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Moscow Juridical Journal

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No 3 (2019)
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ТЕМА НОМЕРА: ПРАВОВОЕ ОБЕСПЕЧЕНИЕ ГОСУДАРСТВЕННОЙ СЕМЕЙНОЙ ПОЛИТИКИ РОССИЙСКОЙ ФЕДЕРАЦИИ

9-17 260
Abstract
The aim of the article is to substantiate the systemic significance of the principles of Family Law in its improvement. The study focuses on possible forms of legal support for the implementation of the program provisions of the Concept of the State Family Policy of the Russian Federation. The analysis of state expectations in the field of legal protection of the family allowed the author to identify specific solutions to existing problems of legal regulation both at the level of creating (re-creating) the family and in the context of the implementation of certain family rights and obligations. In this case, the basis of judgments is the understanding of members’ individual interests as family interests. In accordance with the Concept, an assessment is given of some useful models of other countries’ family policies aimed at reforming the spheres of legal regulation related to Family Law. The practical value of the study lies in developing modern understanding of the principles of Family Law, which can assist lawmakers in producing new legal standards. The author concludes that being a systemic entity, family legislation can adopt only those matters that do not contradict its systemic nature.
18-26 76
Abstract
The aim of the study is to analyze the status of custody bodies involved in the consideration of child abduction cases according to the Convention. The research methodology includes: general scientific method of dialectical cognition of reality, systemic, structural and functional, formal legal methods, analysis and synthesis. The author has identified different approaches in the application of certain provisions of family and procedural law by the courts concerning what custody body should be involved in the case and the purpose of this involvement. In conclusion it is argued that for effective and motivated participation of custody bodies in child abduction cases the issues of their involvement should be clarified. Theoretical and practical value of the research is due to the growing number of the court cases under study, which requires from custody bodies a high level of legal proficiency as court decisions affect the legitimate rights and interests of children. Some conclusions and proposals formulated in the article can be useful for further investigation.
27-41 313
Abstract
The purpose of the study is to identify family values through the analysis of recent publications on Family Law. The research methodology includes comparative method, analysis, logical and historical approaches. The paper traces the tendency in Russian legal science to study Family Law from the standpoints of both Secular Law and Canonical (Church) Law. The novelty of the research lies in the identification of family values that manifest themselves at the level of legal regulation, law enforcement and doctrinal thinking: attitude to marriage as a voluntary union of man and woman, recognition of only officially registered marriage, the right to know about one’s origin, the right to guard personal (family) secrets, the right to international marriage and its protection, freedom of divorce, the right of the child to the family (priority of family education of children), the right to private and family life and etc. The author concludes that if in the past family values were considered as communal, in recent decades the accent has shifted to support and protection of individual rights of family members (underage children, spouses and others), i.e. subjective rights. The Russian state, on the one hand, stresses the importance of the registered marriage and traditional family values, but on the other hand avoids discriminating out-of-wedlock children, international spouses or parents living separately from their children.
42-50 153
Abstract
This article is devoted to the study of the role of modern notary in matters of ensuring the state family policy of the Russian Federation, the purpose of which is to provide the necessary conditions for the family to fulfill its functions and improve the quality of family life, which, according to the author, cannot be achieved without a specific legal mechanism to protect its rights members and families in general. The notary activity in the article is considered as a special form of ensuring the protection of family rights. The article identifies a range of family-legal transactions certified by a notary; it identifies and analyzes certain problems of legal regulation of issues related to the departure of minor children outside the Russian Federation without being accompanied by their legal representatives. The application of the method of system and comparative analysis allowed the author to identify the scope of authority of the notary in ensuring the protection of family rights at the present stage and on the basis of a comprehensive analysis of the norms of family law, legislation on notaries, to conclude that the notaries have the potential to ensure the protection of family rights, to suggest certain ways to improve the existing legislation in the field of study. The findings of the study and individual proposals can be used as a basis for further research on this issue and used in the legislative process.
51-59 152
Abstract
The purpose of the study is to achieve legal certainty in determining the composition of the hereditary property, which is aimed at ensuring the protection of the rights and legitimate interests of the participants in the inheritance relationship. The article discusses the legal procedures related to the implementation of the rights of the surviving spouse. For the purpose of the study, theoretical methods of formal and dialectical logic, empirical methods of comparison, description, analysis were used. As a result of the study, approaches to determining the content of common joint property in the composition of the hereditary property, the legal facts necessary for the termination of the common joint and the emergence of common ownership of spouses are determined. Identified the problem of determining the legal nature of the statement of the spouse about the absence of his share in the joint property. The conclusions and suggestions of the study can be used in further research of the institute of common joint ownership, as well as in improving legislation.
60-67 257
Abstract
The article aims at a comparative analysis of the models of legal regulation of family relations that existed in the Russian Empire and in the early Soviet period. The author analyzes Family Law standards in pre-revolutionary Russia and compares them with the provisions of the first Marriage And Family Code of 1918. The methodology of the article is constructivism of post-classical jurisprudence. Some ideas lying at family and marriage construction by the state are revealed. It is concluded that after the revolution, the change in the model of marriage and family regulation was inevitable due to such factors as the separation of church and state, elimination of class system and class privileges. The results of the research can be used in further research on the history of Family Law, as well as for teaching the history of state and law to law students.
68-78 119
Abstract
The author sets his goal on to consider the problem of legal resolution of marital conflicts in the 19th century Russia by example of Leo Tolstoy’s character relationships. The study is based on the materials from archival funds, legislation and judicial practice of the period under study. The author concludes that neither Orthodox Church nor state bodies in 19th century had effective means of solving family problems, with some funds being even eradicated for some reasons. The article is recommended for historians of law, as well as specialists in the Russian Family Law.
79-88 100
Abstract
The article explores the problems associated with the implementation of subjective family rights by example of the execution of court rulings on non-property lawsuits from family relations, including the upbringing of children. The research methodology includes analysis, comparative method and historical approach. The author analyzes the properties of court rulings, norms of Family Law, and comes to the conclusion that the means and methods of execution of court rulings on this category of disputes are provided by legislation. They are an extreme measure that enforce the implementation of subjective rights, protection of children’s rights, respect for the rule of law. The practical value of the study lies in its promoting Family Law improvement and the novelty of it is in the discovery of the principle of real implementation of subjective family rights proved not only theoretically, but by examples.

