article studies the problem of understanding the essence of law-making as a kind of legal process. The current procedural legislation for the creation of norms of law is analyzed. Scientific research about the nature of lawmaking is studied and modern law-making activity is taken. The law-making process is researched on the basis of philosophical approaches (dialectical materialism, logical positivism, critical rationalism, etc.), general scientific (analysis and synthesis, generalization, system analysis, abstraction, etc.) and private methods (specifically sociological method, formal legal, a method of legal interpretation). As a result of using a set of scientific methods, a systematic knowledge of the essence of the legal process is obtained. The authors have updated the idea of the current law-making process. The essence of the law-making process is defined through the system of its main features, which give it a qualitative certainty. Legislative activity, considered as a kind of the legal process, is presented as a procedural, legal, staged activity of subjects specified in regulatory legal acts aimed at creating, amending, supplementing and repealing the operation of the rules of law. The study of this problem is conducted to establish a unified approach to the definition of law-making, an indication of its procedural nature and the improvement of legislation regulating the creation of norms of law. As a result of the conducted analysis it is established that the process of law-making activity is complicated due to a large number of normative legal acts. This circumstance makes it necessary to systematize the procedural legal regulations that establish the procedure for preparing, submitting, reviewing, accepting, publishing, amending, repealing, systematizing, interpreting all normative legal acts, rules of law-making technology, etc.
Russian Journal of Legal Studies (Moscow). 2018;5(4):38-44
pages 38-44 views

Methodology of Chrono-Discrete Mono-Geography Comparative Law in the Study of Judicial Reforms in the Russian Empire and the Russian Federation

Bolshakova V.M.


The article proves the expediency of applying the methodology of chrono-discrete mono-geography comparative jurisprudence when studying judicial transformations in the Russian Empire and the Russian Federation. The author proves that the judicial reforms of Emperor Alexander II and the judicial transformations late XX - early XXI century in their totality represent a chrono-discrete phenomenon. Examines the basic principles of the scientific school of chrono-discrete mono-geography comparative jurisprudence as applied to the study of Russian judicial reforms in the Russian Empire and the Russian Federation. In the paper it notes that the judicial transformation as a phenomenon include items such as 1) conceptual framework, ideas of reform; 2) judicial institutions; 3) theoretical and practical problems of implementation; 4) results; compliance, what happened, what was intended by the reformers; 5) attitude of the legal community and the public to reform on the whole and its separate institutions. The essential core of any judicial reform are newly constructed or transformed its institutions. Speaking of chrono-discrete judicial institutions, the author proposes to divide them into classical and non-classical. The first is the Institute of magistrate’s court, the juries and the Institute of bailiffs and institute of appeal. To non-classical chrono-discrete institutions include prosecutors and the legal profession. As the main comparable problems, characteristic for the studied periods, the author sees 1) the reforms “from above”; 2) the issue of financial support for reforms; 3) personnel problems; 4) problem of implementation of judicial reforms in space and time; 5) constant and numerous adjustment of normative legal acts, regulating the structure and activity of the relevant judicial institutions.
Russian Journal of Legal Studies (Moscow). 2018;5(4):45-50
pages 45-50 views

The Choice of Strategic Directionsfor the Development of Health Care in Russia, Taking into Account Risk Factors for Maintaining the Health of Children, the Working-Age Population and the Retirement Age

Gabueva L.A., Pavlova N.F.


