scholarly journals Reasons Why Inflicting Harm is not a Sufficient Indicator of Abuse of the Right

Lex Russica ◽  
2021 ◽  
pp. 22-31
Author(s):  
S. V. Musarskiy
Keyword(s):  
Russian Federation ◽  
Civil Code ◽  
Point Of View ◽  
Constitutional Court ◽  
Negative Consequences ◽  
Legal Norms ◽  
Key Factor ◽  
The Russian Federation ◽  
The Right ◽  
Subjective Rights

One of the most difficult issues of civil law is the determination of the criteria for abuse of rights prohibited by Article 10 of the Civil Code of the Russian Federation. Among numerous points of view on this issue, the following has become very widespread in judicial practice: an abuse of the right can be established based on the negative consequences that have occurred for third parties as a result of the exercise of the right. Since these consequences are evident, then the exercise of the right constituted an abuse. Substantial support for this approach is provided by the Constitutional Court of the Russian Federation opining that the rule of Art. 10 of the Civil Code of the Russian Federation is aimed at implementing the principle enshrined in Part 3 of Art. 17 of the Constitution of the Russian Federation. Having studied the origins of this point of view and its legal foundations, the author noted a number of inherent shortcomings. In particular, this point of view does not distinguish between inflicting unacceptable harm and admissible actions causing harm to another person; it does not take into account the competition of legal norms; it does not take into account that causing harm prohibited by law is an offense and, therefore, it is not an act of exercising subjective rights. These and other shortcomings of the concept of causing harm, noted by the author of the paper, lead to the conclusion that the feature of “causing harm” in itself is insufficient to qualify the act as an act of abuse of the right and the application of Art. 10 of the Civil Code of the Russian Federation. In addition to the indicated feature, which is a prerequisite for the application of Art. 10 of the Civil Code of the Russian Federation, the court must establish another (key) factor, namely: the fact that, in its opinion, allows to distinguish between legal abuse and other lawful and unlawful phenomena.

Equal to the Constitution: the Sources of Law of Highest Legal Force in the Russian Federation

2016 ◽  
Vol 4 (8) ◽  
pp. 0-0
Author(s):  
Михаил Пресняков ◽  
Mikhail Pryesnyakov
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Constitutional Law ◽  
The Other ◽  
Constitutional Court ◽  
Legal Norms ◽  
Other Hand ◽  
The Russian Federation ◽  
Juridical Acts ◽  
The Right

In article the question of validity of the Constitution of the Russian Federation and some other sources of the right which can also possess the highest validity is considered. In particular the author comes to a conclusion that legal positions of the Constitutional Court of the Russian Federation possess the highest validity and in total with the constitutional provisions represent the actual Constitution. On the other hand, both laws on amendments to the Constitution, and the universally recognized norms of international law on the validity stand below constitutional precepts of law. Acts of the Constitutional Assembly of the Russian Federation may in future be qualified as having the highest judicial effect. Such acts may abolish or change any provision of the present Constitution. At the same time the universally recognized norms of international law and the laws of the Russian Federation regulating amendments to the Constitution of the Russian Federation as independent juridical acts and sources of constitutional law are inferior as compared with the constitutional legal norms.

THE RIGHT OF LEGISLATIVE INITIATIVE IN THE SYSTEM OF POWERS OF THE RUSSIAN FEDERATION CONSTITUTIONAL COURT

2021 ◽  
pp. 46-52
Author(s):  
Dmitrii V. Zmievskii
Keyword(s):  
Russian Federation ◽  
Point Of View ◽  
Constitutional Court ◽  
Special Role ◽  
Supreme Courts ◽  
Federal Constitutional ◽  
The Russian Federation ◽  
Legislative Initiative ◽  
Control Body ◽  
The Right

