No 6 (2024)

The article is devoted to the outstanding scientist and organizer of science, jurist, philosopher, thinker, publicist, writer, statesman, Corresponding Member of the Russian Academy of Sciences, Doctor of Law, Professor Sergey S. Alekseev (1924–2013). The biography of S.S. is traced. Alekseev, his hypostasis as a legal theorist, civilist, philosopher, organizer of science, publicist, writer, statesman, legislator, is evaluated for his contribution to science, the formation of the modern legal system in our country, reveals his role in the creation of the Constitution of the Russian Federation and the Civil Code of the Russian Federation. The article quotes fragments of previously unpublished works by S. S. Alekseev.

The exact methodology of research is crucial for a unified terminological, formal and semantic understanding of the basic phenomena of law. Dialectics retains importance in the formation of explanatory strategies of complex systems that combine contradictory legal values, principles, and goals. The main purpose of the work is to find relevant points of application of the dialectical method in fundamental jurisprudence. For this purpose, the essential features and the concept of dialectics are consistently considered; the history of its origin and development; possible use in modern legal science of approaches formed in Antiquity. The work uses systematic, normative-value, historical-legal, comparative-legal, theoretical-prognostic structural-functional and dialectical methods. The author explores the heuristic potential of dialectical laws, categories and principles to clarify the ontological status of elements of legal reality. The transformation of approaches to the categorical pair “cause – effect” is noted in the light of the achievements of analytical philosophy, including through the establishment of the property of supervenience. Particular attention is paid to the intersection of holistic ancient methodology and modern approaches in dialectics. Methodological holism corresponds to the principle of the material unity of the world, which is realized in the objective existence (not necessarily in the sense of “existere”, but in the sense of “est”) of a set of elements of legal reality. Holism and dialectics exclude the reduction of the complexity of legal problems to the level of analysis of a particular case without taking into account its relationship with other elements of the whole. Accordingly, both methodologies assume cognitive strategies with a holistic approach to the problem, rejecting its narrowly sectoral solution.

In the present article, the third in the series devoted to a perspective of disciplinary responsibility of judges features of the mechanism of disciplinary responsibility of the judges staying in resignation are considered. Two groups of the judges staying in resignation are considered: a) “vacationers” as pensioners or working in the positions permitted by the law; b) called according to the legislation for direct implementation of justice for a certain term. The author pays attention that disciplinary this type of responsibility of judges-retirees is conditional, in the law it is not called in any way, for violation set the bans and restrictions for the judges staying in resignation the only type of responsibility – the resignation termination is established that does not give the chance for perfect offense to apply adequate punishment. The author formulates the conclusions, proposals are made.

The article deals with the problem of defining the concept, legal nature and procedural features of the administrative procedural form. The author considers the concept of administrative proceedings in a broad sense, including both the activities of courts of general jurisdiction and arbitration courts. The fundamental difference between private law and public law relations is shown, the idea of the need to transform administrative proceedings is substantiated, taking into account the specifics of the public law to be protected and the peculiarities of regulating public law relations. The problem of independence and impartiality of the court considering the public law conflict is posed, the way of its solution is proposed. Substantiated proposals for improving the judicial protection of public rights, which are based on public, state interests.

Socio-political and international legal trends, the growing scale of military conflicts in various regions of the planet determine the attention of scientists and practitioners to the social nature and essence of military law and its institutions. The recent appearance of the monograph “Military Law” in three volumes (the third volume in two books) serves as proof of this attention in our country. This monograph reflects the key theoretical and legal constructs that form the foundation, the “core” of Military Law as a branch of law. It examines the genesis of Military Law, reveals the systemic prerequisites of Military Law, describes Russia’s military activity as an object of Military Law, substantiates the military organization of the state as a subject of Military Law, identifies the social value of Military Law, proves the place of Military Law in the system of legal norms as a branch of law, verifies system of Military Law, the main provisions of the Military Law of foreign countries are systematized, international legal aspects and the current state of Military Law are revealed. In the article, the authors reflect on the continuation of the ideas of the monograph “Military Law”, to search and substantiate the philosophical origins and grounds of its origin. The authors would like to draw your attention to the fact that today Military Law and the prerequisites for its formation should be studied within the framework of scientific approaches characteristic of the modern stage of existence of post-non-classical science (systemic, historical-legal, axiological, epistemological, functional). It is pointed out that the scientific works of leading philosophers from the stage of classical science to the present day contain the methodological and theoretical foundations for constructing the concept of Military Law as a branch of law and a social phenomenon. The result of the discussion is the substantiation of the philosophical foundations of Military Law, as well as the conceptualization of philosophical ideas as sources of the theoretical structure of Military Law. Provisions are put forward to continue philosophical research in the field of Military Law to substantiate its methodological platform and theoretical basis.

