Articles

The review gives a brief description of the new monograph by V.D. Zorkin, its main provisions are considered. One of the main topics raised in the book is the relationship between the stability of the state and human rights. It is concluded that human rights should not be opposed to public and state security, since it is the state that ultimately guarantees the legal protection of the individual. The weakening of the State can lead to the undermining of the system of guarantees of human rights. Zorkin examines this dilemma on the example of Russia, points out the main, from his point of view, problems of the Russian legal statehood.

The institution of representation in different legal systems has a noticeable specificity. There are differences in the classification, terminology, contract structures used as the basis for the emergence of relations of representation, forms of authorization of the agent, the consequences of actions of an unauthorized agent, issues of entry of the principal and a third person into direct relations with each other, etc. Since the services of agents are in demand in cross-border trade, the international community (states, scientists, associations of entrepreneurs) attempts to overcome the uncertainties and conflicts that arise in the case of the cross-border nature of these relations in their regulation by national legal sources by unifying the substantive legal norms on the relations of the agent and the principal, as well as on the relations of these persons with a third party. In order to solve the problem of forming a common, uniform approach to the legal regulation of relations of representation in international commerce, the article formulates its universal concept, which includes the main features of the regulation of internal and external relations within its framework, inherent in various national legal systems, international conventions and non-national sources of law, the practice of cross-border commerce; identifies specific features that characterize representation in international commerce; shows the features of its unified legal regulation.

The article uses the example of a criminal case against the employees of the European Surrogacy Center for human trafficking to raise the problem of distinguishing between human trafficking and surrogacy. The article examines the practice of the ECHR and the UN Committee on the Rights of the Child. The article analyzes the provisions of the Convention on the Rights of the Child and the Optional Protocol on the sale of children, child prostitution and child pornography. The article analyzes the concept of human trafficking in the Palermo Protocol and the Criminal Code of the Russian Federation. The author comes to the conclusion that the distinction between human trafficking and surrogacy is an urgent problem not only at the national, but also at the international level. Taking into account the recommendations made in the report of the UN Special Rapporteur on trafficking in children, a list of circumstances indicating the existence of intent to traffic in persons is provided. The law enforcement officer should pay special attention to whether the payment of funds to the surrogate mother was due to the transfer of the child. This may be indicated by the refusal of the surrogate mother from parental rights and obligations in favor of the customers before the birth of the child, as well as the inclusion in the surrogacy agreement of conditions regarding the mandatory transfer of the child by the surrogate mother and the receipt of funds by the surrogate mother only after the transfer of the child. The article offers options for changing the current regulatory legal regulation in the field of surrogacy in the Russian Federation.

On January 21, 2021, the European Court of Human Rights (ECtHR) delivered the judgment on the interstate complaint “Georgia v. Russia (2)”. The purpose of this article is to examine the views of the ECHR to resolving complex issues of the Russian jurisdiction over South Ossetia, Abkhazia and the “buffer zone” in the context of an international military conflict. This judgment is unique one, since the ECtHR used two models of extraterritorial jurisdiction of the member states developed in its practice. In this regard, the article presents a brief analysis of the essence of each of the models and then the author of the article provides an overview of the ECtHR’s case law on the matter, which was once again reconsidered by the Court in this case. In the final part of the article, the author refers to the key remarks made by nine judges of the ECtHR in their dissenting opinions. The author concludes that this judgment has led to even greater confusion in the ECtHR’s case law on the extraterritorial application of the Convention, which raises serious reputational issues before the Court

One of the key grounds for the classification of legal behavior is the sphere of public relations regulated by law, which makes it possible to single out legal behavior in the sphere of dependent labor as a separate variety of it. However, the features of legal behavior in this area, due to the system-forming features of the branch of labor law, are practically not studied in the scientific literature, and therefore the article aims to fill this gap and identify the labor law specifics of legal behavior. Taking into account the special social significance of behavior in the area under consideration, due to the importance of labor as a key factor in the development of society and an individual, the article focuses on the specifics of the legal regulation of this type of behavior. It is substantiated that the specified specificity stems from a combination of state and contractual regulation of labor relations and other relations directly related to them, as well as the special role of local regulations as the main regulators of employee behavior. The problems of determining the limits of contractual regulation of relations in the sphere of labor law, as well as employer’s discretion in determining the content of local normative acts, are considered relevant for the science of labor law, and conceptual ways of their solution are proposed on the basis of the principle of guaranteeing the fundamental rights and freedoms of man and citizen, enshrined in the Constitution of the Russian Federation.