The article considers the right of legislative initiative of the Constitutional Court of the Russian Federation enshrined in the Constitution of the Russian Federation in the light of amendments made to the Fundamental Law of our state in 2020, as well as subsequent updating of special federal constitutional legislation. It is noted that the problem of practice deficiency in implementing the mentioned power by the Constitutional Court of the Russian Federation is not new for the Russian legal science; in general, it is naturally determined and is due to a number of objective factors. However, the process of updating and developing the constitutional provisions on the supreme judicial control body of Russia and, in particular, creating the system of preliminary judicial constitutional control, bring the problem under consideration to a qualitatively new level. The approach itself in terms of granting the mentioned power to supreme courts in the Russian Federation is characterized as atypical for the countries near and far abroad. At the same time, the current lack of practice in exercising the power in question by the Constitutional Court is due to the special role of the latter in the system of supreme state authorities, in particular, the judiciary. The point of view is expressed that the problem cannot be unambiguously solved at the present stage of the statehood development. The author does not share the increasingly expressed point of view today that the right of legislative initiative should be excluded from the powers of the Constitutional Court of the Russian Federation, since this will lead to a violation of the equality of the constitutional and legal statuses of the two independent supreme judicial authorities. In addition, the shortcomings in the wording of certain constitutional provisions have been identified and possible ways to eliminate them have been proposed.

scholarly journals The Right to Education In Terms of the Functions of Labour Law

2017 ◽  
pp. 85-92
Keyword(s):  
Russian Federation ◽  
Point Of View ◽  
Constitutional Court ◽  
Labour Law ◽  
Human Right ◽  
Right To Education ◽  
Constitutional Principle ◽  
The Russian Federation ◽  
The Right ◽  
First Time

The right to education is a fundamental human right guaranteed by the Constitution of the Russian Federation and international human rights instruments. At the same time, there are some difficulties for those who combine work and studying. The Labour Code of the Russian Federation stipulates guarantees and compensations exclusively for workers obtaining degrees of respective levels for the first time. Getting a degree of the same level of education by workers can become impossible. The author considers the issues of realization of the right to education by a worker who has already had a respective degree. On the basis of international law, the provisions of the Constitution of the Russian Federation, and also decisions of the Constitutional Court of the Russian Federation the author concludes that there should be a differentiated approach to determining the amount of guarantees provided to employees combining work with studying. From the author’s point of view, only workers obtaining respective degrees for the first time should enjoy material guarantees. At the same time, non-material legal guarantees should be applied to all workers combining their works with studying. Otherwise those workers who obtain degrees of respective levels not for the first time don’t enjoy a constitutional principle of equality and can suffer from impossibility of realization of the right to education.

scholarly journals On the Concept of the Constitutional and Legal Category “Citizen’s Appeal”

2021 ◽  
pp. 248-255
Author(s):  
Igor Yu. Ostapovich ◽  
◽  
Alexander V. Savoskin ◽  
◽  
Keyword(s):  
Russian Federation ◽  
Additional Term ◽  
Constitutional Court ◽  
Federal Law ◽  
Legal Entity ◽  
The Russian Federation ◽  
Definition Of ◽  
The Right ◽  
Or Organization ◽  
Subjective Rights

The right of a citizen of the Russian Federation to appeal to state bodies and bodies of local self-government is one of the oldest human rights. It is an integral part of the mechanism for the implementation of a large number of subjective rights and freedoms. However, the concept of the legal category “citizen’s appeal” contained in the Federal Law “On the Procedure for Considering Appeals of Citizens of the Russian Federation” is not informative and creates many questions and problems. It is difficult to establish the content of the category “citizen’s appeal” because the word “appeal” is a verbal noun and has several meanings in Russian. In order to establish the true meaning of the term “citizen’s appeal”, the authors conducted a lexical analysis of the word “appeal” and examined its use in legal acts. Based on the analysis, it has been established that the term “appeal” in normative acts is used in different meanings and, to clarify it, an additional term is required that would explain the context of the use of the word “appeal”. Then, using specific legal methods of cognition (formal-legal, formal-logical, systemic, technical-legal methods), the authors analyzed the legislative definition of the term “citizen’s appeal”, namely, its understanding in the decisions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, and in special legal literature. The authors have formulated the definition of the category “citizen’s appeal”: it is the will of a person (group of people or organization) guaranteed by the Constitution of the Russian Federation, corresponding in its form to the normatively established rules and expressed in the form of a written, oral or implied-in-fact requirement to a state body or local government. The appeal is aimed at realizing the subjective rights, freedoms and legitimate interests of the applicant and third parties. The definition includes the necessary and sufficient set of essential characteristics that reveal the analyzed phenomenon, namely: constitutional conditionality, the proper applicant (subject of the appeal), the proper addressee, the form of expressed will, the purpose of the appeal. The absence of any of the above elements eliminates the citizen’s appeal as such or transforms it into a different kind of expression of will. Based on this theoretical construct, a new legislative definition of the legal category “citizen’s appeal” is formulated. The terms “applicant” (citizen, group of citizens, or organization sending the appeal) and “organization that performs publicly significant functions” (a legal entity established by a public law entity with the aim of performing non-commercial functions or a legal entity that exercises certain state or municipal powers) are also defined.

