Pub Date : 2023-06-05DOI: 10.19073/2658-7602-2023-20-2-158-173
O. Sherstoboev
Administrative discretion is an important construction of modern administrative law, the formation of which in many respects can be viewed as a “struggle” to limit the discretionary powers of the subjects of state administration. It is well known that good governance would be impossible without administrative discretion. There are four stages in the development of the modern theory of administrative discretion and each stage was devoted to one aspect of this one but these stages did not coincide chronologically and developed in parallel. They had a different methodology, which was used by the founders and followers of the approaches prevailing at each stage. The first stage started in France and formed by the 18th century. This related to the concept of prudent governance exercised prudent officials who were ruled by enlightened monarch. Their decisions were not reviewed by the courts. The principle of reasonable is the modern result of this stage – an absolutely unreasonable administrative act is null and void. The second stage developed in parallel with the first one but formed by the 19th century. Administrative discretion was formed as legal concept on this stage, and it was presented as free discretion, which also could not be a subject to judicial review. The third stage, characterized by competition between administrative justice and free discretion, took place at the end of the 19th and the middle of the 20th. Judicial possibilities for reviewing discretionary acts gradually expanded, criteria for evaluating such acts were created. These criteria were incorporated into the laws and legal judicial positions after the fourth stage began. The creative side of discretion has become a very important part of this legal construction, administrative discretion at this stage is defined as a way of laws concretizing. Nowadays, the third and fourth stages are developing in parallel in Russia. It should be noted that the Russian administrative law doctrine was formed as a common doctrine Civil Law system. Russian authors always used the methodology of Civil Law system, developed it, but they paid attention to the specifics of our administrative law, our governing and historical development. Nevertheless, Russian doctrine needs more research in order to create more legally formalized administrative discretion. As a result, the legislature and courts should receive academic decisions suitable for implementation.
{"title":"Theory of Administrative Discretion: the Stages of Formation","authors":"O. Sherstoboev","doi":"10.19073/2658-7602-2023-20-2-158-173","DOIUrl":"https://doi.org/10.19073/2658-7602-2023-20-2-158-173","url":null,"abstract":"Administrative discretion is an important construction of modern administrative law, the formation of which in many respects can be viewed as a “struggle” to limit the discretionary powers of the subjects of state administration. It is well known that good governance would be impossible without administrative discretion. There are four stages in the development of the modern theory of administrative discretion and each stage was devoted to one aspect of this one but these stages did not coincide chronologically and developed in parallel. They had a different methodology, which was used by the founders and followers of the approaches prevailing at each stage. The first stage started in France and formed by the 18th century. This related to the concept of prudent governance exercised prudent officials who were ruled by enlightened monarch. Their decisions were not reviewed by the courts. The principle of reasonable is the modern result of this stage – an absolutely unreasonable administrative act is null and void. The second stage developed in parallel with the first one but formed by the 19th century. Administrative discretion was formed as legal concept on this stage, and it was presented as free discretion, which also could not be a subject to judicial review. The third stage, characterized by competition between administrative justice and free discretion, took place at the end of the 19th and the middle of the 20th. Judicial possibilities for reviewing discretionary acts gradually expanded, criteria for evaluating such acts were created. These criteria were incorporated into the laws and legal judicial positions after the fourth stage began. The creative side of discretion has become a very important part of this legal construction, administrative discretion at this stage is defined as a way of laws concretizing. Nowadays, the third and fourth stages are developing in parallel in Russia. It should be noted that the Russian administrative law doctrine was formed as a common doctrine Civil Law system. Russian authors always used the methodology of Civil Law system, developed it, but they paid attention to the specifics of our administrative law, our governing and historical development. Nevertheless, Russian doctrine needs more research in order to create more legally formalized administrative discretion. As a result, the legislature and courts should receive academic decisions suitable for implementation.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46919547","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-05DOI: 10.19073/2658-7602-2023-20-2-145-157
административном усмотрении, С. А. Старостин, S. Starostin
