Law

Features of “Risk” and its Manifestation in the Performance of the Court’s Procedural Duties

Introduction. Solving specific social and important tasks, industry legislation and law enforcement practice did not develop a unified approach to the definition of “risk”, which is predetermined by its versatility and its ambiguous interpretation in scientific works and modern legislation.

The aim of the study is to develop theoretical provisions that reveal the features of risk in civil proceedings. The author pays special attention to the most controversial features of risk – its applicability to the actions of the court, performing procedural duties. The article draws attention to the meaning of “risk” in the scientific and empirical aspects. The dialectical analysis allowed to evaluate the results of lawmaking and judicial law enforcement, historical and comparative methods of scientific knowledge contributed to an objective assessment of the quality of the current procedural legislation, the system method allowed to interpret the categorical apparatus on the example of the study of “risk”, the method of legal modeling served as a justification for proposals to improve the legislation.

Results. Risk is a category specific not only to the identification of the interest of the persons involved in the case. Risk, having an objective and subjective justification, is a fundamental category of procedural law, in which the freedom of choice of subjects of law is not limited only by permissible and administrative means, but it is justified by regulatory requirements for the obliged subjects. The traditional provision of procedural legislation on the procedural risks of the parties and other persons involved in the case is quite common and applicable for the court performing procedural duties.

Conclusion. In some cases, the reference to legislation providing for “risk” for the subjects of law is not always well-founded and reflects its ontological nature. The category “risk”, having a wide purpose in procedural law, expresses an example of the dispositivity of the Russian civil procedural legislation with the peculiarities of its legal regulation of certain legal institutions, on the one hand, and the procedural impossibility of determining the consequences of a legal action that may occur for the subjects of law applying it, on the other hand.

Legal Problems of Interaction between the State and Political Parties in Modern Russia

Introduction. The article substantiates the judgment about the lack of regulation of the issue of interaction between the state and political parties: the law stipulates neither the principles nor the form, nor the order, nor the sphere of interaction of political parties with the state. There is no mechanism for taking into account and implementing the recommendations and proposals of political parties in the state management sphere, which makes it impossible for political parties to have a real impact on state policy. Meanwhile, the legislation on political parties contains the requirements for the establishment, activities of parties, as well as the system of state guarantees in the information, financial and other spheres.

The purpose is to justify the idea that one can speak of unilateral impact of the state on the parties rather than of parity interaction of the state and political parties.

Theoretical analysis. The legislative regulation of interaction between parties and the state is enshrined only in article 10 of the Federal law “On political parties” in the form of a ban on mutual influence on each other’s activities, which is clearly not enough for effective cooperation. Namely, it should be a condition for the full development of political and state-legal systems. The lack of clearly defined principles, forms and methods of interaction between the state and political parties led, firstly, to the state’s influence on political parties, primarily through the system of financial and information resources provided to the parties participating in the elections, and, secondly, to selective control over the activities of political parties, which leads to inequality of the actual situation of the latter.

Conclutions. The analysis of the Russian legislation has shown that the multidimensional goal of creation and activity of political parties in Russia cannot be realized, as political parties are in subordinate position when interacting with state, as there are no effective guarantees and mechanisms of influence on the state legal life.

The Category of “Public Control” in the Constitutional Legislation of Foreign States

Introduction. This article analyzes the constitutional legislation of foreign countries for the existence of a normative consolidation of the category of “public control” in it. The article studies the legal and technical approaches to determining the content of this concept, applied in foreign countries, as well as general and specific features of the institutionalization of public control in national legal systems. The main goal of the work is to study the peculiarities of the legal understanding and the rightful implementation of public control in foreign countries.

Results. The author analyzes the norms of the constitutions of foreign states, which strengthen the foundations of democracy. The article shows the dependence of the use of the category of “public control” in the constitutional legislation of countries depending on the national peculiarities of the organization and functioning of political and legal systems. Particular attention is paid to the influence of the Russian legal system on the development of legislation in the sphere of public control in the CIS countries.

Сonclusion. The author comes to the conclusion that foreign countries rarely use the concept of public control, replacing it in most cases with the concept of civic participation, which presumes essentially identical forms and ways of interaction between the state and civil society.

The Legal Regime of State and Municipal Information Systems

Introduction. State and municipal information systems are the most important tools for building the platform of e-government and of the digital economy. Systemic study and improvement of their legal support is possible through the category of “legal regime”.

Theoretical analysis. Administrative and object legal regimes are singled out. The legal regime of information systems refers to the objective ones. The legal regime of the state (municipal) information system is a set of interrelated legal means to achieve the desired social effect of using the state (municipal) information system.

Empirical analysis. Structurally legal regime is a system of interrelated and interacting elements, among which normative and non-normative elements can be singled out. The purpose of establishing a legal regime, the principles of the institution of state and municipal information systems are of particular importance among non-normative elements. The block of normative elements is formed, first of all, by the norms determining the legal status of participants in information relations related to the creation and use of state and municipal information systems.