Health care in Russia is under the difficult conditions of under-financing of the industry due to the stagnation of the economy, relatively low GDP per capita, a small percentage of GDP allocated to health care, large area and low density of settlement of the population served. In this context the Ministry of Health of the Russian Federation must correctly determine the strategy and tactics of action to its available resources were aimed at solving the main tasks of preserving the population of all age groups. The authors propose to consider the influence of the Ministry of Health of the Russian Federation on the full range of risk factors that determine the health status of the population, the relationship between the health of parents and the welfare of the family and the role of the older generations of the family in the preservation, creation and development of the potential viability of the family. It is in the family that the human labor force is created, the restoration and reproduction of today’s labor potential, and the task of expanded reproduction of labor resources is resolved which is the basis of socio-economic growth and development of Russia-is being solved. The authors take part in the scientific and practical discussion on pension reform, offering the Government to take into account the expected duration of healthy life of men and women, to analyze various aspects of employment of the older population, which has higher risks of becoming unemployed than workers of middle and young age. On the other hand, the continued employment of older persons makes the task of youth employment even more difficult. The authors suggest that the Government consider other options for filling the budget. The science of management says that it is necessary to consider several options, take into account the pros and cons of each, and find the option that will give the least plume of negative social consequences and will allow to execute the main national task to preserve of the population.
Russian Journal of Legal Studies (Moscow). 2018;5(4):51-63
pages 51-63 views

Defects of Rendering Medical Care: Legal Consequences of Professional Noncompetence

Savoshchikova E.V., Voronina I.A., Sablin D.A.


The authors refer to the topic related to the establishment of justice in the protection of such constitutional rights as the right to life, the right to health, the right to medical assistance in determining how individuals with special knowledge, namely, medical professionals act as subjects, facilitating the implementation of these rights and monitoring them through, including legal mechanisms. The issues of ambiguous interpretation of the term «medical error» and the competence of commission forensic medical examination in assessing the quality of medical care are considered. The author cites the classification of defects in the provision of medical care. The concept of «medical error» is not used, since the term «medical error» is indifferent to the law, it is replaced by the term defining any illegal action of the doctor, namely - «defect in the provision of medical care». The authors identify the following types of defects of medical care: deliberate iatrogenic (deliberate defect) is a defect of medical care resulting from intentional crime; iatrogenic careless (negligent defect) is a defect of medical care, including signs of careless crimes; erroneous iatrogenic disease (medical error) - defects in the provision of medical care associated with a conscientious delusion of a medical worker that do not contain signs of intent or negligence; accidental iatrogenic disease (accident) - defects in the provision of medical care associated with an unforeseen coincidence, which does not exclude the lawful actions of medical workers. On the basis of acquaintance with practice of rendering medical care in work it is noted that specific weight of defects of rendering medical care and medical mistakes is rather big. The paper notes the data of the Institute of Medicine of the National Academy of Sciences of the USA, giving the information of death due to medical errors in American hospitals. The paper deals with the subjective and objective causes of medical errors, the most common causes of medical errors are indicated. The data of monitoring of citizens’ appeals regarding the failure to comply with the provisions of the Federal Law of November 21, 2011 No. 323-FZ «On the fundamentals of protecting the health of citizens in the Russian Federation». Analyzed appeals of citizens of the Russian Federation, containing claims in view of improper performance by medical workers of their official duties. The materials are presented taking into account the appeal to the foreign experience of regulation of these issues.
Russian Journal of Legal Studies (Moscow). 2018;5(4):64-69
pages 64-69 views

Introduce CRS Standards for the Automatic Exchange of Tax Information into International Practice and Improve the Legal Regime on Controlled Foreign Companies

Jilkine V.A.


Countering crime in taxation area is one of the crucial tasks since this type of offence encroaches upon the economic principles and the power of the state, promotes development of corruption ties and therefore is deemed to be among the most dangerous perils to the national financial security. The Tax Policy Centre of the Organization for Economic Co-operation and Development has launched a system, within the framework of the Automatic Exchange Portal, for disclosure of schemes aimed at circumventing the single standard (CRS) for automatic exchange of information on taxpayers’ accounts. The law on the place of residence (location) is applicable in terms of international private law pertaining to OECD information exchange rules. The legislation on controlled foreign companies proved to be the legislators’ response, in most of the developed countries, to minimization of taxation in offshore zones, having the purpose to prevent tax evasion through offshore companies established in jurisdictions with minimal taxation. On 27.12.2017, within the framework of the course for counteracting offshore structures and obtaining unreasonable tax benefits, certain amendments were introduced in Federal Law No. 376-ФЗ, with specification of conditions for classifying a foreign company as a controlled foreign company; setting the criteria for recognizing individuals and organizations to be controlling entities; introducing a procedure for taxation and exemption of controlled foreign company’s profit from taxation. In this regard, it is necessary to draft a number of laws aimed at development of mechanisms for return of capital to the Russian jurisdiction and regulation of legal norms intending to release business representatives from paying the 13-percent tax in the event of termination of their business abroad.
Russian Journal of Legal Studies (Moscow). 2018;5(4):70-75
pages 70-75 views

The Doctrine of Legitimate Expectations in Tax Relations

Yadrikhinsky S.A.


