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Август 2015




Chief editor’s column


Interview of the issue


The Event. Comments of the Experts


Topic of the issue

L.V. Golovko. Two Alternative Directions of Criminal Procedure Policy In Cases On Economic And Financial Crimes: Crime Control and Doing Business
The article examines two possible directions of criminal procedure and, in a broader context, criminal policy in the economic sphere: Crime Control and Doing Business. Whereas Crime Control is mostly a feature of the western legal orders, Russia on a certain stage of its development has made an attempt to adopt the Doing Business policy. Yet the aspiration for the theoretical conceptualisation of the paradigm change failed, so the legislator has decided to act empirically by adopting several criminal and criminal procedure reforms. Still, their conceptual weakness has become evident both in technical and political issues. That is why the functional role of criminal law in economics has to be reevaluated marking the boundaries between the permissible and the prohibited. Acting exclusively in the prohibited (“dirty”) zone, criminal law and procedure can inherently be built only on the Crime Control basis being incompatible with the Doing Business policy.
Keywords: criminal policy, Crime Control, Doing Business, economic crimes
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A.I. Korobeev. Criminal Policy in Russia: Problems of Penalization and Depenalization
The article focuses on the current state of the criminal policy of Russia which is characterised by the absence of clearly defined and officially approved conceptual grounds. The reforms of criminal law are implemented by means of spontaneous, contradictory and inconsistent directives that come from the authorities and are poorly enforced in reality. Endless amendments and additions made by the legislator to the Criminal Code have deprived the Code of its consistency. The author proposes a radical solution to these problems. He suggests drafting and adopting of the new edition of the current Criminal Code on the basis of profound theoretical and applied research using comparative methods and taking into account the concepts of Russian criminal policy.
Keywords: criminal policy, penalty, penalisation, depenalisation, criminal repression
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O.V. Kostyleva. Criminalisation as a Method of Criminal Policy: Theory and Practice of Law Making
The article deals with the current issues of law-making process in the sphere of criminalisation. The author concludes that the relevant contemporary criminal policy is heading on the change of theoretical concepts and principles of criminalisation.
Keywords: criminal law, criminal policy, law-making, criminalisation, criminal law prohibition
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E.A. Melnikov. Main Problems in the Field of Criminal Policy
The article touches upon the results achieved by a working group on the monitoring of the criminal policy of the Russian Federation, which was formed in the Council of Federation of the Federal Assembly of the Russian Federation in January 2014. The general causes of a system crisis in the sphere of criminal policy are analysed. The six criminal policy areas focused upon are criminal law, criminal procedure, criminal inquiry, penal regulations, criminal prevention and organisational problems. The article addresses the examined problems and analyses suggestions for improvements regarding criminal law and criminal procedure policy offered by the experts.
Keywords: criminal policy, criminal law policy, criminal procedure policy
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G.A. Esakov. Extraterritorial Criminal Jurisdiction: Contemporary Global Trends
The article analyses current version of the Russian Criminal Code with regard to its provisions on criminal legislation in light of foreign approaches in this field. The author comes to the main conclusion about non-active, prudent approach of Russian legislation to criminal jurisdiction confining it to historically elaborated schemes. The comparison with the current continental law and common law approaches reveals that legislative schemes of the leading foreign states are of more ‘aggressive’ nature. The passive nationality principles as well as universal and protective principles are widely used for asserting criminal jurisdiction extraterritorially. The author concludes that some steps in the same manner might be perceived by Russian legislator.
Keywords: criminal jurisdiction, passive nationality principle, universal jurisdiction, protective principle, crime scene
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Discussion Board

N.E. Krylova. Is Humanisation of the Criminal Law underway? The Analysis of the Draft Laws Approved at the Plenary Session of the Supreme Court of The Russian Federation on July 31, 2015
The article is concerned with the drafts of the amendments to certain federal laws, approved at the Plenary Session of the Supreme Court of July 31, 2015, with regard to criminal, criminal procedure and criminal enforcement legislation, and other laws of the Russian Federation. The critical review deals with provisions of criminal law, in particular with the new type of exemption from criminal responsibility due to enforcement of other criminal law measures as well as partial decriminalisation of battery (the Article 116 of the Russian Criminal Code).
Keywords: criminal law, punishment, criminal law measures, humanisation of the criminal law, decriminalisation, criminal procedure, special order of the judicial proceedings
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V.A. Belov. “Forbidden” Civil Law, or What Is Civil Law Silent on?
This is the final publication in the series of articles on the “secret knowledge”, which is forbidden in the Russian civil law studies due to the dogmatic thinking that separates any alternative stream of legal thought except for the one corresponding to the conventional dogma. That’s why the Russian law students have no possibility to take a look on many civil law institutes from different perspectives, which adversely affects the national legal science. The author tries to challenge certain stereotypes established in the Russian law schools during civil law studies.
Keywords: civil law, civil law teaching, legal education
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Press Release




Theory and practice

A.E. Aloyan. The Models of Absolute Protection of Contractual Rights
The article touches upon the issues of the application of extraordinary ways of protecting contractual (obligation) rights. The analysis of the structure of a subjective obligation right reveals an element that externally affects third parties. The author gives practical examples of the external (absolute) effect of obligation rights, proves the possibility of tort protection of their violation and provides criticism of the corresponding judicial practice. Finally, the author makes critical remarks on the essence of the lawsuit against the interventionist in case of the double sale of one item.
Keywords: protection of the civil rights, claim, subjective right, obligation
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V.A. Savinykh. Court Function in the Cases of Property Valuation Disputing
The article looks at the question of the сourt function in the cases of property valuation disputing. On the grounds of the analysis of the economic category of market value the author explores multiple reliable valuations, terms of valuation contestation and analyses the peculiarities of an independent valuer’s report against other evidences. The author proves the necessity of differentiation of procedural and evidentiary reliability of a valuation report. Following the results of the survey, the author concludes that in cases involving property valuation disputing, the function of the court is not to resolve the dispute over the procedural reliability of the valuation report, but to establish the fair market value of the property. Thus, the court becomes the institution having the right to terminate the endless multiplicity of procedurally reliable valuations and to bring certainty to parties’ relations through the establishment of the only reliable valuation.
Keywords: market value, cadastral value, valuation report, function of the court, contestation of valuation reliability
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E.S. Legashova. Removal of the Restrictions related to the Disposal of the Goods Imported as a Contribution to a Company's Charter Capital: is there a Gap in the Legislation?
The article deals with the problem of practical application of the rule establishing the possibility of removal of the restrictions related to the disposal of the goods imported as a contribution to a company’s charter capital with the exemption from payment of customs duty after five years from the date of entry. The absence of both detailed regulation of the procedure for removing restrictions for declarants and regulations to be adhered to by customs officers could be regarded as a gap in the customs legislation. Still, the author asserts that there is no gap, and, consequently, there are no obstacles for direct application of subparagraph 2 of paragraph 2 of Article 211 of the Customs Code of the Customs Union.
Keywords: customs duty, import, contribution to the charter capital, exemption, gap in the law, removal of the restrictions
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A.T. Bonner. Artificial Insemination: Achievements and Mistakes of the Medicine and Broken Lives
The author keeps on exploring the legal issues regarding the use of assisted reproductive technologies in Russia. Courts’ practice is formed amid the imperfect legislation of this delicate sphere characterised by gaps and collisions which negatively affect the quality of judicial decisions. The article touches upon two types of trials: cases involving potential parents and health-care centers, and paternity suits.
Keywords: artificial insemination, assisted reproduction, implantation of embryo, surrogation, paternity, family law
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