Russian Lawyers Research Articles

Some Administrative and Legal Issues to Ensure the Independence of Judges

The article deals with issues related to the independence of the judiciary in the Russian Federation. The Author analyzes various aspects of the dependence of judges on the chairmen of the courts and their deputies, on the administrative system of the courts. It is noted that the majority of legal scholars believe that the established procedure for appointment, terms of tenure of chairmen of courts and their deputies, the possibility of their reappointment create conditions for their influence on the part of legislative and executive authorities, as well as for abuses by chairmen of courts and their deputies. Various solutions to the problem of the independence of judges, proposed by Russian lawyers, have been investigated. The author concludes that there can be no independent judiciary when there is a rigid power vertical in the courts. Therefore, within the framework of judicial reform, scientists have proposed specific and understandable measures for the population and the judicial community, primarily of a legislative nature, to solve the designated problem.

Некоторые актуальные вопросы правового обеспечения исследования и использования космоса

Introduction. The problem of the backlog of the normative and legal bases in the field of international space law is widely discussed by Russian and foreign international lawyers. The most vital problem is the non-militarization of space, taking into consideration the lack of bilateral and multilateral banning treaties in this field. The realization of the American program for a missile defense in space forces Russia to react. However, the further participation in the nuclear arms race contradicts our national interests. No less dangerous than space weaponization is the stubborn desire of some states to create benefits for the national private users of outer space. The lack of the effective bans in this field leads to undermining of the regime of the agreements in force on the exploration and use of outer space. The current task is to save the positive provisions of the space agreements as well as to ensure the equal rights for all states in their space activities. Materials and methods . Materials used for the analysis include legal works of Russian and foreign researches in the field of international space law and international relations as well as multinational treaties in the sphere of space law, bilateral treaties in the sphere of disarmament, national acts in the sphere of the commercial use of outer space. Methodological procedures of the research include general and specific scientific methods of enquiry (dialectical method, methods of analysis and synthesis, deduction, induction, comparative-legal and historical-legal methods). Research results . Today the main purpose is to bring the rules, concerning the use of outer space in accordance with the today’s requirements. The lag in the legal provisions of our national interests is unacceptable for Russia and will entail unpredictable consequences. Today the strategic potential of Russia is sufficient to overcome the US antiballistic missile system. However, the competition of defensive and offensive weapons always leads to further arms race. One of the most effective means to avoid it is the use of “soft power” in international relations in general and in international relations in the field of using outer space. The use of “soft power” means for example the participation in long- term mutually beneficial projects in space. Discussion and conclusions. According to the author the means to avoid the new round of the arms race in space are the use of “soft power” in international projects of the use of outer space and implementation of existing disarmament agreements. Confrontation is a blind alley: that was the main concept during the disarmament era. The common sense must prevail over momentary interests. This statement can also be applied to the attempts concerning the review of the existing agreements in the field of using of outer space. These agreements should be adapted but not cancelled.

Аспекти будівельного права Російської імперії в “Уложении о наказаниях уголовных и исправительных (видання 1866 р.) та працях тогочасних російських юристів

Аспекти будівельного права Російської імперії в “Уложении о наказаниях уголовных и исправительных (видання 1866 р.) та працях тогочасних російських юристів

Remarks by Sally March

Well, I moved to London thirty years ago, and I joined a small American law firm that was about to open in Moscow, to take advantage of the new opportunities for foreign companies to invest in what was then the Soviet Union. And I was not a Russian lawyer, and I didn't have any particular expertise in this field, but I found myself playing the role of the bridge. I was the bridge between the needs of the Western client and the abilities of the local Russian lawyers, and they were a bridge, a cultural as well as a legal bridge, for the clients to understand this brave new world in which they were trying to do business.

Предпринимательская деятельность публично-правовых образований

The article makes an attempt to answer the question if public and legal formations can realize business activity. Both modern economic practice abroad (for example, Germany) and the views of prerevolutionary Russian lawyers (for example, G.F. Shershenevich) have been taken into account. The conclusion is made that civil legislature does not prohibit public and legal formations to directly realize business activity, but the solution of the given problem lies in the sphere of antimonopoly legislature that imposes some restrictions on the activity of public and legal formations. The analysis is given to the legal position of the Constitutional Court of Russia on the impossibility of combining of executive activity in the sphere of state and municipal management and entrepreneurial activity. It is shown that from a legal point of view, public and legal formations are the least capable of direct business activity. The consideration is given to the example of business activity of public and legal formations (rent of state and municipal property), attention is paid to the controversial issues of qualifying the economic activity of public and legal formations as business activity (subsoil use for payment for mining).DOI 10.14258/izvasu(2017)3-17

Evaluating the Prospects for Young Lawyers to Remake Putin’s Russia

Russian lawyers have traditionally been politically pliant. The paper explores the potential for change. By focusing on the results of a survey of a cohort of 2015 graduates of law faculties across Russia, it asks whether lawyers might be prepared to use their expertise to challenge the Putin regime. About 30 percent of the sample were motivated to study law by a desire to change and improve society. The analysis shows that this group is more supportive of Putin’s policies than the rest of the respondents. This suggests that they are unlikely to lead the charge for greater democracy or spark a resurgence of civil society.