In 2022, a very significant event took place, including for jurisprudence: the Russian Federation included four new territories and four new constituent entities of the Russian Federation were formed. Currently, many of the most important tasks related to the formation of public authorities in these entities are being solved. In this sense, the adaptation of official relations existing in these territories to the Russian legal system is significant. Such tasks cannot be solved simultaneously, therefore, the current legislation provides for different transitional periods for “debugging” the legal regulation of public service institutions on the territory of new constituent entities of the Russian Federation. This article deals with the realization in the new territories of the right to enter the civil service, which is an important component of the constitutional right to participate in the management of the state. In particular, the author analyzes the transitional provisions that operate on the territory of these subjects, notes contradictions and inconsistencies with the current federal legislation. The article predicts problems that may occur after the transition period and makes proposals for their elimination.

As a result of the inclusion in the Civil Code of the Russian Federation of a simple partnership as a contractual form of an entrepreneurial association of an economic type in domestic jurisprudence, the need arose to comply with its legal status, including legal personality, as well as the legal regime during its general development and drawing up the foundations of entrepreneurial and other economic activities. Purpose of the study: to establish the essential characteristics and features of the legal regime of general damage to a simple partnership. Objectives of the study: identifying certain types of common property; analysis of legislation and approaches to judicial practice on the issue under consideration; determining the role of general damage in the activities of a simple partnership. Research methods. The work used theoretical (analysis and synthesis, including methods of system analysis) and empirical methods of scientific knowledge (observation, description). Scientific methods are also used (formal-logical, historical-legal, legal comparative studies, hermen’s and synergetic). Results: national legislation establishes the legal regulation of the general damage regime of a simple partnership, the subsidiary application of the general provisions of constitutional legislation, which should not contradict the conditions and capital intended for the study of this property.

In the article of legal means and instruments for the protection of creative work are considered among the traditional spiritual and moral values. Based on the analysis of the latest legislation, it is substantiated that traditional spiritual and moral values, preserved and strengthened by the state, cannot contradict the spiritual values of religions traditional for Russia, should be reflected in legal norms and, above all, constitutional ones in order to give them a sign of universality, and also be specified in industry principles and norms. In order to be protected and strengthened by the state, these moral guidelines, formed in the course of religious development, which have found their unique, original manifestation in the spiritual, historical and cultural development of the multinational people of Russia, must be normatively enshrined in domestic legislation, including the Constitution of the Russian Federation. Based on these criteria, among the values of creative labor, respect for the worker and social partnership are highlighted and studied.

The article attempts to consider the entire set of currently existing measures of criminal procedural coercion from the point of view of systems theory, that is, through comparison with the known signs of systematicity: unity, integrity, interconnection of elements, structure and orderliness, hierarchical structure, multiplicity of descriptions, dynamic development. It is noted that the totality of coercive measures provided for criminal justice meets only two of the specified characteristics. At the same time, circumstances are analyzed that prevent the identification of other signs of systematicity in a given set. As a result, the conclusion is formulated that the system of measures of criminal procedural coercion is another, in no way substantiated and unsubstantiated doctrinal myth, which owes its emergence to incorrect legal and technical approaches that imply a desire to group the provisions of the law, regardless of the essence, content and legal the nature of the relevant techniques and procedures.

The article analyzes trends related to the improvement of the place and role of the upper house of parliament in the context of constitutional and legal reforms carried out in Uzbekistan and the Central Asian States. The experience of reforming parliaments in Central Asia and the Asian region is being studied. The issues of the upcoming tasks to improve the legislation on the Senate of the Oliy Majlis, taking into account the norms and provisions of the updated of the Constitution of the Republic of Uzbekistan, are being considered. Specific proposals and recommendations have been put forward on existing problems in this area and ways to solve them.

