scholarly journals Nature and classification of special principles of national labour law

2021 ◽  
Vol 12 (1) ◽  
pp. 123-130
Author(s):  
Valentin V. Ershov ◽  
◽  
Elena A. Ershova ◽  
Keyword(s):  
Legal Positivism ◽  
Labour Law ◽  
Law Enforcement Agencies ◽  
Law System ◽  
Labour Relations ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Jus Cogens ◽  
Legal Understanding

Most often, the principles of law in specialized literature are understood as the “initial principles”, “ideas” and “provisions” of law. It seems that such conclusions could only be made from the standpoint of legal positivism, which restricts essentially “all” law only to the norms of labour law contained in national legal acts. The article makes a different conclusion: ontologically homogeneous elements are synthesized from the position of the scientifically substantiated concept of integrative legal understanding, first of all, the principles and norms of labour law contained in a single, developing and multilevel system of forms of national and (or) international labour law implemented in the state. With this theoretical approach, the principles of law can be controversially referred to as quite vague “principles,” “ideas,” and “positions”. In support of their position, the authors of the article present several vivid examples of application of the Ruling No. 21 of the Plenary Session of the Supreme Court of the Russian Federation on June 2, 2015 “On Certain Issues that Arose in the Courts when Applying Legislation Governing the Work of the Head of the Organization and Members of the Collegial Executive Body of the Organization”. The article provides an overview of ideas about the principles of law and their change in the pre-revolutionary, Soviet and modern periods. The authors emphasize that the special principles of national labour law are derived from the fundamental (general) principles of both national and international law which, by their nature, constitute undeniable law (jus cogens) binding on law-making and law-enforcement agencies as well as officials. The article advocates the position that the special principles of national labour law are the fundamental, primary elements of the labour law system that independently regulate labour relations in order to specify the norms of labour law.

Transformation of Social and Labor Relations in Entrepreneurship

2018 ◽  
Vol 7 (2) ◽  
pp. 56-60
Author(s):  
Е. Вашаломидзе ◽  
E. Vashalomidze ◽  
С. Анохин ◽  
S. Anokhin
Keyword(s):  
Russian Federation ◽  
Labor Relations ◽  
Maximum Size ◽  
Labour Law ◽  
Labour Relations ◽  
The Russian Federation ◽  
Methodological Approaches ◽  
Unique Specificity

The article shows some problems of social and labour relations in entrepreneurship on the example of the payment of entrepreneurial labor in connection with the lack of the necessary methodological support of calculations of the complexity of this work. At that time according to article 132 “Remuneration of labor” of the Labor code of the Russian Federation of December 30, 2001 No. 197-FZ (in edition as of October 1, 2016) the salary of each worker depends on his qualification, complexity of the performed work, quantity and quality of the spent work and the maximum size is not limited. At the same time, any discrimination in setting and changing the conditions of remuneration is prohibited. This requirement of labour law should be respected with regard to the wages of employees of enterprises and organizations in any sphere and sector of the economy, including the economy of entrepreneurship, in view of employees engaged in entrepreneurial work. At the same time, entrepreneurial work has its own unique specificity, but in practice these specific wage conditions are not taken into account. Involuntarily, there is discrimination of entrepreneurial labor in the field of wages due to the lack of necessary methodological recommendations to address this problem. First of all, there is a lack of methodological approaches to determine the complexity of entrepreneurial labor, taking into account such important fundamental signs of its complexity as uncertainty, risks and competition.

scholarly journals The Freedom of Association Mess: How We Got into It and How We Can Get out of It

2009 ◽  
Vol 54 (1) ◽  
pp. 177-212 ◽  
Author(s):  
Brian Langille
Keyword(s):  
Constitutional Law ◽  
Supreme Court Of Canada ◽  
Freedom Of Association ◽  
Labour Law ◽  
Labour Relations ◽  
State Action ◽  
Starting Point ◽  
The Supreme Court ◽  
The Impact ◽  
The Relationship

