Articles

The article analyses views on intradepartmental normative document in terms of correlation of the concepts «normative legal act» and «local normative act» in legislation, function of Ministry of justice of Russia, regulatory document control and juridical literature. Referring to the theoretical division of departmental normative acts into generally binding and intradepartmental ones, author assumes the synonymy of the concepts «normative legal act affecting the rights, freedom and duties of a person and citizen», «normative legal act mandatory for federal state authorities, state authorities constituent entities of the Russian Federation, local governments, as well as legal entities and individuals» and «generally binding normative act». It is substantiated that intradepartmental normative documents cannot be considered normative legal acts affecting the rights, freedom and duties of a person and a citizen, since they apply to a certain circle of persons and their effect does not go beyond the limits of the relevant department. Considering specific departmental normative acts registered by the Ministry of Justice of Russia or challenged in the Supreme Court of the Russian Federation, the author shows the impossibility of classifying them as generally binding normative acts, including citing as an example similar documents issued by entities not authorized to exercise legal regulation. It is proposed to abandon the practice of state registration of intradepartmental regulatory documents, the advantage of this abandonment from a practical point of view is noted.

The issues of legal protection of the environment, improving the efficiency of public administration in the environmental sphere have been elevated to the rank of national goals, the way to achieve which, according to official estimates, is seen, among other things, in the introduction of digital technologies. The article raises the problem of the lack of clarity and unambiguity of the definition of the legal concept of “digital society” and all terms derived from it. The purpose of the study was to study the existing regulatory definitions and doctrinal approaches to the concept of digitalization in the aspect of state environmental management, which is considered as the process of introducing digital technologies into the activities of state bodies that improve the quality of their functions. At the same time, under the digital transformation of such management in the article, it is proposed to understand the transition to such a state of environmental management, which is characterized by the onset of specific socially significant results from the use of digital technologies. The readiness of public administration in the field of environmental protection for digital transformation — regulatory, software, technical support, training, etc., should be called digital maturity, which, in turn, is a prerequisite for digital transformation, transition to a digital society.

The legal institution of the use of land plots without their provision and the establishment of an easement, a public easement, is not only new, but also contains a number of unusual legal structures. In this regard, it is important to find out its general direction, correlate it with similar legal categories, find out the legal significance of a number of conditions, and also determine ways to improve existing norms. It is concluded that the emergence of this institution is based on the need to promptly resolve the procedure for the limited use of the spatial properties of the land (land) and expand economic opportunities. Since public ownership of the land remains, and the person using the land plot does not have the rights to the land indicated by the Land Code of the Russian Federation, it is advisable to provide in a separate rule that the permit is issued for use on conditions that are the least burdensome for the current and future use of land (land plots). The current legal regime for permitting the use of land (land) on the grounds under consideration does not provide for the conclusion of an agreement on the use, however, the legislative regulation does not contain an imperative norm that would prohibit such an agreement. The land (land plot) is used in this case as an economic resource, which to a certain extent reduces its value for the public owner. Therefore, conceptually, one should proceed from the fact that in cases where the legislator does not directly establish a ban, the issuance of a permit may also provide for a fee for use.

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.