The article continues the discussion on the topical issue of administrative discretion for Russian administrative-legal theory and legal practice, organized by the editors of the journal “Siberian Law Review” on the pages of two previous issues of the journal with the participation of P. P. Serkov and Yu. P. Solovey. The Author focuses on the state of the modern domestic doctrine of administrative discretion, the contribution of Russian legal scholars to its development, the need and possibility (including criteria and limits) of delimiting administrative discretion from other types of discretion. It is proved that the Russian jurisprudence demonstrates, contrary to the assertions of some experts, not confusion in the face of the problematic category of discretion, but ontological and methodological certainty, although sometimes reaching extremes. At the same time, there is no single Russian doctrine of discretion, there are many such doctrines, and some scholars have the right to claim that specific doctrines are associated with their names. The Author draws attention to the fact that discretion in general and administrative discretion in particular are interdisciplinary (interscientific) categories, so they must first of all be rid of the semantic and meaningful “layers” of other sciences. The sooner a pure theory of discretion appears, the more mistakes and risks will be insured against by legal science and law enforcement practice. In order to avoid terminological confusion and preserve the subject matter of the study, it is absolutely important to distinguishfour concepts: 1) administrative discretion; 2) judicial control over administrative discretion; 3) judicial discretion; 4) judicial discretion in the exercise of judicial control over administrative discretion. These concepts have a certain connection with each other, however, they designate different (partly even by their branch affiliation) categories, phenomena, processes and institutions. As a conclusion, it is indicated that the motives of each discretionary decision of the public administration must sooner or later (better sooner than later) be made public. To make this a reality, legal science needs to develop and offer effective legal guarantees for ensuring the rights of citizens and their associations when public authorities exercise their discretionary powers.
本文由《西伯利亚法律评论》的编辑在前两期杂志的版面上组织，由P. P. Serkov和Yu参与，继续讨论行政自由裁量权对俄罗斯行政法理论和法律实践的专题问题。p . Solovey。作者着重论述了现代国内行政自由裁量权学说的现状、俄罗斯法律学者对其发展的贡献、将行政自由裁量权与其他类型的自由裁量权区分开来的必要性和可能性(包括标准和限制)。事实证明，与某些专家的断言相反，面对自由裁量权这一有问题的范畴，俄罗斯法律学表现出的不是混乱，而是本体论和方法上的确定性，尽管有时达到了极端。同时，俄罗斯的自由裁量权学说并不是单一的，有很多这样的学说，一些学者有权利声称具体的学说与其名称有关。作者提请注意，一般自由裁量权，特别是行政自由裁量权是跨学科(跨科学)的范畴，因此它们首先必须摆脱其他科学的语义和意义“层”。纯粹的自由裁量权理论出现得越早，法律科学和执法实践就会避免越多的错误和风险。为了避免术语混淆，维护研究的主题，区分四个概念是绝对重要的:1)行政自由裁量权;2)对行政自由裁量权的司法控制;3)司法自由裁量权;4)司法自由裁量权对行政自由裁量权行使司法控制。这些概念彼此之间有一定的联系，然而，它们指定了不同的(部分甚至是分支关系)类别，现象，过程和机构。作为结论，指出公共行政的每一项自由裁量决定的动机迟早(宜早不宜迟)必须公开。要实现这一目标，法律科学需要在公共权力机构行使自由裁量权时，为保障公民及其结社的权利提供有效的法律保障。
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Pub Date : 2023-04-24DOI: 10.19073/2658-7602-2023-20-1-48-54
E. G. Beglyarova
The topical issues that arise when considering civil cases on the abolition of adoption, priority areas for protecting the rights and legitimate interests of minors are investigated. Children left without parental care are by far the most vulnerable socially and morally. The article presents a comprehensive view of this issue from both legal and psychological points of view. On the legal side, it is indicated that it is possible to transform a number of legal norms enshrined in the Family Code of the Russian Federation in order to apply them most effectively. From the psychological point of view, the necessity of mandatory use of special psychological knowledge in resolving disputes in this category is determined. In addition, the special role of the prosecutor and the guardianship and guardianship authorities in the judicial process in cases related to the abolition of the adoption of a child is described. Particular attention is directed to the fact that the adoption of a decision to cancel the adoption should primarily meet the interests of minors, contain an unconditional character. The corresponding consequences of the decisions made by the court to cancel the adoption are given. The object of the study is the totality of social relations that arise during the consideration of civil cases of this category. The subject is the norms of civil, family and civil procedural law governing the above relations, the system of their implementation and application. Judicial acts are analyzed: decisions (determinations) of courts to cancel adoption, statistical and reporting data are summarized, grounds for filing claims are determined. Aspects related to the need to apply preventive measures aimed at excluding formal grounds for filing applications for the cancellation of the adoption of children are highlighted. Emphasis is placed on the participation in the consideration of disputes of this category of specialized entities, endowed with appropriate powers and having special knowledge in the field of psychology, sociology, and pedagogy. Based on the results of the study, the author formulated certain conclusions, made practical proposals for a more effective application of the norms of the current legislation, primarily in order to respect the rights and interests of children. Certain options for adjusting a number of norms of the current legislation in this area are proposed.