Abstract Canadian constitutional law regarding freedom of association for workers is a mess. The jurisprudence to date has taken an approach to state action and positive obligations to legislate which is inconsistent with section 15, and has failed to articulate the relationship between the abstract statement of basic rights or freedoms and the detailed statutes and regulations that instantiate and enforce them. This paper focuses on the impact of the recent decision of the Supreme Court of Canada in BC Health. The author argues that this case misunderstood Canada’s labour law history, international labour law obligations, “Charter values”, and the distinction between “freedoms” and “rights”. This paper argues that by using labour relations statutes as a starting point and applying the constitutional idea of equality, courts can protect freedom of association for workers and find a way out of the mess we are in.

scholarly journals From the Rejection of Court Disqualification to the Change of the Territorial Jurisdiction

2021 ◽  
pp. 22-26
Author(s):  
Antonina S. Taran ◽  
Keyword(s):  
Law Enforcement ◽  
Recent Change ◽  
Law Enforcement Agencies ◽  
High Position ◽  
Territorial Jurisdiction ◽  
Procedure Code ◽  
The Supreme Court ◽  
The Status ◽  
Cast Doubt ◽  
The Russian Federation

The author refers to the institution of rejection as one of the most important guarantees of the independence of judges. The relevance of this research is due to the need to study and demonstrate the mechanism of influence of the ECHR decisions on Russian legislation and law enforcement practice. The article tracks the recent change in the position of the Supreme Court of the Russian Federation on the issue of rejection judges due to the special status of the person whose interests are affected by the criminal case under consideration/. In particular, it can be the status of a judge, a high position in law enforcement agencies and so on. The specificity of this rejection is to extend to the entire composition of the court, which makes it necessary to change the territorial jurisdiction. The author concludes that the fixing in part 1 of art. 35 of the Criminal procedure code of such a reason change territorial jurisdiction, as «the existence of circumstances that may cast doubt on the objectivity and impartiality of the court» has not eliminated entirely the need for use of the institution of rejection.

Legal regulation challenges of «labour leasing»

10.12737/5580 ◽  
2014 ◽  
Vol 2 (2) ◽  
pp. 87-92
Author(s):  
Марина Кроз ◽  
Marina Kroz
Keyword(s):  
Russian Federation ◽  
Legal Regulation ◽  
Critical Assessment ◽  
Entrepreneurial Activity ◽  
Federal Law ◽  
Labour Law ◽  
Labour Relations ◽  
The Russian Federation ◽  
Legal Forms ◽  
Peremptory Norms

The article discusses the current regulatory matters of «Labour Leasing». According to the Federal Law these relations are qualified as labour relations with the legal forms of mediation. The article describes the main provisions of a legislative act. The author gives a critical assessment of the Act and identification provisions used of the contract model and temporary transfer design. The article concludes about non-compliance with the principles of the Act and contractual freedom and general provisions of the Labour Law of the Russian Federation. In addition, the author uses peremptory norms of the Act with determining the form, transfer personnel treaty. It expands attracting subjects of entrepreneurial activity to administrative responsibility.

scholarly journals Features of informatization of the criminal process in the context of the pandemic: New challenges

2021 ◽  
Vol 12 (3) ◽  
pp. 544-554
Author(s):  
Evgenii V. Smakhtin ◽  
◽  
Irina G. Smirnova ◽  
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Russian Federation ◽  
Information Technologies ◽  
Criminal Procedure ◽  
Digital Data ◽  
Law Enforcement Agencies ◽  
The Supreme Court ◽  
Coronavirus Infection ◽  
The Russian Federation