scholarly journals Sovereignty in a Federal State: Theoretical and Legal Bases and Practice of Implementation in Russia

2020 ◽  
pp. 13-26
Author(s):  
Andrei V. Bezrukov ◽  
Andrey A. Kondrashev
Keyword(s):  
Russian Federation ◽  
Armed Forces ◽  
Fundamental Principle ◽  
The State ◽  
State Sovereignty ◽  
Federal State ◽  
Constitutional Court ◽  
Potential Threat ◽  
The Russian Federation ◽  
The Right

The article raises the issue of state sovereignty in a federal state and reveals its legal nature. The authors draw attention to the diversity of approaches to the concept and essence of sovereignty, reveal its correlation with related categories, describe the concepts of unity and divisibility of state sovereignty. The paper proves that sovereignty is not a quantitative, but a qualitative characteristic of a state, which is either present or not. The authors substantiate the exclusive possession of state sovereignty by the Russian Federation. Based on the analysis of the doctrinal, regulatory sources and the practice of the Constitutional Court of the Russian Federation, the authors show that the Russian constitutional model explicitly outlines the principle of solid and indivisible state sovereignty spreading throughout the whole territory of the Russian Federation. Recognition of the principle of state sovereignty of Russia presupposes a clear definition of the scope of rights that the Federation should possess in order for its sovereignty to be ensured. The article examines the main features of the state sovereignty of Russia enshrined in the Constitution of the Russian Federation, among which are the supremacy of federal law over the law of the subjects of the Federation, the inviolability of borders and territorial integrity, the unity of the economic space, fiscal, banking and monetary systems, common army (Armed Forces), the right of the state to protect its sovereignty and rights of citizens. Despite the unequivocal decision on the integrity of state sovereignty of the Russian Federation expressed the Constitution of the Russian Federation and by the Constitutional Court of the Russian Federation, this fundamental principle is not completely ensured since the idea of the sovereignty of the republics as components of Russia continues to retain its potential threat to Russian federalism, taking into account the provisions of Art. 73 of the Constitution of the Russian Federation that provide for the full state power of the constituent entities of the Russian Federation

THE RATIO OF THE CATEGORIES «LOSSES», «DAMAGE» AND «HARM» IN THE ARTICLES OF THE CIVIL CODE OF THE RUSSIAN FEDERATION

2021 ◽  
Author(s):  
Хусейн Вахаевич Идрисов
Keyword(s):  
Russian Federation ◽  
Civil Code ◽  
Negative Consequences ◽  
Legal Definition ◽  
Article Analysis ◽  
The Russian Federation

Статья посвящена правовой характеристике таких гражданско-правовых категорий, как «убытки», «ущерб» и «вред. Указывается, что гражданское законодательство приводит легальную дефиницию только применительно к категории «убытки», хотя наряду с указанным термином, нормы Гражданского кодекса РФ оперируют также такими понятиями как «вред» и «ущерб». Проведен постатейный анализ норм Гражданского кодекса РФ на предмет содержания в них и упоминания, исследуемых правовых категорий. В заключении статьи сделан вывод о том, что понятия «вред», «ущерб» и «убытки» - это категории различного свойства в отношении их применения к формулировке негативных последствий, возникших в имущественной (неимущественной) сфере лица, хотя они и имеют общеродовые признаки. The article is devoted to the legal characteristics of such civil categories as losses", "damage" and "harm. It is indicated that civil legislation provides a legal definition only in relation to the category of "losses", although along with this term, the norms of the Civil Code of the Russian Federation also operate with such concepts as "harm" and "damage". The article-by-article analysis of the norms of the Civil Code of the Russian Federation for the content and mention of the legal categories studied in them is carried out. In conclusion, the article concludes that the concepts of "harm", "damage" and "losses" are categories of different properties in relation to their application to the formulation of negative consequences that have arisen in the property (non-property) sphere of a person, although they have generic characteristics.

