No 4 (2020)
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ТЕМА НОМЕРА: ПРОБЛЕМЫ ОГРАНИЧЕНИЯ ПРАВ И СВОБОД ЧЕЛОВЕКА И ГРАЖДАНИНА
10-22 113
Abstract
Aim. To characterize the constitutional narratives of restriction of human rights and freedoms - values (goals), methods and principles. Methodology. Methods of comparative analysis, system analysis, generalization, and modeling were used in the study. Results. The constitutional formalization of the restriction limits of rights and freedoms is justified using well-established constitutional narratives that create a universal constitutional algorithm in the system interaction. The article notes the expediency of constitutional values (goals) systematization that determines the limits of the rights and freedoms realization, constitutional regulation and judicial application of methods and principles of rights and freedoms restriction. Research implications. The results of this research can be used for research purposes and in the law enforcement practice. Besides, they can be useful for the legislators.
RESTRICTIONS ON FREEDOM OF CONTRACT IN RELATION TO THE PRESENCE OF A «WEAK» PARTY IN LEGAL RELATIONS
23-29 106
Abstract
Aim. To study the principle of freedom of contract, consider restrictions on freedom of contract as restrictions on civil rights, establish the relationship of restrictions on freedom of contract with the presence of a «weak» party in legal relations. Methodology. An attempt has been made to consider the restrictions on civil rights emanating from the subjects of legal relations themselves, and not from the legislator, as it is traditionally considered. The following methods were used in the study: general scientific ones (analysis, synthesis, deduction and induction) and the formal legal one. Results. Mechanisms of restrictions on freedom of contract are considered. It is revealed that restrictions on civil rights come not only from the state (legislation), but also from other participants in civil legal relations. Research implications. This study allows us to develop an approach to understanding the legal nature of the mechanism of restrictions on the freedom of contract in order to protect the rights of the «weak» party.
30-42 113
Abstract
Aim. Determination of the validity (expediency) of the introduction of the rule on the impossibility of prosecuting a police officer, taking into account the current rules on tort liability from the position of preventing restrictions on the rights of victims. Methodology. The method of system analysis, which allows you to present the norms of various industries as a single legal space; a comparative historical method that opens up the possibility of evaluating the experience of foreign legal regulation. Results. Optimal rewording of articles 1069, 1070 of the civil code in the part the presumption of guilt in this special tort is extended, as stated in article 1064 of the civil code and fixing non-guilt responsibility for all law enforcement actions, not just for those that caused unlawful consequences, stated at the moment in part 1 of article 1070 of the civil code. The article substantiates the inexpediency of introducing into the legislation the impossibility of prosecuting a police officer at the level of a general rule from the position of the threat of restricting the rights of victims. Research implications. The proposals are aimed at correcting the provisions of the current legislation that find their controversial application in judicial practice and at justifying the adequacy of the proposed changes in the legislation on the police.
THEORY AND HISTORY OF LAW AND STATE; HISTORY OF TEACHINGS ON LAW AND STATE
43-54 92
Abstract
Aim. To identify the regularities in the construction and functioning of information legislation as a complex systemic education. Methodology. The article analyzes the views of scientists on the stated issues and regulatory legal acts in this area. In the process of research, both general and particular methods of cognition were applied: dialectical, systemic, inter-sectoral, etc. Results. The basic regularities of the construction and functioning of information legislation and making proposals for improving legislation in the information and related spheres are identified. Research implications. Theoretical conclusions and legal proposals can be used for further development of doctrinal problems, preparation of concepts for draft laws and improvement of legal regulation, as well as in solving practical questions about the priority action of legal norms.
CONSTITUTIONAL LAW; CONSTITUTIONAL LAWSUIT; MUNICIPAL LAW
55-64 92
Abstract
Aim. To analyze the legal mechanism for the redistribution of powers between local self-government bodies and state authorities of a subject of the Russian Federation that has appeared in recent years in Russian legislation, including from the points of view of the principles of budget law. Methodology. The article considers the development of the principles of distinguishing between the competence of regional and municipal authorities in Russia. Using historical, logical and formal legal methods, the author analyzed the normative basis and law enforcement practice related to the redistribution of powers between local self-government bodies and state authorities of a subject of the Russian Federation. Results. The article concludes that the redistribution of powers between local self-government bodies and state authorities of a subject of the Russian Federation does not contradict either world practice or the foundations of the constitutional system of the Russian Federation. The author notes that financing from the budget of a subject of the Russian Federation for the exercise of redistributed powers is possible only if these powers cease to exist from the moment of adoption of the law of a subject of the Russian Federation on the redistribution of powers to relate to issues of local importance and become state powers of a subject of the Russian Federation. Research implications. The author substantiated the possibility of using a comprehensive legal mechanism that allows the subject of the Russian Federation by its law to transfer its own authority of the municipality to the category of delegated powers by the state, the demand for this mechanism in the Russian regions was noted.