The article deals with the doctrine of legitimate expectations in relation to the Russian tax sphere, which is popular in the European and American legal order. The main idea of the doctrine is the deterrence of the discretionary beginning of public authorities in the implementation of their activities. The promise given by the authorities forms a certain individual expectation, which is subject to protection if it is in the rank of «legitimate». Accordingly, the public authority is bound by this promise and is not free to change or cancel it; there must be a good reason and appropriate justification for making a decision that runs counter to formed expectations. The government must meet the expectations created by it, or at least to minimize the negative effect of the unpredictable deviation from this promise, including through the compensation mechanism. The reverse would mean arbitrary use of power and would contribute to an atmosphere of distrust of the law and the actions of the state. The legal positions of the Constitutional Court of the Russian Federation, revealing the principle of maintaining the trust of citizens to the law and the actions of the state as a form of manifestation of western doctrine in the Russian version. It is concluded that the sovereign rights of the state in the matter of taxation do not make its power absolute. The state is not only the bearer of power, but also the main guarantor of the rights and legitimate interests of the person (taxpayer). It is the legal principles and human rights that underlie his legitimate expectations, define the discretionary limits of powers and criteria of discretion of the authorities and act as a deterrent to the fiscal appetite
Russian Journal of Legal Studies (Moscow). 2018;5(4):76-84
pages 76-84 views

Principles of Regulation of Tax Relations in Romania

Nani L.


The maintenance of a balance between the proper execution of a state’s functions and individual interests is secured by the principles of regulation of tax relations. Such principles are defined by the constitutions and the tax legislations of foreign countries. The modern interpretation of the principles of regulation of tax relations is revealed by the relevant jurisprudence. The present article addresses matters of interest for Russia of the application of principles of regulation of tax relations in Romania. Such regulation is based, particularly, on the principles of legality, certainty and specificity, as well as bona fide of the taxpayer. The principles of proportionality and effectiveness of the EU apply in addition to the national level of legal regulation. The guarantor of the observance of such principles is the court: the biggest part of decisions on tax disputes are in favour of the taxpayer. The article represents an attempt to systematize the distinctive features of the realization of the aforementioned principles in the context of the analysis of the relevant jurisprudence of national courts of Romania (the appeal courts, the High court of cassation and justice and the Constitutional court), as well as of the European Court of Justice and the European Court of Human Rights. The identified distinctive features relate to the following matters: compliance with the constitutionally stipulated procedure of enacting tax laws and elimination of contradictions between secondary legislation and tax laws, inadmissibility of the retroactivity of the law, application of legal methods of ascertaining the risk of taxpayers who are to be verified, as well as compliance with tax secrecy requirements. The article contains examples of jurisprudence in the matter of accountability of a state in civil procedure for the illegal appropriation of funds from the taxpayer in the practice of national courts and of the European Court of Justice.
Russian Journal of Legal Studies (Moscow). 2018;5(4):85-92
pages 85-92 views

Problems of the Financialand Legal Nature of Funds of Organizations

Zhestkov I.A., Glanskaya E.G.