Some legal issues of medical privacy in psychiatric practice

2021 ◽  
pp. 111
Author(s):  
Svetlana V. Polubinskaya
Keyword(s):  
Mental Health ◽  
Russian Federation ◽  
Medical Information ◽  
Digital Health ◽  
Psychiatric Evaluation ◽  
Constitutional Court ◽  
Negative Consequences ◽  
The Russian Federation ◽  
Forensic Psychiatric ◽  
Medical Privacy

The article discusses a number of issues associated with medical privacy in psychiatry, including forensic psychiatric evaluation. Current Law of the Russian Federation “On Psychiatric Care and Guarantees of Citizens’ Rights in Its Provision” requires taking into account the mental state of a person with a mental disorder when informing him about his mental health condition. However this rule misses new realities of digital health and is not included into the legislation on protection of citizens’ health. It is hardly possible to realize in practice and it needs an additional and established by law mechanism of access to medical records, considering specific properties of psychiatric patients. Problems also arise with a mentally disordered person's access to his forensic psychiatric medical record. On the one hand, the report of forensic psychiatric evaluation is an evidence in the court case, and the procedure for its disclosure is regulated by procedural legislation and legislation on state forensic expert activities. On the other hand, the Constitutional Court of the Russian Federation considers such a report as a medical document, for which the rules of legislation on protection of citizens’ health apply. In this paper the authors propose the solution to this dilemma that requires corrections in the position of the Constitutional Court of the Russian Federation. The authors analyze the history of legislation on medical privacy and draw attention to obvious long-term trend that shows in continuing expansion of the range of persons who have right to access such information without consent of the citizen concerned. The authors conclude that medical privacy is gradually losing the nature of the right guaranteed by federal law. Especially worrying are the attempts of a number of state bodies and officials to obtain information about mental health of unspecified groups of people. Too many third parties already have access to medical information for various reasons, and the number is growing with introduction of digital health information systems. The authors come to conclusion that such a development can lead to serious negative consequences for the legally guaranteed rights of citizens and stress the importance of special attention to protection of medical information, including measures against unlawful access and possible leaks.

WITH REGARD TO THE QUESTION OF COMPLIANCE WITH THE PRINCIPLE OF LEGALITY IN ESTABLISHING ADMINISTRATIVE LIABILITY FOR FAILURE TO IMPLEMENT DECISIONS OF THE RUSSIAN FEDERATION’S COUNTER-TERRORISM BODIES

2021 ◽  
pp. 82-92
Author(s):  
Artem V. Rudenko ◽  
Keyword(s):  
Russian Federation ◽  
Point Of View ◽  
System Construction ◽  
Federal Law ◽  
Basic Principles ◽  
Legal Norms ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Federal Laws ◽  
Principle Of Legality

The relevance of the article stems from the adoption by the constituent entities of the Russian Federation of rules on administrative liability for failure to implement decisions of the anti-terrorist bodies of the constituent entities of the Russian Federation in situations of conflict with federal law regulations, caused by adoption of the Federal Law No. 82-FZ of 18 April 2018. This contradiction calls into question the conformity of the adopted norms of the laws on administrative liability of the constituent entities of the Russian Federation with the principle of legality, as one of the basic principles of the State’s legal system construction. The purpose of the article is to develop a position on legal conduct in a situation of con-flict with the legal norms of federal legislation in establishing administrative liability by the constituent entities of the Russian Federation. The possibility of establishing administrative liability at the level of the constituent entities of the Russian Federation is enshrined in the Constitution of the Russian Federation and the Code of Administrative Offences of the Russian Federation After the adoption of the Federal Law No 82-FZ of 18 April 2018 «On Amendments to the articles 5 and 5.1 of the Federal Law «On Counteracting Terrorism» legal conflict in the regulation of these powers has arisen. These changes affected not only the regulation of the above-mentioned powers of the constituent entities of the Russian Federation, but also the system of sources of administrative liability, since Code of Administrative Offences of the Russian Federation states: administrative liability source system refers only to the Code and the laws of the constituent entities of the Russian Federation. The article contains an analysis of possible interpretations of the provisions of federal laws on the powers of the constituent entities of the Russian Federation to establish adminis-trative liability for failure to implement decisions of the anti-terrorist bodies of the constituent entities of the Federation. Possible interpretations of the term «decisions of an anti-terrorist body» are analyzed from the point of view of the goals and tasks of formation of these bodies, their powers and organizational-steam form. The study concludes that it is necessary to comply with the provisions of the Code of Administrative Offences of the Russian Federation when determining responsibility for failure to implement decisions of the anti-terrorist bodies of the constituent entities of the Russian Federation. It is recommended that the legislatures of the constituent entities of the Russian Federation refrain from adopting such norms. It is recommended that the judicial authorities should take into account the provisions of the Decision of the Plenum of the Supreme Court of the Russian Federation of 24 March 2005 No 5 « On certain issues raised by the courts in the application of the Code of Administrative Offences of the Russian Federation».