{"title":"Grounds, Procedure, Legal Consequences of the Abolition of Adoption","authors":"E. G. Beglyarova","doi":"10.19073/2658-7602-2023-20-1-48-54","DOIUrl":"https://doi.org/10.19073/2658-7602-2023-20-1-48-54","url":null,"abstract":"The topical issues that arise when considering civil cases on the abolition of adoption, priority areas for protecting the rights and legitimate interests of minors are investigated. Children left without parental care are by far the most vulnerable socially and morally. The article presents a comprehensive view of this issue from both legal and psychological points of view. On the legal side, it is indicated that it is possible to transform a number of legal norms enshrined in the Family Code of the Russian Federation in order to apply them most effectively. From the psychological point of view, the necessity of mandatory use of special psychological knowledge in resolving disputes in this category is determined. In addition, the special role of the prosecutor and the guardianship and guardianship authorities in the judicial process in cases related to the abolition of the adoption of a child is described. Particular attention is directed to the fact that the adoption of a decision to cancel the adoption should primarily meet the interests of minors, contain an unconditional character. The corresponding consequences of the decisions made by the court to cancel the adoption are given. The object of the study is the totality of social relations that arise during the consideration of civil cases of this category. The subject is the norms of civil, family and civil procedural law governing the above relations, the system of their implementation and application. Judicial acts are analyzed: decisions (determinations) of courts to cancel adoption, statistical and reporting data are summarized, grounds for filing claims are determined. Aspects related to the need to apply preventive measures aimed at excluding formal grounds for filing applications for the cancellation of the adoption of children are highlighted. Emphasis is placed on the participation in the consideration of disputes of this category of specialized entities, endowed with appropriate powers and having special knowledge in the field of psychology, sociology, and pedagogy. Based on the results of the study, the author formulated certain conclusions, made practical proposals for a more effective application of the norms of the current legislation, primarily in order to respect the rights and interests of children. Certain options for adjusting a number of norms of the current legislation in this area are proposed.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48375124","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-24DOI: 10.19073/2658-7602-2023-20-1-77-89
R. Sharapov
The article is devoted to the criminal law characterization of the change by the court of the category of crime to a less serious one. The criminal law norm provided for by Part 6 of Art. 15 of the Criminal Code of the Russian Federation, is subjected to dogmatic analysis based on the provisions of the theory of criminal law and judicial practice. The content of the conditions and grounds for changing the category of crime as a tool for the individualization of criminal liability is revealed. The essence of changing the category of a crime by the court is determined, which consists in the fact that the norm is designed to eliminate the contradiction between the need to apply the criminal legal consequences of a less serious crime to the convicted person due to the fact that the punishment imposed on him, reflecting a significantly lower degree of public danger of the deed, corresponds to the category of a less serious crime, and the impossibility to do this for formal reasons, due to the fact that the maximum penalty for a crime committed by the criminal law categorizes it as more serious. In the context of the impossibility of changing the category of crime in a criminal case of a crime of minor gravity in order to assess the actual circumstances of the deed, indicating a significantly lower degree of its public danger, it is recommended to discuss the application of the criminal law norm on the insignificance of the act (part 2 of article 14 of the Criminal Code of the Russian Federation). When passing a sentence, the court is obliged to consider the possibility of changing the category of crime to a less serious one in the presence of those provided for in Part 6 of Art. 15 of the Criminal Code of the Russian Federation of formal conditions, however, the court has the right to change the category of a crime on the basis of an assessment that the degree of social danger of a crime, taking into account the actual circumstances of its commission, has been significantly reduced. A change in the category of a crime cannot affect the application of criminal law norms that determine the criminality of an act (qualification), as well as regulate the rules for sentencing separately for each crime committed. The practice of a court decision to change the category of a crime when issuing a decision to terminate a criminal case or criminal prosecution on non-rehabilitating grounds does not correspond to the procedural order of application of Part 6 of Art. 15 of the Criminal Code of the Russian Federation.