The object of science of the financial right is understood as the public relations arising in the course of activities for systematic education (formation), distribution and use of the public, municipal and other public foundations for realization of problems of public character. At the same time the problem of publicity or not publicity of the legal nature of some funds remains not resolved neither in science of the financial right, nor in the legislation of the Russian Federation that does nоt give the chance precisely to define limits of an object of science of the financial right. The obligation of formation and also the sizes which purposes and an order of use are provided by imperatively federal normative legal acts is about funds of funds of the private organizations. In particular, it is possible to carry indemnification funds of self-regulatory organizations, obligatory reserves of credit institutions, reserve funds of joint-stock companies, reserve fund of Association of Tour Operators to such funds in the sphere of outbound tourism, an indemnification fund of professional association of insurers on obligatory insurance by the citizen of responsibility of carrier for infliction of harm of life, etc. In article questions of the legal nature of separate funds of the organizations, including specifics and financial and legal features of their formation and use, relevant for financial and legal science, are considered. Provisions of the legislation of the Russian Federation and also a position of the leading erudite jurists of rather public or non-public legal nature of funds are analyzed. The attention is especially focused that funds have special-purpose character, are formed and used in public interests by the organizations equipped with public functions.
Russian Journal of Legal Studies (Moscow). 2018;5(4):93-97
pages 93-97 views

Legal Deterrent Strategy Against Illegal Management Actions

Lutsenko S.I.


The author considers legal strategy of restriction from illegal actions of the management, allowing to protect interests of shareholders. The author analyzes the agency problem between shareholders and management in the corporate legislation through a prism of legal strategy. The shareholder of the company possesses powers which allow it with a view of efficiency achievement as independently, and under the responsibility to appoint to (choose) the management. The management is allocated with large powers. Legal strategy of restraint assumes co-ordination of actions of management and the shareholder, allowing to lower the agency costs connected with wrongful acts (infringements of the fiduciary duties) from management. In the corporate legislation main principle is the priority of interests of the company in whole (the corporate blessing) over interests of other participants of corporate relations. The key role is played by the control of the shareholder of actions of management within the limits of legal strategy of restraint. The effective and flexible system of compensation allows to lower level of the agency conflict between management and the shareholder of the company. The motivation program should be focused on important long-term objectives of the company. Compensation directly is connected with results of activity of the company and professionalism of its management. A part of legal strategy of restraint is use of fiduciary rates which protect interests of the shareholder as a class. The legislation demands, that the management acted in good fair and reasonably in interests of the company. The author focuses the companies on provision of independence as a part of controls for the purpose of decrease in the agency conflict between management and participants of the company. The legal strategy of restraint offered by the author, allows to soften the agency conflict between interests of a management and interests of participants of the company.
Russian Journal of Legal Studies (Moscow). 2018;5(4):98-104
pages 98-104 views

Independence of the Judge, the Prosecutor and the Investigator

Tymoshenko A.A.


In the article, based on the analysis of doctrinal literature, law enforcement practice, the results of the survey of prosecutors and investigators questioning the issues of the institute of independence (independence) of the judge, the prosecutor and the investigator. These participants in the criminal process, performing key functions in criminal proceedings, need serious guarantees of the exercise of their special powers. At the same time, the study of relevant legislative acts leads to the conclusion that there are a number of problems whose solution will significantly increase the status of these officials and make them active participants in solving urgent problems of the population. On the one hand, the principle of absolute independence of a judge from the leadership of the judicial system, and on the other - the need to ensure the elementary organization of labor of “ordinary” servants of Themis. Likewise, the author sees a gap in the special powers of the investigator, who has the opportunity to practically independently resolve the criminal law tort, and an indicator of his real autonomy within the preliminary investigation body, which is characterized by an almost complete dependence on the leadership of the investigative body. In addition, the legislator does not form at all his attitude towards the internal independence of an employee of the prosecution authority. In view of the revealed organizational and legal problems of ensuring the independence (autonomy) of the judge, the prosecutor and the investigator, the author comes to the conclusion that it is necessary to more finely regulate the organization of work of these persons, in every possible way protecting them from outside interference
Russian Journal of Legal Studies (Moscow). 2018;5(4):105-119
pages 105-119 views

Qualification of Crimes Related to the Use of Modern Electronic Entities: the Experience of Germany

Pechegin D.A.


