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Moscow Juridical Journal

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No 2 (2022)
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CIVIL SOCIETY AND THE STATE

7-14 158
Abstract

Aim. Identify new areas of interaction between civil society institutions and the state in terms of solving social issues of society to submit proposals for improving the legislation of the Russian Federation.

Methodology. The study focused on the analysis of regulatory legal acts and the current situation in the field of social policy of the country. The methods of a historical, formal-logical approach to the presentation of the main theses were applied.

Results. Proposals have been made to the legislation; in particular, the need for legal consolidation in the practice of the institution of public mentoring for the effective interaction of the state and traditional religious faiths of Russia is justified. It is proposed to include in the functionality of a public mentor representing a traditional denomination, accompanying orphans, who inherit, to prevent illegal actions of third parties.

Research implications. The conclusions made in the course of the study are aimed at improving legislation and law enforcement practice in the field of ensuring and protecting the rights of certain categories of citizens in the Russian Federation, the role of the Russian Orthodox Church in resolving issues of the state’s social policy, and providing assistance to refugees during the implementation of the sanctions policy of individual countries is indicated. The results of the work can be used not only in law enforcement, but also in the process of teaching the theory of state and law.

15-24 175
Abstract

Aim. Identify a number of relevant aspects and trends in the historical and modern development of law and statehood in Africa.

Methodology. During the study, the historical-legal, comparative-legal method, formal-logical and dialectical methods were applied.

Results. The study highlighted the features of the genesis and development of law on the African continent in the pre-colonial, colonial and post-colonial periods. The conclusions obtained during the study made it possible to determine the reasons for the contradictions between the social regulators of indigenous African peoples and European law, the emergence of crises in the field of state management related to colonization and not resulted from the natural evolution of African societies. Proposals have been put forward to implement the Africanization of African law and the State through a change in legal ideology through the granting of broad participation rights in the management of the affairs of the State to African families and their associations, legal education and the organization of sectoral legal research.

Research implications. The results of the study contribute to the theory of law and comparative law, creating the prerequisites for the development of theory and types of legal understanding and further in-depth conceptual study of theoretical and legal categories.

25-33 154
Abstract

Aim. To analyze legal goals and means through the prism of their dialectical coexistence in the mechanism of legal regulation.

Methodology. The fundamental research method was materialistic dialectics, which, in particular, made it possible to comprehensively analyze the coexistence of goals and means in the mechanism of legal regulation, their interconnection and interdependence. The formal legal method in combination with the laws of formal logic made it possible to formulate the author’s definition of the legal regulation mechanism with an emphasis on the instrumental approach to the category under consideration, as well as to consistently consider the role and significance of legal goals and means at all stages of the legal regulation mechanism. The article also used a structural-functional approach, analysis and synthesis, actively applied the provisions of hermeneutics, which allowed the author to isolate the functions of legal goals and means in legal regulation.

Results. The concept and main elements (stages) of the mechanism of legal regulation are analyzed with an emphasis on the role that legal goals and means play in their implementation. The conclusion is substantiated, according to which the effectiveness of the mechanism of legal regulation is predetermined by legal goals and means in their socially conditioned development and also by the results to which the use of legal means leads to.

Research implications. It is emphasized that incorrectly formulated, socially unconditioned or deliberately distorted legal goals initially undermine the potential of any legal means and, thereby, reduce the effectiveness of the mechanism of legal regulation. At the same time, it is noted that the inefficient use of legal means that is not conditioned by social realities undermines the potential of any legal goal, makes it practically unattainable, does not lead to the required result, which also eliminates the demanded capabilities of the mechanism of legal regulation. These conclusions and generalizations contribute to the development of the theory of state and law, legal instrumentalism, and also lead to more effective law-making and law enforcement activities.

34-41 175
Abstract

Aim. To identify the place and significance of legality in the proposed concept of formal and meaningful grounds for law and order.

Methodology. The work uses various both general and private scientific methods: formal-logical, dialectical, analysis, historical-legal, formal-legal. An original combination of sociological and axiological methodologies is also used.