{"title":"Changing the Category of Crime by the Court: Law, Theory, Practice","authors":"R. Sharapov","doi":"10.19073/2658-7602-2023-20-1-77-89","DOIUrl":"https://doi.org/10.19073/2658-7602-2023-20-1-77-89","url":null,"abstract":"The article is devoted to the criminal law characterization of the change by the court of the category of crime to a less serious one. The criminal law norm provided for by Part 6 of Art. 15 of the Criminal Code of the Russian Federation, is subjected to dogmatic analysis based on the provisions of the theory of criminal law and judicial practice. The content of the conditions and grounds for changing the category of crime as a tool for the individualization of criminal liability is revealed. The essence of changing the category of a crime by the court is determined, which consists in the fact that the norm is designed to eliminate the contradiction between the need to apply the criminal legal consequences of a less serious crime to the convicted person due to the fact that the punishment imposed on him, reflecting a significantly lower degree of public danger of the deed, corresponds to the category of a less serious crime, and the impossibility to do this for formal reasons, due to the fact that the maximum penalty for a crime committed by the criminal law categorizes it as more serious. In the context of the impossibility of changing the category of crime in a criminal case of a crime of minor gravity in order to assess the actual circumstances of the deed, indicating a significantly lower degree of its public danger, it is recommended to discuss the application of the criminal law norm on the insignificance of the act (part 2 of article 14 of the Criminal Code of the Russian Federation). When passing a sentence, the court is obliged to consider the possibility of changing the category of crime to a less serious one in the presence of those provided for in Part 6 of Art. 15 of the Criminal Code of the Russian Federation of formal conditions, however, the court has the right to change the category of a crime on the basis of an assessment that the degree of social danger of a crime, taking into account the actual circumstances of its commission, has been significantly reduced. A change in the category of a crime cannot affect the application of criminal law norms that determine the criminality of an act (qualification), as well as regulate the rules for sentencing separately for each crime committed. The practice of a court decision to change the category of a crime when issuing a decision to terminate a criminal case or criminal prosecution on non-rehabilitating grounds does not correspond to the procedural order of application of Part 6 of Art. 15 of the Criminal Code of the Russian Federation.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46700251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-24DOI: 10.19073/2658-7602-2023-20-1-64-76
A. Maksurov
The article deals with the actual problems of classifying real estate as objects of theft and, above all, fraud. The importance of solving this kind of issue from the standpoint of the history of legal regulation is determined, the socio-economic significance of real estate in modern society is shown. The conclusion is made about the change in the social essence of real estate during the historical development, which influenced the legal regulation of the protection of rights to real estate, including the norms of criminal law. The prerequisites and possibilities of the historical and legal approach in this part are considered. Characteristics are given to the main trends in the development of legal understanding about real estate as an object of criminal encroachment and, first of all, theft. The author came to the conclusion that such development is largely due to a change in the content characteristics of the right to real estate, on the one hand, and a clarification of the place of ownership in the system of other rights to real estate, on the other. In addition, the concept of fraud as a type of criminal behavior has historically changed. The paper identifies priorities in the area under study of the post-revolutionary period, which did not hasten to take full advantage of the previous historical experience and offered its own vision of the issue. Based on the results of the study, conclusions were drawn about the opportunities for improving the legislation on criminal liability for theft of real estate provides the genesis of Russian law.