Comprehensive legal regulation of relations arising in connection with the development of the digital economy currently involves the establishment of the grounds and conditions for bringing persons to responsibility for illegal actions in the new crypto sphere of legal relations, including criminal liability. At the same time, this issue is most acute in connection with the emergence and evolution of crypto - currencies-digital entities that erase any boundaries, allowing you to «move away» from accounting for income, paying taxes, controlling financial flows, and so on. The latter is related to the risks and threats posed by this «new money». After all, unlike the use of digital technologies (i.e. the appropriate software) for criminal purposes, where a certain qualification of the attacker is required, almost everyone can use the cryptocurrency to commit illegal actions. Since 2013, the German Government began to recognize Bitcoin as a digital currency, indicating that such currency does not apply to electronic money or to the so-called «functional» currency (including foreign currency). In the future, virtual currencies in Germany were recognized as a financial instrument (2017), and in the banking legislation of Germany they were recognized as private funds and specific units of financial accounting. The article analyzes some aspects of the qualification of crimes related to the use of modern electronic entities in Germany.
Russian Journal of Legal Studies (Moscow). 2018;5(4):120-124
pages 120-124 views

Responsibility for Rape under the Criminal Law of the People’s Republic of China

Bimbinov A.A.


A subject of the real research is the criminal legislation of People’s Republic of China on responsibility for rape. In work object of the specified crime is investigated, characteristic of the victim and subject of offense is given, the content of signs of the objective and subjective parties of crime reveals. Also characteristic of the qualifying signs is given in article. It is noted that studying of the foreign legislation and practice of its application is important both from theoretical, and from practical the points of view. Experience of foreign legislators allows to consider possible negative consequences when reforming the domestic legislation. The analysis of judicial practice, opinions of the Chinese and domestic scientists, the kriminogenic and qualifying signs allowed to establish strong and weaknesses of the Chinese legislation regarding a regulation of responsibility for rape. The Russian and Chinese criminal legislation has many common features. In many respects it is caused by the long-term socialist direction of development of the Russian Federation and People’s Republic of China. Nevertheless, the Chinese criminal legislation in the studied part has certain differences. So, for example, social, cultural and political and legal features of the Chinese system did not allow it to develop balanced by criminal - a legal mechanism of protection of the person against sexual encroachments irrespective of his floor. Now in criminal law of People’s Republic of China there is no independent responsibility for violent acts of sexual nature with penetration (anal, oral sexual contact) concerning males (in Russia such actions form the corpus delicti provided by Article 132 of the Criminal code). Such actions, despite high public danger, on the current edition of the law can be qualified only as infliction of harm to health or as dissolute actions.
Russian Journal of Legal Studies (Moscow). 2018;5(4):125-130
pages 125-130 views

The Concept of «Crimein the Field of Computer Information»

Shibaev D.V., Lobachev I.V.


The paper is concerned with correct regulation of public relations which are directly connected with legally, socially and linguistically verified conceptual apparatus. The latter helps to reveal legal relations. Crimes in the field of the so-called «computer information» are relatively new acts, and therefore, their classification to the present day has been rather controversial. The comparative and legal research methods, methods of analysis and synthesis have been used to unveil some crucial definitions to classify criminal offences where computer device or electronic information is used either as a tool or a target. Thus, the main objective of the research done is a comprehensive study of the theoretical foundations of crimes in the field of computer information as well as different views on the following notions: «information», «digital information», «computer crimes», «information security», etc. The article contains the history of crimes in the realm of computer information, their features and signs, the formation of a conceptual apparatus. The works of the prominent think-tanks of criminal, administrative, information law, such as Yu.M. Baturin, V.B. Vekhov, N.A. Selivanov, V.A. Kopylov, V.V. Krylov and some devoted to the basic concepts with regard to the classification of E-crimes or, in IT terms, offences in the field electronic media have been studied. The paper describes the debates associated with the application of the term «computer crime» as: independent one having a special subject and object; separate one but within the branch of criminal law; incorrect due to its narrow semantic content. Proponents of such a point of view suggest it should be expanded and treated as «information crimes». The authors offer the definition of a crime in the field of computer information elaborated as a result of their research efforts. In their view, it means unlawful criminally-committed and publicly dangerous act, criminally prosecuted and punished, encroaching public relations to safely produce, store, transfer, search, use, diffuse and protect computer information which damages or threatens the legal rights or interests of individuals and (or) legal entities, society, state.
Russian Journal of Legal Studies (Moscow). 2018;5(4):131-140
pages 131-140 views

Issues of Application of Article 171 of the Criminal Code of the Russian Federation in the Field of Passenger Transport by Air

Sankov V.I., Perederiy V.A.