Results. Having tried to comprehend the category «legality» from various positions, the author comes to the conclusion that the phenomenon in question is an expression of the formal foundations of law and order; it is incorrect to combine legality with various substantive characteristics (socialist or bourgeois legality, etc.); the state’s activities to strengthen legality can be of both functional and dysfunctional

Research implications. The results of the study make a certain contribution to the development of one of the fundamental branches of science of the theory of state and law - the problem of law and order, as well as their relationship.

42-50 178
Abstract

Aim. To reveal the actual problems of the theory and methodology of reflection in the constitutional legislation of the concept, essence and content of the new legal definition of «continuity in the development of the Russian state»; to conduct an analysis of the provisions of Art. 67.1 of the Constitution in terms of the extent to which the national, historical, cultural, spiritual values enshrined there reflect the successive development of the most important domestic public law institutions of the Russian statehood, provide their integral historical context and are an indicator of the constitutional identity of Russia, which is especially significant against the background of ever more pronounced globalization of international relations.

Methodology. The work uses general scientific methods (system analysis, dialectical, formal-logical) and special research methods (systemic-legal, comparative-legal, historical-legal, formal-legal). Their application made it possible to formulate the essential characteristics of continuity in the development of domestic public law institutions.

Results. Theoretical-methodological and scientific-practical issues of the formation and development of the methodology of the succession of the Russian state as fundamental legal regulators that determine the constitutional identity of Russia are revealed. An assessment and forecasts of the evolution and systematization in the constitutional legislation of national, historical, cultural, spiritual values are given in the context of the sanctions policy strengthening by the united West, aimed at the political, economic, social, cultural, legal isolation of Russia from the rest of the world. In the constitutional and legal aspect, the processes associated with the desire of the Russian Federation to oppose to individual modern «Western values» the traditional centuries-old social foundations of the organization of Russian society are analyzed.

Research implications. The conclusions made in the article can be used as the basis for further scientific understanding of the constitutional and legal development, contribute to subsequent general theoretical studies of problems in the sphere of legal policy formation. It is also assumed that it is possible to use the results of the research in the educational process when teaching the course of constitutional law.

CIVIL LAW; ENTREPRENEURIAL LAW; FAMILY LAW; INTERNATIONAL PRIVATE LAW

51-57 1130
Abstract

Aim. To investigate the problems arising in the implementation of the right of citizens to pension provision

Methodology. Methods of analysis, comparison, dialectics, forecasting were used in the study.

Results. The article discusses controversial issues related to the right to choose a pension, pension classifications, conditions for the appointment of pensions established for long service by various categories of citizens, including federal state civil servants and law enforcement officers. Russian and foreign researchers’ points of view on pension provision are analyzed as a type of social security of the population ensured by the state. Conclusions are drawn that it is necessary to amend the current legislation at the state level to eliminate gaps related to the social security of law enforcement officers who have left the Russian Federation for permanent residence.

Research implications. The results of the study contribute to the science of public and labor law and the organization of pension provision in the territory of the Russian Federation.

58-68 177
Abstract

Aim. To investigate the problems of acquiring ownership of mismanaged energy facilities and develop proposals to overcome them.

Methodology. During the study, general scientific (dialectical) and special (formal-legal, comparativelegal, technical-legal, systemic, empirical, statistical) methods of cognition, methods and techniques of formal logic (analysis, synthesis, induction, deduction, etc.) were used.

Results. The article discusses the main problematic issues of the legal regime of mismanaged property in the energy sector, related to its maintenance, repair and operation, responsibility for reliable and high-quality supply of energy resources to consumers, compensation for the incurred expenses for the operation of the mismanaged energy facilities, the procedure for acquiring ownership of mismanaged energy linear facilities. It is proposed to use a single method of determining such an organization for all energy sectors as an alternative mechanism for choosing an operating organization, which consists in assigning the obligation to maintain, repair and operate an ownerless energy facility to the guaranteeing operating organization. It was concluded that the implementation of the norms of the Civil Code of the Russian Federation on the acquisition by operating organizations of ownership of ownerless linear objects is possible only after eliminating contradictions in the provisions of Art. 225 of the Civil Code of the Russian Federation and after making necessary changes to the legislation on state registration of property and civil procedure legislation.

Research implications. The research contributes to the development of the theoretical basis of the institution of acquiring property rights on the mismanaged objects on the example of the mismanaged energy facilities and can be used in the framework of civil and civil procedure law.

