Articles

Serafim Vladimirovich Yushkov is the founder of the history of the Russian state and law, who formulated its subject, developed the periodization and methodology of the corresponding course. At the same time, the contribution of the scientist to the development of certain important issues of the history of state and law in the assessments of his contemporaries has not been fully investigated in modern literature. The archives have preserved little-researched transcripts of meetings at which the works of S. V. Yushkov were discussed and debated. The study of this heritage, which reflects the controversial theoretical issues of that time, activates interest in the study of S. V. Yushkov’s contribution to historical and legal science, encourages the study of not only of the origins of Soviet historical science, but also of public discussions, as well as the positions expressed on them by scientists who worked side by side with him, on whose his creative search was carried out in front of his eyes. On the basis of archival sources not previously involved in scientific circulation, the article reveals the features and directions of scientific discussions related to the research of S. V. Yushkov, his contribution to the study of specific historical and legal issues. In the course of the research, retrospective analysis, concrete historical and comparative historical methods were used. It is concluded that the individual weaknesses of S. V. Yushkov’s concept revealed at the meetings in the process of criticism later turned out to be its strong point, and the scientific community recognized the outstanding merits of S. V. Yushkov in creating the foundations of the history of the national state and law.

The article describes what primary employment is, according to the labour law system of Russian Federation. It reveals that there is no definition of such concept and tries to derive it through the legal history. A work-book was the unique and remains one of the main characteristics of the primary employment, so the paper discusses, is it possible to combine legally two or more primary employers having more work-books. The judicial opinion is analysed and there are shown different approaches that result from the lack of legal definition of primary employment in the Labour Code of Russian Federation. The author’s approach based on the law branch principle of combining state and contractual regulation of labor relations and on the primacy of the labour contract proves that one could have more primary employments. The type of employment is one of the terms of labour contract. Multiple primary employment is not prohibited, so the author concludes, that such employment is legal, but the main point is not regulated because of the lack of legal definition what primary employment is. This causes ill effects for the worker, because he’s not protected as well. Therefore a primary employment is without specifying that it is off-time job.

The aim of this study was to clarify the concept of “legitimacy” used in theory of state and law, as the term often leads to confusion due to the plurality of its meanings in different contexts. Based on the analysis, it was concluded that the usage of legitimacy can be still be primarily categorized into two directions: legal legitimacy and moral legitimacy. Legal legitimacy represents the normative side of the concept and seeks to establish a hierarchy of legal orders, with the juspositivists like Kelsen and Hart advocating for grundnorm and rule of recognition and jusnaturalists like Aquinas and Sir Blackstone defending the supremacy of the natural law. Moral legitimacy discusses the sources contributing to the “right to rule” from the perspectives of consensus that derive from Aristotle’s advocacy for political stability and Rousseau’s social contract, and perspective of conflict that roots in Maciavelli’s distrust of human nature and Marx’s class struggle. By contrasting the theories of a variety of legal and political philosophers, this paper produced an overview of the evolution of legitimacy, which allows the readers to form a cohesive understanding of the concept and its usage.

The subject of this study is the normative legal acts of the subjects of the Russian Federation regulating additional guarantees of the implementation of the constitutional right of citizens to appeal in the subjects of the Russian Federation and municipalities, as well as the problems of establishing additional guarantees by regional legislators. The value of the study lies in identifying regulatory gaps at the federal level, contradictions of some regional norms to federal legislation, as well as their features. The author formulated specific proposals for the prospective improvement of legislation on citizens’ appeals, established the limits of regional laws and their place in the mechanism of realization of the right of citizens to appeal.

The reasons are indicated and the expediency of increasing the terms of consideration of appeals in a foreign language or in dot-relief font of the blind is justified, the declarative and abstract nature of a number of regulations, defects of rulemaking in the acts of the subjects of the Russian Federation are noted. Regional legislators, when proclaiming additional guarantees, should avoid arbitrary changes to the current system of norms, strive for reasonable stability of legal regulation, regulate and unify such guarantees more clearly. The necessity of attributing a number of regulatory norms to the competence of the federal legislator, including for the purpose of their unified application in all subjects of the Russian Federation, is noted.

The modern concept of regulation of state control (supervision), municipal control assumes its coordination with the legislation on administrative responsibility to ensure the orderly application of state coercion. At the same time, the basic prerequisites for adjusting the grounds for bringing to administrative responsibility are currently set precisely by the legislation on control (supervision), which is focused on preventing and suppressing violations of mandatory requirements, and not on punishing them. The measures taken to achieve this goal indicate that at the regulatory level in Russia, a model of subordination of proceedings on administrative offences in relation to control and supervisory proceedings is being formed by limiting the grounds for initiating cases of administrative offenses, expressed in non-compliance with mandatory requirements. Within the framework of this model, the legislator introduces special restrictions to the Code of Administrative Offences of the Russian Federation regarding the initiation of cases of administrative offences related to non-compliance with mandatory requirements, which are aimed at reducing the administrative burden on economic activity. However, in practice, the relevant legal regulations are applied restrictively and not to the full extent, which makes it difficult to implement the model of administrative-law measures enshrined in the legislation, by virtue of which bringing to administrative responsibility should follow the conduct of control (supervision), not ahead of them.