The presented article examines and analyzes problematic issues of application and interpretation of legal norms in the examination of communications and the investigation of criminal cases on illegal business (crimes under Art. 171 of the Criminal Code), in the provision of services for the carriage of passengers by air, on the specified type of activity, if air transportation is carried out with an excursion and other cognitive purpose. In particular, we are talking about the spread in recent years of the provision of paid services for the transportation of passengers by air for the purpose of sightseeing and familiarization flights, for the implementation of which, in the opinion of air carriers, a special permit (license) is not required. In addition, the question arises about the validity of the recognition of such entrepreneurial activity, especially if the airline that provides the service is a non-profit partnership. Activities in this area are examined on specific examples: similar services for aerotourism and helicopter excursions are provided, in particular, within the framework of the Heliport of Russia project, whose goal is to create the largest network of modern multifunctional helicopter systems throughout the country. From the decision of these questions depends presence or absence of signs of the given crime. Based on the analysis of legislation, various points of view of specialists, as well as judicial practice, the authors state their position and propose ways of solving these problems. The authors believe that in the presence of necessary conditions (extraction of income as a result of activity in a large or especially large amount), the activities of non-profit partnerships for the transportation of passengers by air transport while providing services for their excursion services, as well as «aerotaxi» services without an appropriate license, may contain a composition a crime under Art. 171 of the Criminal Code.
Russian Journal of Legal Studies (Moscow). 2018;5(4):141-146
pages 141-146 views

Subjective Attitude to the Injuryunder Circumstances Precluding the Criminality of the Act (Chapter 8 of the Criminal Code of the RF)

Pitetskiy V.V.


The article deals with the question of the subjective attitude towards causing harm in circumstances precluding the criminality of the act. in the science of criminal law he is not given due attention. The solution of this problem contributes to the correct determination of the cases of causing harm in the absence of the necessary subjective signs of a crime, as well as the correct qualification of crimes in general. On the basis of different approaches to the concept of subjective attitude and guilt in criminal law, their correlation with injury in criminal law is analyzed, as well as the circumstances in which the criminality of an act is excluded. Analyzes the contents of subjective attitude in individual cases stipulated by the criminal law (Chapter 8 of the Criminal Code of the RF). There are situations where the mental attitude to the consequences is the same as in any other act of lawful behavior. These include the necessary defense, the detention of the offender, emergency. The case is substantiated when the subjective attitude to the damage caused is generally absent due to the lack of objective signs of the act or the indirect nature of the cause: physical coercion, execution of a mandatory order or instruction. It is concluded that with a reasonable risk only formal signs of reckless guilt appear, but there are no meaningful signs that would indicate that a person has a negative subjective attitude. The results of the study may be important for the correct application of criminal law in this area.
Russian Journal of Legal Studies (Moscow). 2018;5(4):147-152
pages 147-152 views

Modern Features and Law-Enforcement Problems of the Operational-Search Measure «Inspection of Premises, Buildings, Structures, Sections of Terrain and Vehicles»

Golikov A.A., Larinkov A.A.


