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Theoretical and Applied Law

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No 4 (2020)
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ARTICLES

6-14 406
Abstract

The article is dedicated to the consideration of the phenomenon of guilt in the sphere of legal philosophy. The reasoning of the similar issue is fulfilled both synchronically and diachronically. In the synchronic field of research authors consider the specificity of guilt in the sphere of private law (civil law, commercial law) as such as in the region of public law (criminal law, administrative law). In the context of the diachronic research of the phenomenon of guilt authors turn themselves to the origin of the legal thought — legislation and legal philosophy of Ancient Greece (first of all, pre-Socratic philosophy of law — Parmenides, Heraclitus etc.) and Ancient Rome. The result of the diachronic analyses is the following conclusion. The guilt in its legal-philosophical aspect presents itself originally as the transformed category of the causality. During the contemporary development of the legal thought the latter is substituted by the interpretation of the guilt as the psychological relation of the person, who has committed the legal deed towards its socially dangerous consequences. The similar conclusion is grounded partly on the comparative examination of the obligations, which derivate from contract and from the infliction of the harm (contractual obligation and delict obligation). In the similar case the guilt as the causal relation is existed between the deliberate or negligent action from oneside and the harm, which is derivated from the similar action — from the other. In this situation the category of delict (the break of the norms and rules) is interpreted as the secondary in historical relation and taking place later than phenomenon of causing the harm. In its turn, the synchronic analyze of the phenomenon of guilt leads authors to the hypotheses, that the form of guilt (criminal intent or criminal negligence) is a criterion, which gives us possibility to distinguish the fields of private law and public law. It`s worth to underline that sphere of gross negligence is the border line (so-called mixed zone) between the public and the private law. As the special case authors underline such institute of the civil law as the responsibility without guilt, when the fact of the committing deed (or even the possession of the certain estate) as such creates the ground of the legal responsibility of the person. Finally authors come to conclusion that the real foundation of the legal responsibility is guilt as the fact of involving in the occurrence, i. e. that concrete situation, “case” which is an ontological ground to turn to the law.

15-30 675
Abstract

The legitimacy is one of the key resources of stability for all political regimes but its importance growing still much in regimes under transformation. The general legitimacy theory exposes why and how the dominant political class disposes the trust of society to stay in power by using available symbolic, moral and legal resources of self-legitimization. In contemporary law-based state the ground of the legitimacy is normally associated with the national constitution – its fundamental values, principles and norms as well as with general public agreement on mode of their application by government institutions and officials. Thus, each important constitutional revision means both the challenge to the established legitimacy and an attempt to reconstruct it in new forms. The author analyses the impact of Russian 2020 constitutional reform in the transformation of the Russian political regime legitimacy. He exposes the reciprocal interconnections between legitimacy and constitutionalism, regarding such items as positive and negative law-making impulses; substantive and instrumental aspects of reform; national, regional and local dimensions; constitutional and meta-constitutional parameters of the legitimization process as well as declared and undeclared reasons, motives, arguments and political technologies of amending process. According his conclusion, the main result of the Russian constitutional reform consists in the reconstructed legitimacy formula as a legal ground for consolidation of power under transition process and a fresh start for the new form of constitutional authoritarianism.

31-38 343
Abstract

The article assesses the quality of legislation regulating the participation of individuals, both from a formal legal point of view (form) and in terms of its social purpose (content). One of the criteria for assessing the quality of legislation is the regulatory regime of the subjects. The difference between the regulatory regime of private individuals and the regulatory regime of public authorities is shown. A list of tasks that can be understood and resolved to a large extent in the legal nature of legislation is provided. One such task is considered — the task of determining the purpose and subject of legislative regulation. The Russian Civil Code is assessed as a system-forming piece of legislation of all Russian legislation. On the basis of the assessment of the state of Russian legislation, it is concluded that the federal law on regulations, which will regulate all the main aspects of legislative and other normative activities: the concept of legislation; Regulatory boundaries Principles of regulatory activity (based on the objectives and subjects of regulation, taking into account the differences in the nature of human activities and the activities of political institutions); types of regulations and their relationship with each other (legislative and by-laws; federal, regional and local acts; centralized and local acts; general and special acts, etc.), including case law, customs, universally accepted principles and norms of international law, international treaties; other aspects corresponding to the content of such a law (in particular, the drafting of the bill, including its public discussion, adoption, publication, modification and repeal, etc.). The determining principle in all cases should be the recognition, observance and protection by the state of the rights and freedoms of a person and a citizen as the highest value (Article 2 of the Russian Constitution).

39-49 418
Abstract

The article is devoted to the consideration of such issues as the permissibility of applying astrent to vindication claims, the possibility of vindication of property that is not expressed in material form. The focus is on studying the prospects of vindication claims in relation to such a new object of economic relations as cryptocurrency. Using formal-logical, retrospective methods, as well as the method of legal constructions, the author first studies the problem of applying a court penalty under the rules of art. 308.3 of the civil code of the Russian Federation (structurally located in the section on binding rights) to a real-law claim-vindicatson claim; secondly, it analyzes the evolution of scientific views on the permissibility of extrapolating real rights to intangible objects, including those that exist in a virtual environment. It is concluded that the question of the legality of awarding an astrent by a decision to satisfy a vindication claim is not clear in doctrinal terms, but judicial practice, in General, considers this issue positively; currently, Russian science is actively trying to determine the place of digital objects in the field of legal regulation. there are no fundamental obstacles to extrapolating the existing practice of the vindication analogy to the sphere of turnover of digital assets and values.

50-54 607
Abstract

The article is devoted to the study of the existing positions in the Russian doctrine regarding the institution of precontractual liability. The ambiguous position of the legislator, the controversial explanations of the judges of the Supreme Court of the Russian Federation do not reduce the relevance of the problem of the unified nature of pre-contractual liability. In this article, the author points out the shortcomings of the legal regulation of determining the time and grounds for applying pre-contractual liability measures, as well as issues of determining a specific mechanism for protecting bona fide negotiators, in particular in the field of identifying the rules for calculating losses incurred.

ESSAYS

55-59 497
Abstract

The article formulated an idea of the possibilities of urban planning regulation in order to develop a new territorial and legal education in the Russian Federation — the federal territory. The concentration of all public powers at the federal level implies the need to strike a different balance of regulation in the exercise of local government powers in relation to urban planning regulation.

60-67 293
Abstract

The article discusses the process of creating social legislation in the United States of America at the beginning of the 20th century. This legislation in the country was created later than in European countries. It was issued during the presidency of Woodrow Wilson. The process of reviewing these bills in the US Congress, as well as the political struggle associated with their development and adoption, the analysis of the documents themselves are the focus of this article.

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ISSN 3034-2813 (Online)