Results. There are the following mandatory regulatory elements of the legal regime of the state (municipal) information system: the purpose of creating and designating an information system; requirements for the composition and content of the information resource; requirements for technical, software, linguistic support of the information system; requirements for the processes of creating an information system (including commissioning, modernization, decommissioning); the legal status of information providers; the legal status of users of information; legal status of the information system operator.

“Legal Category” as a Tool of Scientific Knowledge (on the Example of “Land” as a Category of Constitutional Law)

Introduction. The article is devoted to the analysis of the role of the “legal category” as an independent methodological method, with the help of which the process of cognition of legal phenomena takes place. The conclusions are adapted on the “ground” as a constitutional-legal category.

Purpose. The main goal is to determine the methodological role of the “legal category” in the process of cognition of individual constitutional and legal phenomena and processes.

Results. The author determines the essence of the “legal category” as an instrument of scientific knowledge, explains the expediency of applying this methodological method to the study of “land” as a constitutional legal category, based on its multifaceted nature, a special constitutional and legal regime and special significance for the people and the state public land relations.

Сonclusions. The author comes to the conclusion that constitutional norms are a legislative form of expressing the category of land as a consitutional-legal one; the content of the constitutional-legal category of “land” is the cumulative representation of it as a constitutional value, part of constitutional principles and the object of constitutional relations.

Criteria for the Classification of Legal Principles: Substantive, Normative and Functional Approaches

Introduction. In article various approaches to classification of the principles of the right from positions of constitutional and legal regulation are considered. Theoretical analysis. On the basis of the analysis of various points of view the author comes to a conclusion that use of subject, standard and functional criteria to classification of legal principles is possible. The first is the cornerstone of traditional classification of the principles of the right depending on the sphere of their action or distribution. The second represents attempt to differentiate legal principles depending on a source of their standard fixing. The author considers a question of validity of legal principles. The principles of the right in difference from norms – rules of conduct don’t assume a binary way of permission of the competition between them in favor of one of them. Possible collisions of legal principles are resolved on the basis of search of balance of various imperatives. Results. On the basis of stated in article differentiation of the principles of the right by function – system and tool is offered. The first are emerdzhentny characteristics of legal institutes, branches of the right and the system of the right in general (depending on their level) and make impact mainly on the system of the corresponding precepts of law (principle beginning). The second function in legal system as direct criteria of law-enforcement activity and act as determinants of such activity (the principles – rules of conduct).

Equality of Floors in the Sphere of Family Relationships

Introduction. The article is devoted to the complex analysis of the constitutional legal regulation of the equality of rights and duties of men and women in the sphere of family legal relations. Discussion. The author analyzed the constitutions of the Soviet period with the aim of establishing the existence of a guarantee for the protection of the rights and interests of fathers (men) subject to gender discrimination. The author notes that certain advantages provided by the state, aimed at equalizing the legal status of men and women, apply only to women. It does not take into account the interests and rights of men who, as a result of providing women with appropriate benefits, may be violated, which can lead to discrimination against men on the basis of gender. Conclusion. As a result of the analysis of the constitutions of the Soviet period, the author comes to the conclusion that despite the fact that the Basic Laws of the Soviet period enshrined the principle of gender equality, they did not contain a guarantee of protection of the institution of paternity (with the exception of the 1978 RSFSR Constitution). The Constitution of the Russian Federation demonstrates a new approach to the family, highlighting both motherhood and paternity. The author notes that at present men are not provided with an actual guarantee for the state protection of the interests of paternity. Paternity is not included in the sphere of state policy, which leads to gender asymmetry in the status of mother and father in society. This is confirmed by the absence of an appropriate law aimed at regulating the relations of motherhood, paternity and childhood; not by establishing a guarantee of protection of the institution of paternity at the constitutional level.

Criteria of Scientific Character of Legal Knowledge and Practice of Their Application

Introduction. The complexity of the objects of legal influence, the enrichment of the theory due to the increment of new knowledge from non-legal spheres raise the question, firstly, about the demarcation of legal knowledge in the Humanities, secondly, about increasing the requirements for the accuracy of the object-subject area and the methodology of legal research, thirdly, about the formalization of legal phenomena in legal practice, finally, about the evaluation of the results of the research, in terms of their practical utility, social relevance. These issues cannot be solved without the application of scientific criteria of legal knowledge. The purpose is to identify a set of scientific criteria necessary and suitable for the standardization of legal knowledge. Theoretical analysis. It is necessary to form a system of disciplinary scientific criteria in law as a tool for assessing legal knowledge, which has a number of features (in particular, state-legal phenomena are complex unique systems, the analysis of which necessarily takes into account political and historical factors, worldview preferences of the researcher, the choice of research methodology, etc., and this increases the subjective moment in their assessment). This fact does not always allow uniform application of universal criteria for the standardization of legal knowledge. Conclutions. The problem of establishing the boundaries of the formalization and materialization of the state-legal phenomena is solved by applying a set of criteria of scientific character, allowing, first, to state the scientific significance of the objects of knowledge, and secondly, to withdraw the legal phenomena of abstraction (the sphere of tacit knowledge) into an object-subject area and give them a categorical status.