The article deals with the actual law enforcement problems associated with violations of legal norms by the bodies engaged in operational-investigative activities in the course of conducting and documenting operational-investigative activities «inspection of premises, buildings, structures, areas and vehicles». The analysis of norms of the Federal law of 12.08.1995 No. 144-FZ «About operational search activities», the criminal procedure code of the Russian Federation, departmental normative acts, decisions of the European Court of human rights and the constitutional Court of the Russian Federation, Plenum of the Supreme Court of the Russian Federation, and also the practice of prosecutorial supervision over implementation of laws in the implementation of operative-search activities, identified various approaches to the assessment of the legality of the survey of housing in the framework of the operational-search measures «inspection of premises, buildings, structures, areas and vehicles». On the basis of the obtained data, the problems were identified and some prospects for the development of the operational search activities were identified. The authors in this paper propose possible solutions to the identified law enforcement problems and measures to further develop the possibility of using the information obtained during the operational-search activities «inspection of premises, buildings, structures, areas and vehicles» for the formation of criminal procedural evidence in criminal cases. The authors state their position on the basis of the analysis of the current operational-investigative, criminal-procedural legislation and prosecutorial-Supervisory practice. The methodological basis of the study was made by General scientific and special methods of knowledge of law enforcement problems of conducting and documenting operational search activities «inspection of premises, buildings, structures, areas and vehicles», including the method of system-structural analysis, synthesis method, analysis method, comparative legal method, formal logical method, statistical method. As a result of the study revealed that the information obtained in the course of operational-search activities «inspection of premises, buildings, structures, areas of terrain and vehicles», can be the basis for the formation of criminal procedural evidence in criminal cases only in compliance with the legal norms of the bodies engaged in operational-search activities during the production and documentation of the operational-search activities. At the same time, the admissibility of evidence formed on the basis of the results of operational investigative activities presented in criminal proceedings is made dependent on the implementation of certain legal norms in the production of the operational investigative measures under consideration. In the legal literature, innovations in the legislation of Russia related to various aspects of conducting and documenting operational search activities «inspection of premises, buildings, structures, areas and vehicles» traditionally cause a lively discussion. However, up to the present time in science and did not have a consensus on the concept and essence of the considered operational search activities. Analysis of the practice of prosecutorial supervision over the execution of laws in the implementation of operational-search activity indicates different approaches to assessing the legality of the operational-search activities. Thus violations of the legislation in practice of the bodies performing quickly-search activity during carrying out quickly-search action «inspection of rooms, buildings, constructions, sites of the district and vehicles» is very difficult task. First of all, due to the high requirements of operational-search and criminal procedure legislation, the results of operational-search activity, to the process of proof in General, and to certain types of evidence that are formed in criminal proceedings on the basis of the results of operational-search activity.
Russian Journal of Legal Studies (Moscow). 2018;5(4):153-159
pages 153-159 views

The Concept and Classification of Remedies for Convicts: Problematic Issues of Legislative Regulation

Gorban D.V.


In presented article the author attempts a comprehensive analysis of the purpose of the penal law, as the correction of convicts, as well as its fixed assets. The relevance of the chosen topic actual the fact that the search for new ways and means of correction of convicts is one of the modern trends of reforming criminal-executive system. The aim of correction condemned is secured in the criminal and criminal-executive legislation, however, in the literature it is a lot of debate. A controversial issue is the consolidation of the list of fixed assets of correction condemned, to which the authors propose to assign treatment, psychological work, etc. the purpose of correction condemned, and therefore the study of this process more actual in terms of rising every year numbers of recidivism. Because the rate of recidivism is directly linked to the effectiveness of the correctional institutions of the penal system. In this paper, the analysis includes consideration of different points of view of scientists on the concept of «rehabilitation of offenders», the identification of shortcomings of this concept and proposal author. The second focus of the study is the question of the classification of fixed assets of correction condemned, and also fastening of additional means of correction in the penal law. In the preparation and writing of scientific articles were used methods of analysis and synthesis, as well as the dialectical method of scientific knowledge. In conclusion, the author summarizes the main results of the conducted research and proposes a concept of prisoners, the classification of assets corrections for basic and optional.
Russian Journal of Legal Studies (Moscow). 2018;5(4):160-169
pages 160-169 views

Criminological Dimension of Environmental Crime

Tymoshenko Y.A.