The article analyses the features of the application of the current criminal procedural legislation in practice in the context of the new coronavirus infection (COVID-19) after recognizing it as a disease that poses a danger to others, the Decree of the Presidium of the Supreme Court of the Russian Federation of April 08, 2020 and Reviews on certain issues of judicial practice related to the application of legislation and measures to counter the spread of the new coronavirus infection in the Russian Federation of April 21, 2020 and April 30, 2020. However, the difficulties that have arisen in law enforcement practice, also assessed in the article, indicate that criminal procedural legislation will be adjusted in the near future since the number of Decisions of the Presidium and the Plenum of the Supreme Court of the Russian Federation are not sufficient to eliminate ambiguities and contradictions in the Code of Criminal Procedure of the Russian Federation. In particular, the article reflects such key problems as the emerging system of procedural decisions at the pre-trial and trial stages in a pandemic, the possibility of considering not only criminal cases but also case materials using videoconferencing systems as well as the prevailing and optimal understanding by law enforcement agencies of the category “urgency” of such consideration. The authors pay special attention to the absence in the Code of Criminal Procedure of the Russian Federation of the concepts introduced by paragraph “m” Art. 7 of the Constitution of the Russian Federation such as “information technologies” and “digital data turnover”. The results of the study make it possible to formulate proposals for improving criminal procedural regulation in terms of the described problems.

scholarly journals Mercenary Purpose in Theft: Are There Limits To Broad Interpretation?

Lex Russica ◽  
2020 ◽  
pp. 93-102
Author(s):  
V. V. Khilyuta
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Point Of View ◽  
Broad Sense ◽  
The Supreme Court ◽  
Objective Classification ◽  
The Russian Federation ◽  
Broad Interpretation ◽  
Different Content

The paper deals with the issue of the modern understanding of the mercenary purpose as an element of theft and its forms — fraud, misappropriation and embezzlement. The author closely analyzes the Plenum of the Supreme Court of the Russian Federation Resolution No. 48 dated 30 November 2017 "On court practice on cases involving fraud, misappropriation and embezzlement" in view of the discussion of understanding mercenary purpose in litigation. The author polemically sets out the point of view that it is impossible to interpret a mercenary purpose in a broad sense — as the ability to dispose of stolen property at their own discretion, including in favor of other persons, whose circle is unlimited. It is proved that the term "lucre" cannot reveal the content of the purpose of theft, since lucre is inherent not only in theft, but also in other crimes. "Lucre" can only indicate the attitude of a person to the act of his behavior, the method of committing a crime, but does not characterize the purpose of his actions, as a result of which the concept of mercenary purpose can be filled with different content. Mercenary motives should determine the existence of a mercenary purpose, and non-mercenary motives should exclude the qualification of committed acts as theft of someone else’s property. The explanation of a mercenary purpose proposed by the Supreme Court of the Russian Federation significantly shifts the scope of the presence of elements of theft and transfers them to an earlier stage. Evening a mercenary purpose with the purpose of gaining (receiving) property benefits is not certain, since property benefits can also be extracted from the illegal use of other people’s property. For the objective classification of theft, the motive of the perpetrator’s behavior and the nature of his actions must be essential. Therefore, from the point of view of subjective elements of theft, its purpose should indicate that such an act is aimed at enriching the perpetrator or other persons, the circle of whom should be limited.

The Territorial Approach to the Content of the Closest Connection Principle

2021 ◽  
pp. 251-260
Author(s):  
Tatiana V. Novikova ◽  
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Private International Law ◽  
The European Union ◽  
Law System ◽  
The Supreme Court ◽  
Independent States ◽  
The Russian Federation ◽  
Territorial Approach