THEORY AND HISTORY OF LAW AND STATE; HISTORY OF TEACHINGS ON LAW AND STATE

89-99 125
Abstract
The article substantiates the urgency of the task of improving the legal space on the basis of the separation of law and legislative acts as important elements of fair regulation of social relations and effective tools for social integration, taking into account a variety of interests. The author expresses a concern about the lack of decisive steps to “materialize” the law in the legal space of Russia, and provides arguments confirming this point of view. An attempt to correct the liberal-individualistic approach to legal understanding with the ideas of solidarism is critically examined. The article points out the shortcomings of the solidarity approach allowing to shift the burden of responsibility to the less protected (individuals or civil society) in case of «insufficient expression» of some interests provoked by a joint absorption, which does not contribute to the integration of the Russian society, increasing social polarization in it. The author favours liberal-individualistic approach to legal understanding (dominating in today’s world theory and practice) with its focus on the formation of truly legal instruments for expression and protection of special interests, introduction of competitive principles preventing state interests from dominating over the interests of individuals and civil society.
100-115 93
Abstract
In his research, the author sets the goal to determine what a safe state should be from the perspective of the modern theory of law. The research methodology includes methods of comparative studies, theoretical modeling and analysis. The novelty of the study lies in the development of the author’s approach to understanding the signs of a safe state. A safe state is a state built on the principle of transparency, the implementation of which will give all residents a guaranteed sense of current stability, as well as confidence in their own development. The author’s idea of the state is based on the definition given in the Convention on the Rights and Obligations of States, from which it follows that the state is a territory, population and effective power. The security of the state is determined by some regulatory factors related to the state structure, official fiction of the state, law enforcement and judiciary power. The author concludes that the problem lies not only in violation of law, but also in the very essence of law, which is the basis of the political system and the form of its application by the ruling elites. The use (application) of law depends on the political interests of parliamentary parties elected by popular vote, which by itself is a sign of people’s participation in political processes of the country.

CONSTITUTIONAL LAW; CONSTITUTIONAL LAWSUIT; MUNICIPAL LAW

116-130 607
Abstract
The aim of the study is to identify the constitutional and legal result of the Islamic revolution of 1978-1979 in Iran. Based on the analysis of the text of the Constitution of the Islamic Republic of Iran, the theoretical works of the Spiritual leader of the revolution Imam Khomeini, the Iranian model of the state based on religious spiritual and moral principles is considered, the constitutional mechanism of the distribution of state power, the role of Rahbar, the features of the constitutional system of Supervisory mechanisms are analyzed. The research methodology includes the methods of analysis and synthesis, legal comparativistics, formal-logical and legal-dogmatic method. The study concludes that the Islamic revolution in Iran is one of the Great revolutions that changed the fate of the world. It restored modern constitutionalism with vital for humanity spiritual and value orientations and created a constitutional form of a moral state. Imam Khomeini’s spiritual and value approaches have not only been constitutionally enshrined, but also successfully implemented for 40 years. The author emphasizes the importance of the Islamic Republic of Iran’s experience for the constitutional development of the Russian Federation. The results of the study can be used at reforming the Constitution of Russia and other countries, in education, as well as in educational literature on the theory of state and law, and constitutional law.
131-140 99
Abstract
The article aims to identify the problems in counteracting terrorism and extremism on the territory of the Russian Federation and to suggest possible ways to solve these problems through the interaction of state and local government bodies. The research methodology includes: formal-legal and comparative-legal analyses. The author has identified legal gaps, problems of law enforcement and made proposals for their solution. The basic provisions used in the study contain a systemic-functional approach to the effective interaction of the unified public authorities of the Russian Federation. The results obtained in the course of the study can be used in law making and law enforcement activities of federal, regional and municipal authorities within the frameworks of their competences.

CRIMINAL LAW AND CRIMINOLOGY; CRIMINAL-EXECUTIVE LAW

141-148 90
Abstract
Self-control is a most important personality characteristic to explain human behavior. The family is the most important social institution to develop self-control of children and juveniles. The parental supervision and the attachment to the parents are the basic factors of family socialization, which affect self-control. The main assumption of this paper is to describe these predictors for the future research on the example of Russian sample. The theoretical background is framed by the Gottfredson and Hirschi`s general theory of crime.

SCIENTIFIC LIFE



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