65-78 83
Abstract
Aim. To determine the political and organizational dependence of parliamentary factions on the political parties in the CIS countries. Methodology. Based on the comparative legal analysis of the legislation and law enforcement practice, the author divides the CIS countries into groups on the degree of the political parties influence on parliamentary factions. Results. Legislative provisions that can be used to determine the degree of political parties influence on the party factions in the CIS member states are identified and systematized. Research implications. The proposed conclusions can be used to improve Russian legislation.
CRIMINAL LAW AND CRIMINOLOGY; CRIMINAL-EXECUTIVE LAW
79-94 151
Abstract
Aim. To identify the characteristics of criminal encroachment, provided for in article 239 of the criminal code of the Russian Federation that are not reflected in the disposition of the criminal law, and to submit the draft revision of the studied criminal law provisions taking into account qualifying circumstances. Methodology. On the basis of judicial practice, the characteristics of crime provided for in article 239 of the criminal code are discussed: mercenary purpose of the Director and a crime committed by an organized group. The research uses the methods of analysis, synthesis, interpretation of results, as well as the comparative legal and comparative historical ones. Results. In the course of work the signs characteristic for the criminal encroachment provided for in article 239 of the criminal code of the Russian Federation were singled out, and a draft of the new amendment to this article is presented. Research implications. The results of the study contribute to the science of criminal law and will be required for when amendments to the criminal code of the Russian Federation will be made, as well as in suppressing crimes, provided for in article 239 of the criminal code.
95-102 74
Abstract
Aim. To determine the criminal-legal aspects of exercising parental authority in relation to children. Methodology. The article considers the concept of parental authority, analyzes the forms and methods of implementing parental authority from the point of view of moral, socio-pedagogical and legally permissible aspects, and also conducts a comparative legal analysis of parental authority implementation on the example of the People’s Republic of China. Results. In the course of work the definition of “parent power” was formulated, criminal-legal aspects of parental authority realization were defined through the legislation of the Russian Federation. Research implications. The results of the research contribute to the theory of criminal law in Russia, and can also be used in law enforcement practice.
CIVIL LAW; ENTREPRENEURIAL LAW; FAMILY LAW; INTERNATIONAL PRIVATE LAW
103-111 106
Abstract
Aim. To analyze the prerequisites and conditions for creating the institution of public control in the field of public procurement. Methodology. The research uses the historical, formal-legal and comparative-legal methods. Results. The authors defined the main stages of the formation of the institute of public control in the state procurement system of modern Russia from 1991 up to the present. It has been proved that public control of public procurement is the result of the formation of a competitive economic space of the state order system. The analysis of federal legislation made it possible to state that until 2005 there were no mechanisms for controlling public procurement. The adoption of the legislation on placement of orders marked the creation of an institution of departmental control in public procurement. The introduction of federal contract legislation has expanded the possibility of exercising the control functions in state procurement by the society. Research implications. The work systematized legislative acts in the field of public procurement, which will contribute to go on with studying the history of the development of the institution of state orders public control.
112-122 742
Abstract
Aim. To analyze the principles of economic development in the systemic relationship with the principles of business law. Methodology. When conducting the research, general logical methods (analysis, synthesis, generalization) were used as general scientific methods, as well as specific scientific methods (formal legal and comparative legal) in their various combinations. Results. The authors emphasize that entrepreneurial relations are part of economic relations and, accordingly, the principles that form the basis of the Russian model of business law are closely related to the strategic, economic and social development of Russia. The system of principles of business law, on the one hand, is stable due to the consolidation of the basic provisions that determine the foundations of economic activity at the constitutional level; on the other hand, it is very flexible due to the specifics of the Russian economic model, as well as the institutions that make up business law. The article shows the principles that form the basis of the Russian model of business law and points out the principles that are innovative in the Russian model of business relations. Research implications. The results of this study can be taken into account by legislators, and also used in teaching the discipline «Business Law».
123-132 97
Abstract
Aim. To define the concept of family disputes, to identify the range of disputes where alternative settlement including the use of family mediation is possible, and in many cases is necessary. Methodology. The methods of system analysis, analysis and synthesis, normative, structural and functional, and comparative law were used in the research. Results. As a result of the research, the author’s definition of the concept of family disputes is formulated, their classification is developed. The authors come to the conclusion that family disputes are any disputes that affect the interests of the family, regardless of the branch of law governing the relations in which the conflict arose. Research implications. In order to objectively and fairly resolve family disputes, it is proposed to establish the principle of good faith and the provision on the inadmissibility of abuse of family rights in family legislation.
ПОЗИЦИЯ ЗАРУБЕЖНОГО УЧЁНОГО
133-138 70
Abstract
Aim. To compare the legislative rule of the Brazilian Law on General Data Protection (LGPD) and the European General Data Protection Regulation (GDPR). Methodology. The methods of analysis, synthesis, as well as the comparative and formal-legal methods were used in the research. Results. Similarities, key differences and specificity of the two normative documents are revealed.
SCIENTIFIC LIFE
ISSN 2949-5091 (Print)
ISSN 2949-513X (Online)
ISSN 2949-513X (Online)