Articles

Constitutional revolution is an order of constitutional change, the validity of which is not based on the current constitution, does not comply with its norms, and is not carried out in accordance with the procedures enshrined in the constitution. When the constitutional revolution is carried out, the limits of changing the previous constitution are violated and constitutional review over their observance is not carried out or to no avail. There are two theories that explain the validity of the constitution adopted as a result of the constitutional revolution: the theory of external legitimacy and the theory of internal legality. The theory of external legitimacy assumes that the basis for the validity of the constitution is external source: God, the people, a charismatic leader, etc. The validity of the constitution is not subordinate to it itself, but has an extra-constitutional source of origin. The new constitution receives from this external source its legitimacy, which makes up for the legality lost as a result of the revolution. The theory of internal legality assumes that the basis for the validity of a constitution can only be an internal source — the constitution itself. The new constitution finds its validity from itself. On the one hand, this approach is logically contradictory, since it is self-referential and explains the phenomenon by referring to itself. On the other hand, it excludes a transcendental and other objectively unverifiable explanation of the constitution. The validity of the Constitution of the Russian Federation, adopted as a result of the constitutional revolution of 1993, is based on the theory of external legitimacy, which links the validity of the constitution with its effectiveness.

The issue of international responsibility continues to be one of mist debatable topics among academia and in the decisions of international courts and tribunals. One of the major features of the WTO is a highly specific and to certain extent unique system of responsibility for violation of WTO rules elaborated by the founding member states. As a result of significant deviations from the classical approach as provided by the International Law Commission in its both Drafts Articles of international responsibility, WTO rules of state responsibility are widely treated by academia as lex specialis with its own advantages and disadvantages. Despite of existence of some rules of state responsibility in the Treaty of the Eurasian Economic Union such rules are mostly of sporadic, case-specific and badly coordinated character based on misguided borrowing of WTO approach which is ill-suited for the purpose of creation of common internal market. The necessity for the EAEU to create its own complex of norms on liability should not lead to a blind replication of either ILC or WTO approaches, as this could be at odds with the objectives of Eurasian integration. It’s suggested as one of possible alternatives to use the approach of the Court of Justice of the EU rejecting almost from the very beginning a classical international law canon of horizontal control performed by the states themselves backed by the use of the horizontal measures of enforcement towards the state violating its obligations.

The article is a continuation of the doctrinal and legal analysis of the decision of the Vilnius District Court to give retroactive effect to the law, namely to impose a criminal penalty on the basis of articles of the Lithuanian Criminal Code of 2000 as amended in 2011 in relation to the events of 1991. The publication also examines the issue of the Court’s failure to refer to the UN Charter and the UN General Assembly Resolution of 1974 on the definition of aggression for the purpose of substantiating allegations of “Soviet aggression that began in 1940 and continued” against Lithuania. The Court’s qualification of the actions of units of the armed forces and law enforcement agencies of the USSR in January 1991 in Vilnius as war crimes and crimes against humanity on the basis of the application of the provisions of the Charter of the Nuremberg Military Tribunal, the Convention on the Inapplicability of the Statute of Limitations of 1968 and the Geneva Conventions of 1949 on the Protection of Victims of War are considered from critical positions. Taking into account the refutability of the Court’s statements about the alleged crimes committed by the Soviet Union in 1940–1991. acts of “occupation”, “aggression”, “crimes against humanity”, “war crimes” and other “crimes under international humanitarian law” justify the general conclusion about the illegality of the decision of the Vilnius Court on the application of the norms of Lithuanian national criminal legislation with reference and on the basis of the international legal acts considered in the publication.

On January 18, 2021, Alexander Konstantinovich Golichenkov, Editor-in-chief of our journal, corresponding member of the Russian Academy of Education, Doctor of Law, Professor, Head of the Department of Economic and Land Law, Dean of the Faculty of Law of Lomonosov Moscow State University, turned 70.

Several months have passed since the sad date of the passing away (July 7, 2021) of the outstanding French penalist Jean Pradel — time enough to not be limited to the dry text of the formal obituary, but to try to look at his personality and work a little more broadly.

The article is devoted to the problem of qualifying fraud associated with deliberate failure to fulfill contractual obligations in the field of entrepreneurial activity (parts 5–7 of Art. 159 of the Russian Criminal Code). The author examines the concept of “the sphere of entrepreneurial activity”, drawing attention to controversial points in the interpretation of this concept in the science of criminal law and judicial practice. Despite the current clarifications of the Plenum of the Russian Supreme Court on the problem under consideration, in judicial practice there are errors in understanding the boundaries of the sphere of entrepreneurial activity, which in turn does not allow to effectively prosecute those persons who resort to fraudulent schemes when carrying out this activity. In addition, the clarifications of the Russian Supreme Court contain neither signs of entrepreneurial activity, nor criteria for its determination. Scientists and practitioners also have different assessments of the boundaries of entrepreneurial activity, as indicated by the author. Often, the understanding of the sphere of entrepreneurial activity also differs in criminal law and civil doctrine, although from the point of view of the unity of approaches, this situation leads to unfounded accusations. Often, the legal actions of persons in the field of entrepreneurial activity are also classified as crimes. Complicating judicial practice and ultra-active application of the now abolished Art. 1594 of the Criminal Code of the Russian Federation. The study allowed the author to formulate criteria for determining the scope of entrepreneurial activity for the purposes of Art. 159 of the Russian Criminal Code, to come to the conclusion about the need to change the interpretation of the sphere of entrepreneurial activity in legislation and law enforcement practice. The implementation of the proposed amendments and the use of these criteria will make it possible to effectively apply criminal liability measures to those who have committed crimes in the sphere of entrepreneurial activity