In the article the author aims to consider the approach of US legislatures and courts in resolving the contradictions between the First Amendment and anti-discrimination laws. The First Amendment to the Constitution of the United States guarantees religious organizations, exercising their constitutional right to profess religion, to freely choose their ministers without any obstacles or supervision from the State. At the same time, American legislation establishes that employers, as a general rule, cannot be guided by such criteria as religion when making a decision on hiring. It is noted that two main ways of solving the contradiction have been developed. First, the formulation of a legislative exception in subsection 702 of the Civil Rights Act of 1964. Secondly, the judicial application of the doctrine of “ministerial exception” which is sometimes called a “church exception” suggesting the impossibility of applying the anti-discrimination legislation of the United States in the field of labor relations of religious institutions with their “ministers”. The article defines the genesis of the doctrine of “exceptions for ministers” and reviews the key decisions of the appellate courts and the Supreme Court of the United States, starting with the decision of the Supreme Court of the United States in 1871 in the case “Watson v. Jones” to two key cases considered in the XXI century, “Evangelical Lutheran Church and School Hosanna-Tabor v. Equal Rights Commission employment Opportunities” (2012) and “Morrissey-Burrough v. Our Lady of Guadalupe School” (2020). Four criteria used by the Supreme Court to apply the “exception for ministers” are considered. As a result the author comes to the conclusion that in accordance with the approach adopted by the US courts, as soon as it is proved that the claim falls under the “exception for ministers”, further judicial review is excluded and the religious organization wins. The current judicial practice of the US Supreme Court on the “exception for ministers” seems to consider religious autonomy as the main value to be protected.

The article discusses the issues of public administration (primarily economics) in Russia of the late XIX – early XX century. In the age of digital technologies, it is necessary to recall that S. Y. Witte, being, like I. A. Vyshnegradsky, a mathematician by education, in his memoirs called both himself and his predecessor as Minister of Finance, “digitalists”. This allows us to consider some of the features of the modernization of public administration of the past in a new light. The concept of the “Witte System” has entered scientific circulation. A set of measures to reform the economy can be studied from different sides and from different sciences, analyzing and generalizing both ideas for modernizing public administration “for the common benefit” and the goals and means of the activities of specific government and public figures. “Digitalization”, thanks to logical and mathematical methods and automation, gives the theory and practice of public administration an additional impetus, while simultaneously revealing its limits.

The article is devoted to the conceptual issues of the development of the tax system of Russia in the conditions of “greening of the economy”. The analysis of the impact of the development of climate policy on the change in the structure of taxation in the context of environmental safety is presented. The emphasis is placed on the need to use the collective concept of environmental taxes to realize the possibility of a comprehensive analysis of the transformation of the legal regulation of the tax system during the “green” economy. The article discusses possible options for the future design of taxation against the background of intensification of emission reduction and energy efficiency improvement.

The Round Table addresses issues of modern legal education and legal science in Russia and China. It is noted that in these countries, legal education and legal science are going through a transitional period. In both Russia and China, the introduction of market mechanisms and extensive contact with the West have led to the transformation of jurisprudence. Scientists and teachers faced the problem of adapting the national legal tradition to new historical conditions. The comparative analysis of Russia and China is also interesting because both states have a socialist past, and the legal system, legal science and legal education of China have experienced a noticeable influence of the USSR.

The review draws attention to the originality of S. V. Kabyshev’s work “The Constitution of Russia: traditions of progress (to the 30^th anniversary)”. In particular, the reviewed monograph presents six independent topics in the general context of the interpretation of value categories and directions both in the science of Constitutional Law and in the general process of constitutional regulation of public relations: 1) continuity and dialogue in the constitutional and legal development of Russia; 2) the place and role of Russian constitutional law in the system of national jurisprudence; 3) constitutional ideology as a guarantee of sovereign development; 4) human rights in the constitutional system: a dialogue on prospects; 5) the constitutional formula of Russian legal education; 6) the Constitution of Russia, scientifically-technological progress and spatial and territorial development.