{"title":"Real Estate as a Subject of Theft: a Socio-Historical Analysis","authors":"A. Maksurov","doi":"10.19073/2658-7602-2023-20-1-64-76","DOIUrl":"https://doi.org/10.19073/2658-7602-2023-20-1-64-76","url":null,"abstract":"The article deals with the actual problems of classifying real estate as objects of theft and, above all, fraud. The importance of solving this kind of issue from the standpoint of the history of legal regulation is determined, the socio-economic significance of real estate in modern society is shown. The conclusion is made about the change in the social essence of real estate during the historical development, which influenced the legal regulation of the protection of rights to real estate, including the norms of criminal law. The prerequisites and possibilities of the historical and legal approach in this part are considered. Characteristics are given to the main trends in the development of legal understanding about real estate as an object of criminal encroachment and, first of all, theft. The author came to the conclusion that such development is largely due to a change in the content characteristics of the right to real estate, on the one hand, and a clarification of the place of ownership in the system of other rights to real estate, on the other. In addition, the concept of fraud as a type of criminal behavior has historically changed. The paper identifies priorities in the area under study of the post-revolutionary period, which did not hasten to take full advantage of the previous historical experience and offered its own vision of the issue. Based on the results of the study, conclusions were drawn about the opportunities for improving the legislation on criminal liability for theft of real estate provides the genesis of Russian law.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47578929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-24DOI: 10.19073/2658-7602-2023-20-1-37-47
Jia Shaoxue
On January 1, 2020, the Foreign Investment Law of the People’s Republic of China came into force. It is the first comprehensive body of law governing the main aspects of foreign investment in the Chinese economy. The new legal regime for foreign investment has been formed taking into account the changes and real needs of the economy, both international and domestic. With its adoption, a unified legal regime for foreign investment was established, and the legal gaps that existed in the previous legislation were filled. First of all, the state unified the organizational legal forms of companies with foreign investments. Innovation was also shown in the management scheme at the pre-investment stage, at this stage a so-called negative list is created for foreign investment. It includes sectors of the economy in which foreign investment is prohibited or restricted. In other economic areas, foreign investments are allowed without restrictions. Unlike the previous period, the Law of the People’s Republic of China on Foreign Investment establishes the principle of national treatment for foreign-invested companies. By this, they are equalized in rights and obligations with legal entities using exclusively Chinese capital; the legal statuses of foreign and Chinese investors are also declared identical. These features are designed to more actively support foreign investment and protect the rights and legitimate interests of foreign investors, but taking into account the interests of Chinese investors. In addition to the Law, there is a “Regulation on the Application of the Foreign Investment Law of the People’s Republic of China”. It clarifies key concepts and basic regimes under the provisions of the Law of the People’s Republic of China on Foreign Investment, strengthens incentive measures and ways to protect the rights of investors, as well as the corresponding legal responsibility. In the future, it is necessary to more clearly define the legal issues that are not set out in the Law of the People’s Republic of China on Foreign Investment, including clarifying some legal concepts, adjusting procedures more clearly, and improving the security inspection system.
{"title":"Original scientific article Evolution and Prospects of the Foreign Investment Law of the People’s Republic of China","authors":"Jia Shaoxue","doi":"10.19073/2658-7602-2023-20-1-37-47","DOIUrl":"https://doi.org/10.19073/2658-7602-2023-20-1-37-47","url":null,"abstract":"On January 1, 2020, the Foreign Investment Law of the People’s Republic of China came into force. It is the first comprehensive body of law governing the main aspects of foreign investment in the Chinese economy. The new legal regime for foreign investment has been formed taking into account the changes and real needs of the economy, both international and domestic. With its adoption, a unified legal regime for foreign investment was established, and the legal gaps that existed in the previous legislation were filled. First of all, the state unified the organizational legal forms of companies with foreign investments. Innovation was also shown in the management scheme at the pre-investment stage, at this stage a so-called negative list is created for foreign investment. It includes sectors of the economy in which foreign investment is prohibited or restricted. In other economic areas, foreign investments are allowed without restrictions. Unlike the previous period, the Law of the People’s Republic of China on Foreign Investment establishes the principle of national treatment for