The author aims to analyze the impact of Soviet legislation on the development of Belarusian regulation in the field of nuclear waste management this publication. The subject of this research were legal acts since the construction of the first nuclear power plant on the territory of the USSR. It is noted that republican and Soviet legislation was applied until 1992, regulating the issues of radioactive waste management. An analysis of the documents establishing the rules for radioactive waste management is presented. The dynamics of improving the legal definition of “radioactive waste” in the acts of the USSR is analyzed. It is noted that the radioactive waste generated as a result of the accident at the Chernobyl nuclear power plant, in accordance with the Belarusian legislation is separated into a different group, for which a special legal regulation has been established. The system of the Belarusian legislation of the post-Soviet period, which regulates the management of nuclear waste, including international legal acts, laws and other legislative acts is research. It is concluded that the legal regulation of the field of nuclear waste management in the USSR, which included Belarus, had detailed regulatory requirements, which were influenced by historical facts, scientific and technological progress and other ongoing events, which served as the basis for the formation of the national legislation of the Republic of Belarus in the studied area.

The motivational function has essential features that distinguish it from other functions of law. It allows us to reveal such essential properties of social security law that do not manifest themselves when studying other functions. Taking as a basis the mechanism of motivational influence, including the laws of motivation, the structure of motives and their classification, the paper examines the issues of motivational influence that are important for the law of social security. The study revealed that pensions, benefits, and other types of social security have motivational significance not so much for social security legal relations as for labor legal relations. This confirms that social security and, first of all, pension rights are formed not in social security legal relations, but in labor, service or business legal relations. But these rights (the right to a pension, the right to benefits) are certain motivators for persons engaged in labor activity. In other words, motives that have a legal nature and are formed on the basis of the norms of social security legislation, encourage the subjects of labor relations to more productive work. Attention is also drawn to the shortcomings of the system of motives, it is shown that in certain cases it is more correct for the state to provide additional pension benefits, thereby assessing the previous work activity of citizens and establishing additional motives for those persons who have not yet retired.

The article examines the problem of extending the principle of party autonomy to non-contractual obligations from the historical perspective. The stages of the formation of supranational regulation of this issue in the European Union, in individual national legal systems, as well as in the Russian Federation are described. Both accepted and rejected by the legislation and the doctrine modalities of the choice of applicable law for non-contractual obligations are explored. From the position of historical development, the article analyzes the key dichotomies constituting the problem of the legitimacy of choosing the applicable law in non-contractual obligations: the justifiableness of the ex-ante choice of the applicable law, or the validity only of the ex-post choice; the admissibility of choosing as applicable the law of any foreign legal order, or the advisability of establishing criteria that limit the range of choice; the validity of the party autonomy in any legal relationship, or the reasonability of limiting or completely abandoning the party autonomy depending on the sphere of civil transactions or on the characteristics of the parties involved in legal relations. The author comes to the conclusion about the dynamic spread of the principle of party autonomy in non-contractual obligations over a relatively short historical period, along with the tendency to expand the scope of the principle of lex voluntatis in involuntary relations in general, as well as the liberalization of the modalities of such a choice of applicable law, in particular. Based on the results of the study, the author predicts the further elimination of a number of restrictive norms and an increase in the practical and doctrinal significance of the freedom to choose the applicable law in non-contractual obligations.

The article sets the challenge of assessing the regulatory function of taxation in relation to the production of polymers from hydrocarbon raw materials (plastic), as well as based on the study of the impact of plastic on the environment and human health the author seeks to develop tax and legal measures aimed at reducing the production of plastic. Herewith consideration is given to the possibility of producing polymers from alternative sources other than hydrocarbons (bioplastics). Currently, there are tax incentives in the Russian Federation aimed at processing hydrocarbons into plastic. This stimulates the production of plastic. But at the same time, the legislation does not sufficiently take into account the need to protect the natural environment and human health in relation to the widespread use of plastic and its degradation to microplastics. The author comes to the conclusion that it is necessary to introduce excise taxes on a number of plastic products, in particular, on plastic bags. The author’s conclusions are supported by references to international experience in this matter. On the other hand, the production of bioplastics should be exempt from excise taxation. The article also analyzes possible measures of tax incentives for the collection and processing of plastic. The author draws attention to the need to create material incentives for the population in relation to the collection of plastic. Such incentives can also be based on excise taxes and partial exemptions from excise taxes on the production of recycled plastic.