The main aim of the research is to substantiate the predominant role of the territorial approach to the content of the closest connection principle. The research is conducted in three steps. Firstly, the title “territorial” (instead of “conflict of laws”) approach is defended. Secondly, the objective test of the closest and most real connection defined by the Bonython formula, which was elaborated in English case law, is analysed. Thirdly, the norms of the private international law of the Russian Federation, other states members of the Commonwealth of Independent States, and the European Union reflecting the closest connection principle are also analysed. As a result of the research, the following conclusions are formulated. Firstly, the closest connection principle is based on the territorial approach and absolutely cannot function without it. At the same time, material law factors (including weaker party protection, lex validatis, etc.) supplement the territorial approach being able to tip the scale in favour of one of the territorially connected legal orders. On this basis, the author proposes to consider the closest connection principle in narrow (territorial) and broad (territorial, supplemented by material law factors) senses instead of various approaches to its content. Secondly, the territorial approach to the content of the closest connection principle is based on search for contacts with a state (country), whereas the territorial approach enrichment with overriding material law factors, caused by the general trend of private international law materialization, is aimed at the analysis of one or another law’s preferences and consequently at the revelation of links with law (system of law). Nevertheless, the analysis of norms of private international law allows concluding that, when prescribing the closest connection principle, the legislator does not make a distinction between terms “country” and “law”, and therefore one should not overemphasise these terms in attempts to understand the content of the principle. Thirdly, modern private international law acknowledges the closest connection principle in broad sense as territorial localization supplemented by material law factors, which is indicated in particular by para. 6 of the Supreme Court of the Russian Federation Regulation “On the Application of Norms of Private International Law by the Courts of the Russian Federation”. What is specifically important, the necessity to add material law considerations and their legal weight should be evaluated by the court on the basis of analysing the substance of the existing legal relations between the parties as well as the aggregate of other circumstances of the case.

scholarly journals The Labour Relations and the Canadian Charter; the aftermath of the first decisions

2019 ◽  
Vol 19 (4) ◽  
pp. 895-907
Author(s):  
J. Maurice Cantin
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Labour Law ◽  
Canadian Charter ◽  
Labour Relations ◽  
The Supreme Court ◽  
The Right ◽  
The Impact

The Charter was introduced at a time when there was no real demand for its existence. In this article, the author reviews the origin of the Charter and examines the impact on labour law of the initial decisions rendered by our Courts. He examines more particularly some of the first Charter decisions emanating from the Supreme Court of Canada. He writes that the Charter may have a damaging effect on labour law especially in relation to the right to strike and to picket. He concludes that the Charter is ill-suited for use in the labour relations domain.

scholarly journals Labour law defects and means of overcoming them

2021 ◽  
pp. 314-322
Author(s):  
Yana Simutina
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Negative Impact ◽  
Labor Law ◽  
Labour Law ◽  
Labour Relations ◽  
Legal Norms ◽  
The Supreme Court ◽  
Labour Legislation ◽  
Litmus Test

Introduction. Defects in labour law are certainly a negative phenomenon. They can be used by unscrupulous employees or employers, violating the rights and legitimate interests of the other party to the employment relationship. In addition, defects in legal norms create obstacles to proper law enforcement, which, in turn, threatens to misinterpret them and is also the cause of conflicting law enforcement practices. The aim of the article is to clarify the general characteristics of defects in labor law, their negative impact on law enforcement practice, as well as to outline some ways to prevent and overcome defects in labor law. Results. The article is devoted to the study of defects in labour law, their varieties and characteristics. The author's attention focuses on the issue of the negative impact of defects in labor law, in particular, law enforcement practice. The most common defects in labour law are analyzed. The necessity of legislative consolidation of the principle of good faith of the parties to labour relations in labour legislation is justified. The Supreme Court plays a significant role in identifying and overcoming defects in labour law at the stage of law enforcement in labor disputes. The existing court practice is a kind of litmus test of which norms of the current labour legislation are defective, ineffective, ambiguous, etc. In this regard, it seems appropriate when finalizing the draft of the new Labour Code of Ukraine to pay more attention to case law and analyze the legal position of the Supreme Court in disputes arising from labor relations, in order to identify the most common defects of labour law and prevent them at the rule stage. Conclusions. The defects in labour legislation can be prevented both at the stage of adoption of a normative legal act by formulating the idea of the draft law, its concept, and carrying out its proper examination. At the stage of legal implementation, defects can be eliminated by introducing amendments and additions to the normative act and/or by eliminating defective labour law norms. It is possible to overcome defects in the process of law enforcement with the help of methods of interpretation, application of analogy of law and analogy of lex.

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