FUNDAMENTALS OF THE THEORY OF PRE-CONTRACTUAL LIABILITY

2021 ◽  
pp. 148-161
Author(s):  
Alesya V. Demkina ◽  
Keyword(s):  
Russian Federation ◽  
Civil Code ◽  
Negotiation Process ◽  
Point Of View ◽  
Good Faith ◽  
The Other ◽  
Legitimate Interests ◽  
The Subject ◽  
The Russian Federation ◽  
Special Rules

The article deals with the relatively new rules of Art. 434.1 the Civil Code of the Russian Federation on the conduct of negotiations. Taking into account the current wording of the said rule and the experience of foreign legislation on pre-contractual liability, the article argues for different theories justifying the nature of pre-contractual legal relations and liability and gives different positions of the authors on this issue. Proceeding from the doctrinal concept of obligation and characteristics of pre-contractual relations themselves the conclusion is made that these relations, firstly, are regulated by law and, secondly, they are not simply a legal relation but an obligation. It is based on certain actions of the negotiating partners that give rise to such an obliga-tion. As such, any action that is sufficiently certain (in some cases it may be required by law) and expresses the intention of the person to regard himself as negotiating with the addressee, who will in return perform the same sufficiently certain action, can be regarded as such. The specified characteristics of an action allow us to conclude that, from the point of view of classification of legal facts, this action is an act (because it is performed with a certain in-tention evident to other participants of civil turnover) and, moreover, it is also a transaction. Special rules of the Civil Code of the Russian Federation stipulate that the actions performed to enter into negotiations (for example, if the conclusion of a contract is binding on one party) or the actions of both partners entail legal consequences - the obligation to negotiate in good faith. The analysis of these legal relationships identifies three stages in their development, charac-terises them and attempts to answer more precisely the question of who can be a participant in the negotiation process depending on the stage of the negotiation process. The subject matter of an obligation arising during pre-contractual contacts will be actions aimed at negotiating and concluding a contract. The content of the obligation arising in the course of pre-contractual contacts, based on Art. 434.1 of the Civil Code will be the obligation to negotiate in good faith (paragraph 2 of the above rule). Assuming that the legislator provides an indicative list of actions that should fall within the scope of bad faith conduct, an indicative list of the "standard" of good faith conduct at the negotiation stage is given. This includes the obligation to provide full and truthful information to a party, including the reporting of circumstances that, due to the nature of the contract, must be brought to the attention of the other party (e.g. in a sale, all encumbrances on the subject of the contract must be reported). In addition, persons are obliged to negotiate only if they intend to conclude a contract, not to terminate negotiations suddenly and unjustifiably, and to take into account the rights and legitimate interests of the other party to the negotiation. The obligation under this obligation may also include a requirement not to disclose infor-mation obtained during the negotiation of the contract.

scholarly journals The Legal Status of Subjects of Corporate Relationships: Doctrinal and Law Enforcement Aspects

2021 ◽  
Vol 2 ◽  
pp. 3-7
Author(s):  
Oksana V. Cherkasova ◽  
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Legal Status ◽  
Case Law ◽  
Civil Code ◽  
Law And Order ◽  
Generic Term ◽  
Foreign Law ◽  
The Russian Federation ◽  
The Right

The article reviews the legal status of subjects of corporate relationships, analyzes doctrinal and law enforcement aspects. The author analyzes the scientists’ standpoints, various models of interaction between the subjects of corporate relationships existing in foreign law and order, case law, arrives at conclusions about the correlation between the categories of the “right of participation”, “right of membership”, “right of management”. It is noted that the membership concept evolves out of participation by performing the function of a generic term. It is suggested to determine the “right of management” of a corporation as just one of the member’s activity areas along with other rights. The author recommends to ensure consistency of the provision of Article 2 of the Civil Code of the Russian Federation and Articles 65.2, 65.3 of the Civil Code of the Russian Federation where the concept of the “right of participation” would act as a basic one and the “right of management” would be its constituent part.

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