foreign-invested companies. By this, they are equalized in rights and obligations with legal entities using exclusively Chinese capital; the legal statuses of foreign and Chinese investors are also declared identical. These features are designed to more actively support foreign investment and protect the rights and legitimate interests of foreign investors, but taking into account the interests of Chinese investors. In addition to the Law, there is a “Regulation on the Application of the Foreign Investment Law of the People’s Republic of China”. It clarifies key concepts and basic regimes under the provisions of the Law of the People’s Republic of China on Foreign Investment, strengthens incentive measures and ways to protect the rights of investors, as well as the corresponding legal responsibility. In the future, it is necessary to more clearly define the legal issues that are not set out in the Law of the People’s Republic of China on Foreign Investment, including clarifying some legal concepts, adjusting procedures more clearly, and improving the security inspection system.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45692007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-24DOI: 10.19073/2658-7602-2023-20-1-90-99
N. Tsukanov
The presented review gives a general assessment of the monograph by the famous Russian scholar, a specialist with significant practical experience, Doctor of Legal Sciences, Professor Petr Pavlovich Serkov. The philosophical and legal orientation of the study is stated, the key provisions and conclusions of the author are evaluated, the prospects for further scientific and practical use of the results are noted. In the first part of the review, the specifics of the subject of research determined by P. P. Serkov are considered. It is noted that the latter is many times wider than the subject of legal relations in the usual sense for a modern lawyer. The title of the monograph is due to the fact that the author of the work gives this category a special place, recognizing it as the fundamental basis of the system of legal regulation. Attention is drawn to the breadth and diversity of the illustrative material, the originality of the methods used by the Author of setting research problems and formulating scientific questions, determining methods for solving them, choosing the form and style of presenting the results. Numerous references to the text of the monograph are given to substantiate the conclusions, and brief generalizations are formulated. The second section of the work is devoted to the style of presentation of scientific material, focuses on its influence on the perception of the text and its content. It is noted that this feature makes the text more vivid, figurative, but at the same time significantly complicates the work with it, makes it difficult to accurately understand the Author’s idea. The third section reflects the features of the structure of the work. The review draws attention to the non-standard approach of Petr P. Serkov to the naming and mutual arrangement of structural elements, to the intractability of certain scientific questions formulated by Petr P. Serkov. The method of argumentation used by the Author by means of references to the unprovenness of one or another thesis is especially noted. The controversial provisions of the monograph are noted. The reviewer does not share the Author’s skeptical attitude to the methodology of modern legal science, his opinion on the need to revise the role of the abstraction method in scientific legal research, on the place of legal relations in the structure of legal matter, and on a number of other scientific issues.
{"title":"Review of the Monograph: Serkov P. P. Legal Relationship (Theory and Practice of Modern Legal Policy). Moscow: Norma, 2023. 1544 p.","authors":"N. Tsukanov","doi":"10.19073/2658-7602-2023-20-1-90-99","DOIUrl":"https://doi.org/10.19073/2658-7602-2023-20-1-90-99","url":null,"abstract":"The presented review gives a general assessment of the monograph by the famous Russian scholar, a specialist with significant practical experience, Doctor of Legal Sciences, Professor Petr Pavlovich Serkov. The philosophical and legal orientation of the study is stated, the key provisions and conclusions of the author are evaluated, the prospects for further scientific and practical use of the results are noted. In the first part of the review, the specifics of the subject of research determined by P. P. Serkov are considered. It is noted that the latter is many times wider than the subject of legal relations in the usual sense for a modern lawyer. The title of the monograph is due to the fact that the author of the work gives this category a special place, recognizing it as the fundamental basis of the system of legal regulation. Attention is drawn to the breadth and diversity of the illustrative material, the originality of the methods used by the Author of setting research problems and formulating scientific questions, determining methods for solving them, choosing the form and style of presenting the results. Numerous references to the text of the monograph are given to substantiate the conclusions, and brief generalizations are formulated. The second section of the work is devoted to the style of presentation of scientific material, focuses on its influence on the perception of the text and its content. It is noted that this feature makes the text more vivid, figurative, but at the same time significantly complicates the work with