Why is the contract binding? This question might be simple, bui it hasn`t been answered clearly for last several of millennia. The distance between the types of given explanations continues to increase, it is reflected not only in the basis of the notion “contract”, but on the construction of the matter of contract law as well. This gives rise to various modifications of the “theory of flexible systems” that are gaining popularity in the field of contract law and attempting to connect and to balance the existing approaches. The other side of the modern discussions about the concept of the contract concern the disputes about the criteria for distinguishing the contract that giving rise to legal relations from the other agreements which don’t have such nature. Identifying complementarities to separate the contracts from non-binding agreements also helps to give a clearer view of the legal concept and the core of the contract. This article discusses both sets of questions supported by Russian and foreign legal tradition, evaluates the numerous variations of the “theory of flexible systems” as deducting the “what ought to be” from the “what is”, considers the interaction of the subjective, objective and formal in the contract as the combination of factors indicating the formation of the legal relation between the parties

In the science of criminal law and law enforcement practice, there are many controversial issues of the qualification of illegal acts of officials in the field of criminal justice. Special attention should be paid to the problems of interpreting the signs of the elements of crimes that provide for responsibility for falsifying evidence in a criminal case. In particular, the list of subjects specified in Part 2 of Art. 303 of the Criminal Code of the Russian Federation causes complaints from lawyers. The absence of clarifications about the mentioned element of the composition in Part 3 of Art. 303 of the Criminal Code of the Russian Federation creates confusion on the question of who should be held accountable for committing the acts contained in this norm. In search of a solution to these problems, the authors conduct a legal analysis of the theoretical and practical aspects of the content of the category “person conducting an inquiry” and the powers of the operative officer to carry out investigative actions. The article illustrates the discrepancy between the provisions of the criminal procedure legislation on participants in the prosecution proceedings and the signs of the subject of falsification of evidence in a criminal case. Based on the results of the study, the authors proposed an interpretation of the concept of “person conducting an inquiry”. The article recommends to qualify the actions of the operative officer who falsified evidence at the time of the investigative action on behalf of the investigator as abuse of official authority. These conclusions can serve as a guide for law enforcement officers until the highest court clarifies the disputed positions or makes changes to the dispositions of Part 2, 3 of Art. 303 of the Russian Criminal Code.

The article deals with the problems of criminal liability of a medical worker for careless crimes committed in the field of professional activity in the context of two divergent trends in the criminal policy pursued by the state. The main attention of the authors is focused on the issues of the statute of limitations of the criminal prosecution of a medical worker. As a result of the humanization of the criminal law, the statute of limitations for the crimes of medical workers with a fatal outcome has been significantly reduced, which does not allow the investigative and judicial authorities to perform the task of a comprehensive and objective investigation and trial of the relevant criminal cases. The complexity of criminal cases on the crimes of medical workers, the need to appoint forensic medical examinations, including additional and repeated ones, do not allow conducting the necessary investigative actions and considering the case by the court within the time limits provided for by the criminal law. The authors come to the conclusion that it is necessary to transfer the composition of the negligent infliction of death on a person by a medical worker to the category of a medium-gravity crime and, accordingly, to increase the statute of limitations for criminal prosecution for this crime. According to the authors, this will contribute to strengthening the criminal law protection of the rights of victims and create conditions for the proper investigation and trial of criminal cases in this category of crimes of medical workers.

The article analyzes the problems and features of the modern stage of development of popular sovereignty and the constitutional novelty of the unity of state and municipal public authorities. The tendencies and possibilities of achieving political agreement between the state and the people are considered. Attention is drawn to the peculiarities of the independence of local self-government in the formation of local self-government bodies, in the interaction of local self-government bodies and public authorities in the performance of public functions and services. A proposal for the development of the effectiveness of interaction between public authorities is being considered. Special attention is paid to the need to overcome the deficit of democracy by limiting state expansion and increasing the role of municipal public authorities. The urgent problem of the necessity and possibility of balancing the competing values of democracy and economic efficiency is brought up for discussion. Suggestions are made: constitution of the principle of subsidiarity; on the establishment of interrelated indicators of the effectiveness of public authorities; the development of a unified system of statistical accounting, which makes it possible to represent the unity of public authorities as the backbone of the Russian statehood; on vesting the All-Russian Association of Municipal Formations (OKMO) with the right of legislative initiative. The unity of the state and municipal public authorities presupposes the unity of goals and the development of the participation of local communities in the management of not only local, but also state affairs.