69-78 1027
Abstract

Aim. To substantiates the existence of the stages of offer and acceptance when concluding an agreement between those present (inter presentes), which is denied in many modern publications on Russian law.

Methodology. The legal doctrine on the issue of concluding a contract, including non-classical approaches to contractual regulation, has been studied. The methods of empirical legal research are used to determine the correlation of legally predetermined ideas about the contract with real contractual work.

Results. It is concluded that the qualification of the draft agreement signed by one of the parties as an offer in the courts of Russia is theoretically correct and axiologically meets the goals of the existence of the concept «the moment of conclusion of the contract».

Research implications. The results of the study allow us to consider such modern phenomena as clickcontract, wrap-contract through the prism of the offer-acceptance scheme. In addition, the opponents of this scheme universality receive arguments for further refutation in the course of scholar discussion.

79-88 123
Abstract

Aim. Analysis of the current state of ensuring economic security by internal affairs bodies (ATS) in the sphere of oil and petroleum products turnover.

Methodology. The practice of the Department of Internal Affairs on the identification and disclosure of economic crimes in the sphere of oil and petroleum products turnover is summarized. The circumstances and methods of committing these crimes are studied, examples are given.

Results. The problems arising when the internal affairs bodies perform the task of decriminalizing the sphere of oil and petroleum products turnover are analyzed. The ways of their resolution are outlined.

Research implications. Legal and organizational proposals aimed at improving the provision of economic security by the internal affairs bodies in the sphere of oil and petroleum products turnover are formulated.

CRIMINAL LAW AND CRIMINOLOGY; CRIMINAL-EXECUTIVE LAW

89-99 209
Abstract

Aim. To investigate crime and its main features, components and functions; and give them an adequate definition.

Methodology. 45 years of experience in criminological research, including at least 300 clinical interviews with criminals deprived of their liberty are the basis of this research. Theoretical analysis of criminological literature was performed. Results. An understanding of crime is proposed, its definition is given, the main features and elements are described.

Research implications. An attempt to improve the scientific apparatus of criminology, as well as to identify the hidden features of crime, is made. Theoretical searches of this kind are significant for organizing practical activities to combat this phenomenon and predict it.

100-106 124
Abstract

Aim. To examine the peculiarities of the criminal law assessment of the use of zoological violence against a representative of power in the commission of the act under Art. 318 of the Criminal Code of the Russian Federation.

Methodology. The methodological basis of the study was the dialectical method of cognition of social phenomena. In addition, in the course of the study the author used methods of analysis and synthesis, systemic and comprehensive methods.

Results. The characteristic of zoological violence as one of the methods of application of violence against a representative of power is given. Special attention is paid to the qualification of the analyzed acts. On the basis of the results of generalization of the judicial practice, two most typical situations of zoological violence use against the representatives of power were singled out.

Research implications. The results of the study obtained by the author deepen and expand the existing scientific knowledge in terms of criminal law counteraction to the use of violence against a representative of power, if such is committed by means of zoological violence. They can be used in the activities of law enforcement agencies and for further scientific research.

107-112 132
Abstract

Aim. To reveal the peculiarities existing at the stage of establishment and research of actual circumstances of causing damage to the criminally protected object during the application of criminal law standards regulating necessary defense, with reference to the situations of use of firearms by police officers that will allow avoiding qualification mistakes.

Methodology. During the study a dialectical approach to the disclosure of legal phenomena and processes was used. General scientific (systemic, logical, analysis and synthesis) and private scientific methods (formal-legal, linguistic-legal) were used. Norms of criminal and criminal-procedural legislation, Resolutions of Plenum of the Supreme Court of the Russian Federation and law enforcement practice were subjected to analysis.

Results. From the theoretical point of view the provisions are formulated, which allow increasing the efficiency of application of the norms regulating necessary defense, with regard to the situations of use of firearms by police officers.

Research implications. In practical terms the implementation of conclusions formulated in this article can contribute to the creation of additional grants for correct application of norms in respect of legal assessment of the actions of police officers, who used firearms.



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ISSN 2949-5091 (Print)
ISSN 2949-513X (Online)