it, makes it difficult to accurately understand the Author’s idea. The third section reflects the features of the structure of the work. The review draws attention to the non-standard approach of Petr P. Serkov to the naming and mutual arrangement of structural elements, to the intractability of certain scientific questions formulated by Petr P. Serkov. The method of argumentation used by the Author by means of references to the unprovenness of one or another thesis is especially noted. The controversial provisions of the monograph are noted. The reviewer does not share the Author’s skeptical attitude to the methodology of modern legal science, his opinion on the need to revise the role of the abstraction method in scientific legal research, on the place of legal relations in the structure of legal matter, and on a number of other scientific issues.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44778436","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-24DOI: 10.19073/2658-7602-2023-20-1-55-63
D. Karkhalev
The actual problems of the protection of civil rights and responsibility in the implementation of the protective function of civil law are considered. Forms of protective relations are proposed to be divided into four types: penal, restorative, preventive and provisional. The penal form is different in that it implements liability measures. Adverse property impact on the offender is a qualifying sign of responsibility and in most cases allows one to distinguish between liability measures from other coercive measures available in the arsenal of civil law. It is characterized by the imposition on the offender of certain property deprivations, encumbrances. The restorative form is characterized by the application of protective measures. Civil law protection measures are characterized by the fact that in terms of content they are not non-equivalent property deprivation and are applied forcibly or are carried out voluntarily in the form of restoring the situation that existed before the violation, or suppressing actions that violate the right (or threaten to violate it), or recognize subjective right (or fact). The preventive form is aimed at the implementation of self-defense measures. The main feature of self-defense measures is their compensatory nature. It is expressed in the fact that self-defence measures are applied in case of violation of a subjective civil right (or in case of a threat of its violation) in order to protect the violated right. In connection with these features, self-defense is classified as a means of protecting civil law. Provisional form - measures of an operational nature, are applied extrajudicially unilaterally, regardless of the consent of the offender to their implementation (that is, they are coercive measures). Operational measures are characterized by a security feature, which is expressed in stimulating the participants in civil circulation to the proper fulfillment of obligations.
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Pub Date : 2023-04-23DOI: 10.19073/2658-7602-2023-20-1-6-24
Yury P. Solovey, P. P. Serkov
This article continues the series of scientific publications planned by the editors of the Siberian Legal Review, the Authors of which analyze the problem of administrative discretion (discretion), which is very relevant for the Russian administrative law theory and practice, in the “question-answer” format. In the domestic legal literature, one can find various definitions of administrative discretion; they are also contained in the legislation of a number of post-Soviet states. Pointing out the shortcomings of some definitions of the named concept, Yuri P. Solovey proposes to define administrative discretion by the choice made by public administration of a variant of solving a managerial issue in the form of an administrative act (regulatory or individual), corresponding, in its opinion, to the requirements established by law for administrative acts, in conditions of insufficient legal certainty of goals, grounds, conditions, content, situation, place, objects (addressees), subjects, procedure for registration, procedure and (or) terms (time) for the adoption of an administrative act. In response to the question about the appropriateness of such an approach to understanding the concept under consideration and the call to formulate his own definition of administrative discretion, Petr P. Serkov agrees with the critical assessments of the mentioned definitions of the concept of discretion. At the same time, in his opinion, the study of the phenomenon of administrative discretion does not involve the interpretation of this phrase, as a result of which the other definitions of discretion are born, but, first of all, the clarification of its content. The latter is impossible without referring to the logical construction of the mechanism of administrative legal relations, since discretionary decisions are filled to the maximum extent with the immutable logic of the emergence and development of this mechanism, available for reproduction and control. Meanwhile, the analytical potential of this construction, unfortunately, remains unclaimed in the theory of modern administrative law. Petr P. Serkov concludes that administrative discretion functions in the naturalness of legal reality, formed by legal regulation, including due to the ideological content of the norms of administrative law, and their state mental coercion as an unalternatively necessary component of legal regulation.