A distinct characteristic of the judicial activity of integration courts is that it is aimed not only at resolving legal conflicts, but also at interpreting the law in order to fill the existing gaps. Filling legal gaps may be described as a key function of an integration court. This special characteristic leads to the phenomenon of judicial activism. The study of the case law of integration courts reveals the possibility to formulate activist legal findings using different methods of interpretation. The possibility to use the teleological method of interpretation, which is the most suitable in order to eliminate legal gaps, stems directly from the provisions of the Vienna convention on the law of international treaties. The analysis of the acts of the Court of Justice of the European Union allows to establish a strong correlation between activist approaches and the use of the teleological method of interpretation. However teleological interpretation does not necessarily mean the choice of the most progressive available options. Often the activism manifests itself in the search of a balance between the interests of the integration organization and its Member States. The Court of the Eurasian Economic Union develops activist approaches by using both traditional methods of interpretation and teleological interpretation as well as having recourse to constitutional traditions of the Member States.

This is a translation of an article by the German scholar Erich Berndt “Investigating Judge or Prosecutor?” published in 1931. The then version of the German Code of Criminal Procedure provided for two forms (or two stages) of pre-trial investigation: inquiry (“Ermittlung”) and preliminary investigation (“Untersuchung”). The prosecutor was in charge of the inquiry, while the preliminary investigation was in the hands of an investigating judge (a figure similar to the Russian judicial investigator). Such a pre-trial structure was characteristic of most continental legal systems at that time, but many jurists were critical of it. In Germany, the debate on this topic peaked in the 1920s. By the early 1930s, the opinion that the prosecutor’s inquiry should be the only form of investigation had become predominant. In light of this, E. Berndt’s article is interesting because it does not just express the author’s view of the problem, but summarizes the main arguments pro et contra. Today Germany is considered to be a textbook example of a country that refused a judicial preliminary investigation in favor of a prosecutor’s inquiry. At the same time, the experience of the German reform serves as an important reference point for many legal systems. Since the domestic legislator is also in search of an optimal model of pre-trial investigation, familiarity with the German discussion about this may be extremely useful for the Russian reader.

Historically, English criminal procedure is characterised by the role of private prosecution, which allowed each person to bring charges against any other person. A relic of the Middle Ages, it has nevertheless survived successfully to the present day, although it has undergone a number of significant transformations. Its remarkable resilience, despite its inability to serve as a full-fledged instrument of Crown criminal policy, is due to the fact that the ancient procedural form is constantly emerging with new uses. In the twentieth century there was a growing demand for it by commercial and non-commercial organizations who needed an instrument for the proactive prosecution (in public or private interests). Continental critics, who had earlier protested against the introduction of the English model of private prosecution into the criminal procedure of Germany or France, raised many objections against it, but the English history has shown that their fears were baseless. At the same time, the development of public prosecutions in England has greatly reduced the space for private initiative. Most of the procedural advances, among them the increased accessibility of criminal justice, were due to the expansion of the state.

Hybrid mismatch arrangements are means of structuring cross–border transactions which result into double taxation or double non-taxation due to differences in the legal qualification of the taxpayer’s status or the legal qualification of the type of income. Hybrid mismatches arise due to imperfection of legislative techniques and are often accidental, but in some cases hybrid mismatch arrangements act as a way of committing tax offenses, leading to base erosion and profit shifting. The key provisions against the intentional use of hybrid mechanisms aimed at tax avoidance are being specified at the level of national legislations. One of the problems arising out of such norms’ adoption is concluded in providing them with compliance to tax certainty principle, which acts as a guarantee of tax legislation application in accordance with the content of public interest laid down into them, and as the means of protecting the taxpayers’ reasonable expectations at the stage of law enforcement. This article analyzes the existing anti-hybrid mismatch provisions of the certain foreign tax legislations (on the examples of the United States of America, of the United Kingdom and of the members of the European Union) for their compliance with the tax certainty principle.

The article provides a comparative analysis of the key characteristics of preemptive terms in civil law, civil, arbitration proceedings, as well as in tax law. The definition of preventive terms, as well as their legal features, are not enshrined in legislation. However, acts of the Federal Tax Service, judicial practice, civil and financial and legal doctrines recognize them as a specific type of terms for exercising both civil rights and the rights of participants in tax legal relations. The admissibility of the reception of the civilistic approach to the substantiation of the essence of the pre-trial period in the tax process is substantiated. The author critically assesses the current judicial practice to justify the violation by the tax authorities of the deadlines for the exercise of power. It proves the presence of preventive deadlines in the tax process and the need for their strict observance by law enforcers. On the basis of doctrinal teachings and analysis of law enforcement acts, the main features of preclusive deadlines in the tax process and the goals of their legislative fixation have been developed. It has been revealed that it is advisable to establish the criteria for classifying a term as a preventive term from the analysis of the norms of the Tax Code of the Russian Federation, which imperatively regulate the consequences of violating the terms. Such consequences lead to the termination of the right of the tax authority to exercise its powers and to carry out the relevant legally enshrined procedural actions. The necessity of further study of the institute of terms in the tax process is substantiated. The task of the science of tax law, and subsequently the legislator, is argued, to develop and fix the legal regime of preventive deadlines in the tax process.