The International Standards of Restriction of the Rights and Freedoms of the Person and Citizen and Their Value for Law-making and Law-enforcement Activity in the Russian Federation

Introduction. The constitution of the Russian Federation allows 1993 possibility of restriction of the rights and freedoms of the person and citizen. One of conditions of establishment of restrictions of the rights and freedoms of the individual is their compliance to international human rights treaties. The main international documents in the sphere of human rights are the Universal declaration of human rights of 1948, the International Covenant on Civil and Political Rights of 1966, the International Covenant on Economic, Social and Cultural Rights of 1966, the European convention on protection of human rights and fundamental freedoms of 1950. The specified international acts of human rights of universal and regional character fix not only the list of the rights and freedoms, but also standards of their restrictions. Purpose. The purpose of article is identification and the analysis of the international standards of restriction of the rights and freedoms of the person and citizen, and also determination of their value for law-making and law-enforcement activity in the Russian Federation. Results. The analysis of the main international acts of human rights allowed to reveal the international standards of restriction of the rights and freedoms of the person and citizen: restrictions have to be set in definite purposes; restrictions have to be set only by the law; restrictions have to be proportional (are proportional) to those purposes for the sake of which they are entered; it is impossible to limit the rights and freedoms of the person because of a floor, races, skin color and other signs; some rights and freedoms can’t be limited under no circumstances (freedom from slavery and a servitude, the right not to be exposed to tortures, etc.) ; for restriction of the right for life and the rights for freedom there is an exhaustive list of the bases; restriction of the rights of representatives of administration, police officers, the military personnel, foreigners is admissible; in the conditions of state of emergency concerning some rights and personal freedoms additional restrictions can be introduced, concerning the separate rights and freedoms additional restrictions are inadmissible, not limited (absolute) rights and freedoms keep the action. Conclusion. The conclusion that value of the international standards of restriction of the rights and freedoms of the person and citizen for law-making and law-enforcement activity in the Russian Federation consists in the following is drawn: they have to be considered when developing the federal laws setting restrictions of the rights and personal freedoms irrespective of branch accessory of laws; they specify the content of the standards of the Constitution of the Russian Federation concerning restrictions of the rights and freedoms of the person and citizen; they have to be used by courts at justification of decisions and sentences; they are used by the Constitutional Court of the Russian Federation as additional criteria at an assessment of constitutionality of the operating restrictions of the individual and collective rights and freedoms; they play a role of limits of admissible restrictions of the rights and freedoms.

Constitutional Prohibition of Censorship in Decisions of the Constitutional Court of the Russian Federation

Introduction. For a more thorough understanding of Part 5 Article 29 of the Constitution of the Russian Federation, it is necessary to take into account the positions of the Constitutional Court of the Russian Federation on the content of the constitutional prohibition of censorship. Purpose. To carry out the systematization and generalization of the legal positions of the Constitutional Court on problems related to the implementation of the constitutional prohibition of censorship. Results. Decisions of the Constitutional Court of the Russian Federation devoted to the correlation of the prohibition of censorshipand restrictions on freedom of the media are classified into three thematic groups: 1) censorship and restrictions on freedom of the media in order to protect morality, 2) censorship and protection of honour and dignity of the individual, 3) censorship and restrictions on the freedom of information dissemination provided by legislation on countering terrorism and extremism. The Constitutional Court of the Russian Federation states that restriction on freedom of speech, freedom of mass information should not lead to the loss of the factual content of these freedoms. This restriction should use not excessive, but only necessary measures. The explanations of the Constitutional Court of the Russian Federation of the criticism of political organizations, ideological and religious associations; of statements about the possibility of judgment and reasoning, using the facts of interethnic, interfaith or other social relations in scientific and political discussions and texts; of the need to distinguish the dissemination of information discrediting honor, dignity, business reputation from the discussion of the activities of politicians and officials, are aimed at preserving freedom of the mass media. Conclusions. Proposals are made to change the words of the dispositions of Article 3.1of the Federal Law dated July 25, 2002 No. 114 Federal Law “On Countering Extremist Activity” and Part 1 Article 152 of the Civil Code (Part One) of the Russian Federation dated November 30, 1994 No. 51 Federal Law, aimed at legislative consolidation of the positions of the Constitutional Court of the Russian Federation.

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