本文是《西伯利亚法律评论》编辑计划的系列科学出版物的延续，其作者以“问答”的形式分析了与俄罗斯行政法理论和实践非常相关的行政自由裁量权问题。在国内的法律文献中，人们可以找到行政自由裁量权的各种定义;它们也包含在一些后苏联国家的立法中。索洛维(Yuri P. Solovey)指出了对命名概念的某些定义的不足，他提出将行政自由裁量权定义为公共行政在目标、依据、条件、内容、情况、地点等法律确定性不足的情况下，根据法律对行政行为所规定的要求，选择以行政行为(监管行为或个人行为)的形式解决管理问题的一种变体。行政行为的对象(收件人)、主体、登记程序、程序及(或)作出行政行为的期限(时间)。关于这种理解正在审议的概念的方法是否适当的问题，以及要求制定他自己的行政自由裁量权定义的问题，彼得·p·谢尔科夫同意对上述自由裁量权概念定义的批判性评价。同时，在他看来，对行政自由裁量权现象的研究并不涉及对这一术语的解释，由此产生了裁量权的其他定义，而首先是对其内容的澄清。后者不可能不涉及行政法律关系机制的逻辑建构，因为自由裁量决定在最大程度上充满了这一机制产生和发展的不变逻辑，可供复制和控制。同时，不幸的是，这种建构的分析潜力在现代行政法理论中仍然没有得到重视。peter P. Serkov总结道，行政自由裁量权的功能在于法律现实的自然性，它是由法律规制形成的，包括由于行政法规范的意识形态内容，以及作为法律规制不可替代的必要组成部分的国家精神强制。
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Pub Date : 2023-04-23DOI: 10.19073/2658-7602-2023-20-1-25-36
A. Khromov
The subject of the research is social relations that arise in the course of the activities of voluntary squads during martial law, including the possibility of their involvement by law enforcement and other bodies in the performance of state tasks to ensure public order and national security. The purpose of the work is to determine the theoretical and applied problems of legal regulation of the administrativelegal status of a voluntary squad during the period of martial law. When writing the article, formal-legal, historical-and comparative-legal, logical methods were used. The relevance of the topic is associated with the lack of a clear and even mechanism for the creation and functioning of voluntary squads precisely during the period of martial law. At the legislative level, their competence (powers, forms and acts of responding to violations of laws by individuals and legal entities) in the process of ensuring public order in the controlled territory is not defined. The fact of the absence of a single terminological series in the formation of the legal basis for the activities of voluntary squads is stated. The main part of the article substantiates the conclusion that such voluntary public organizations, taking into account their basic characteristics, should be referred to in regulatory legal acts, regardless of the direction of their action, as a “voluntary people's squad”. A comparative analysis of the legal status of a voluntary squad and volunteer formations is presented. It is concluded that they do not correlate as general and private, voluntary formation, due to the specifics of the goals of education, functioning and financing, is not a kind of voluntary squads. The conclusion is substantiated that voluntary squads should be actively used by law enforcement agencies to ensure the strengthening of public order during martial law. The question is raised about the need to specify in the normative legal acts the administrative and legal status of voluntary squads precisely in the period of martial law. Proposals are made on the mechanism of legal regulation of the powers of voluntary teams and the social and legal protection of combatants when they perform state tasks under these conditions.
{"title":"Original scientific article Administrative-legal Status of a Voluntary Squad During Martial Law","authors":"A. Khromov","doi":"10.19073/2658-7602-2023-20-1-25-36","DOIUrl":"https://doi.org/10.19073/2658-7602-2023-20-1-25-36","url":null,"abstract":"The subject of the research is social relations that arise in the course of the activities of voluntary squads during martial law, including the possibility of their involvement by law enforcement and other bodies in the performance of state tasks to ensure public order and national security. The purpose of the work is to determine the theoretical and applied problems of legal regulation of the administrativelegal status of a voluntary squad during the period of martial law. When writing the article, formal-legal, historical-and comparative-legal, logical methods were used. The relevance of the topic is associated with the lack of a clear and even mechanism for the creation and functioning of voluntary squads precisely during the period of martial law. At the legislative level, their competence (powers, forms and acts of responding to violations of laws by individuals and legal entities) in the process of ensuring public order in the controlled territory is not defined. The fact of the absence of a single terminological series in the formation of the legal basis for the activities of voluntary squads is stated. The main part of the article substantiates the conclusion that such voluntary public organizations, taking into account their basic characteristics, should be referred to in regulatory legal acts, regardless of the direction of their action, as a “voluntary people's squad”. A comparative analysis of the legal status of a voluntary squad and volunteer formations is presented. It is concluded that they do not correlate as general and private, voluntary formation, due to the specifics of the goals of education, functioning and financing, is not a kind of voluntary squads. The conclusion is substantiated that voluntary squads should be actively used by law enforcement agencies to ensure the strengthening of public order during martial law. The question is raised about the need to specify in the normative legal acts the administrative and legal status of voluntary squads precisely in the period of martial law. Proposals are made on the mechanism of legal regulation of the powers of voluntary teams and the social and legal protection of combatants when they perform state tasks under these conditions.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49138410","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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