Articles

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.

The article examines how in the process of centralization was changed the form of the state unity of Russia. The topic is interesting not only a theoretical understanding of the problem, but also a historical and legal analysis of the existing state unity of Russia. The article traces that the change in the form of the state unity of Russia is associated with the liberation from vassal dependence on the successor of the Golden Horde, the Great Horde. The article substantiates that the creation of a unified Russian state and its centralization differ somewhat in time, although they coincide at the last stages. These changes began to manifest themselves, first of all, in the change in the legal status of the feudal elite, the service class, which was reflected in the status of their land holdings. These changes manifest themselves after the feudal war of the middle of the XV century and are expressed in the strengthening of the central government (the order of succession to the Grand ducal throne changes and the power of the Grand Prince increases), specific land ownership is practically nullified and residential land ownership becomes the main one, the free transfer of boyars and free servants from the Grand Duke to other landowners is prohibited. This contributes to the creation of a consolidated class (social group) of serving people in the fatherland.

Reviewed the monograph by E. A. Frolova “Rational Foundations of Law: Classics and Modernity”. The reviewers come to the conclusion about the relevance of this book and its significance for the development of theoretical-legal and philosophical-legal thought in Russia and note that E. A. Frolova objectively investigated the essence of law from a theoretical standpoint. This approach gave her the opportunity to identify urgent problems of modern legal science and propose ways to resolve them. The review notes the deep study of legal sources, as well as scientific literature of various centuries, carried out in the course of the study.