Despite the increased public danger and the prevalence of criminal attacks on the environment, statistics show that since 2010 the officially registered environmental crime has a negative trend. The reasons for this are many, and they are, as shown by the study, to a greater extent subjective. The fact that the legislator classifies the majority of criminal violations of the environment (60%) as minor, difficulties in investigating the facts of criminal pollution of the environment, the minimum Statute of limitations of criminal liability lead to the fact that combating environmental crimes is not a priority in the activities of law enforcement agencies. As a result, the reduction in the number of registered environmental crimes occurs against the background of the growth of administrative offenses. This is facilitated by the lack of clear, regulatory features that allow to distinguish between these types of responsibility, which often leads to an excessively broad law enforcement discretion. According to the results of the study, the level of latency of criminal attacks on the environment is 30-60% on the facts of illegal extraction of biological resources and 70-90% on the facts of environmental pollution. Increased latency of crimes related to the negative impact on natural objects, contributes to the poor design of their compositions as material.
Russian Journal of Legal Studies (Moscow). 2018;5(4):170-181
pages 170-181 views

Prosecutor’s Supervision and Management of the Inquiry on Political Crimes in the Russian Empire (Regulatory Framework)

Gorbachev V.P.


The article, based on the normative and archival materials, considers the issues of prosecutor’s supervision and management by the gendarme and the police inquiry about political crimes in the Russian Empire after the judicial reform of 1864. The inquiry of such crimes was of two types: formal (criminal procedural) and administrative (protective). The Prosecutor’s office managed directed by inquiry by giving instructions on cases. The supervision was manifested itself in the coordination with the Prosecutor’s office of certain actions of the gendarmerie and the police officers, in the presence of prosecutors during investigative actions, in studying the materials of the inquiry, cancellation of illegal decisions, reviewing complaints about the actions of the gendarmerie and the police, addressing issues of responsibility for violations, etc. Forms and features of Prosecutor’s supervision for each of the specified types of inquiry are considered. It is concluded that the Prosecutor’s supervision and management of the inquiry in political cases had limited legal capacity. At the same time, compared with the management and supervision of the police inquiry on common crimes, the formal inquiry on political crimes was under more careful supervision of the Prosecutor’s office, which responded (though not always) to the revealed violations. At the same time, protective proceedings, which most affected the personal inviolability of citizens, the law almost completely withdrew from the Prosecutor’s supervision. Despite this, gradually, departmental regulations and practice have developed some forms of the implementation of prosecutorial supervision and over protective proceedings. Considered some of the inaccuracies that occur in the literature when reporting on issues of prosecutorial supervision over the investigation of political crimes.
Russian Journal of Legal Studies (Moscow). 2018;5(4):182-191
pages 182-191 views

Philosophy of Law and Philosophy of Crime and Punishment (Review of the Monograph of Bochkarev S. A. «The Philosophy of Criminal Law: Statement of a Question». M.: Norma, 2019)

- -.


The article is the review of the monograph of Sergey Aleksandrovich Bochkarev, PhD in Law, head of the laboratory of political and legal researches of Moscow State University named after M.V. Lomonosov, «The philosophy of criminal law: statement of a question». Analyzing the monograph, the reviewer draws attention to the author’s main approaches to understanding the philosophy of criminal law both in Russia and abroad, assesses the author’s analysis of the development of philosophical thought in the field of criminal law, and also considers the basic theoretical and philosophical aspects of the work. The reviewer comes to the conclusion that not only «statement of a question», but also the full development of the philosophy of criminal law in Russia seems to be extremely relevant. The review gave a positive assessment of the theoretical aspects of the work, also approved the author’s manner of linking the philosophies of the topic under consideration with current problems of modern society (this is the best way to look for constructive approaches to solving these problems). The reviewer believes that raising the question of the philosophy of criminal law is extremely relevant and highly values the work under review.
Russian Journal of Legal Studies (Moscow). 2018;5(4):192-197
pages 192-197 views

Murtuz Aleskerov - 90

Imanly M.


The article is dedicated to the memory of Murtuz Aleskerov, a famous socio-political and statesman, honored lawyer, professor. M. Aleskerov left a significant mark in modern history as an active social and political figure and an outstanding scholar in the field of law, who devoted his entire adult life to jurisprudence.
Russian Journal of Legal Studies (Moscow). 2018;5(4):198-199
pages 198-199 views

This website uses cookies

You consent to our cookies if you continue to use our website.

About Cookies