LEGAL NATURE OF INTERNATIONAL PRIVATE LAW AND ITS PLACE IN LEGAL SYSTEM.

This article analyzes the issues of legal nature of international private law and its place in the legal system of the state. In this regard, consider the views of prominent Russian jurists and lawyers of other CIS countries on International Private Law, and is divided into three main concepts regarding the place of private international law in legal system.

Lawyering in Transition. Post-Socialist Transformations in Autobiographical Narratives of Polish and Russian Lawyers

This paper presents preliminary findings on memories from the period of post-socialist transformation and on related narrative constructs of agency in autobiographical interviews with practicing lawyers from Poland and Russia. The study is based on 25 interviews with individuals born in the late-1930s, 1940s and 1950s. Six different types of narrative accounts about the period of post-socialist transformations are identified and described: (i) trailblazer narratives; (ii) follower narratives; (iii) narratives of volatility; (iv) narratives of continuity; (v) latecomer narratives and (vi) narratives of social decay.

Российские правоведы на перепутье: материалистический рационализм или субъективный идеализм?

The expansion of its methodological arsenal of techniques developed from the standpoint of subjective idealism: synergy, hermeneutics, phenomenology, metaphysics, and others are inherent to the modern methodology of legal research. According to Russian lawyers who advertise them, methods are so efficient that they can be used successfully to solve a significant part of the tasks that were previously unaffordable by traditionally used method of knowledge of the state and law. At the same time, the specificity of these methods use in jurisprudence are hardly developed. As a result, practices are not in widespread use of legal science. However, their provisions are used for specific research and entail a number of negative consequences. Firstly, it reduces the requirements for accuracy and validity of the scientific knowledge. Secondly, justify the use of science in the compilations of methods and eclecticism. Third, reduce the interest in socio-legal studies. Crucial means of further development of the methodology of legal research is a creative development of the dialectical method, in the Russian jurisprudence has a long history and a long tradition.

P. P. Hansel

Review. The article analyzes the scientific heritage of the outstanding representative of the Moscow finance law school Paul Haensel. His research has not lost relevance both in terms of content and methodology of financial and legal research. The study of Haensel on municipal (local) tax, land and door taxes, municipal fees, progressive inheritance tax are of great inter- est to our contemporaries. The fact that the legal reforms of the domestic tax system have raised on the agenda concerns about local real tax, special local taxes (parafiscal charges), tax on inheritances, quite unreasonably and hastily expelled from our tax system. Paul Haensel, being an adherent of the sociological trend of Fiscal Science, was far from being an "office" scientist;he was a researcher taking best efforts to implement his ideas into legislative practice. The article also presents the biography of the scientist. Biographies of prominent Russian lawyers are interesting and instructive in itself. They allow you to better understand and evaluate the scientific heritage of the scientists.

Russian Lawyers

The article analyzes the Russian lawyers community in order to assess its potential for collective action in an imperfect institutional environment, its potential for joint efforts to monitor compliance with professional ethics, to improve the quality of legal education, and to represent the interests of the professional group at the state level. Two hypotheses are tested: (1) lawyers with high ethical standards impose a higher demand for collective action; (2) negative personal experience in confronting violations of clients' rights by law enforcement officers bodies may also prompt lawyers to engage in joint action. The conclusion is that with the support of the “healthy core” of the lawyers community it is possible to create an instrument for competent and independent assessment of the state of the law enforcement system in Russia.

The French Bar and the Emerging Legal Profession in Russia

The complex and seemingly inconsistent use of the social vocabulary has been on the research agenda of those who study the Russian Empire for quite some time. Historians have long believed that the indiscriminate use of such terms as (soslovie) and corporation reflected Russian backwardness and eventually impeded further social and economic development, especially when it came to professional groups. The paper examines this assumption by focusing on the terminology deployed for the designation of Russian lawyers, in comparison to their French counterparts. Therefore, it dwells at length on the references to the French Bar in the bureaucratic discussion and in current press at the time of drafting the basic principles of the future Bar organization in Russia between 1857 and 1864. The comparison of the two sets of references provided plenty of evidence that the French notion of the estate (l'ordre des avocats) had a dramatic impact on the interpretation of Russian soslovie of legal practitioners. The French model seemed to spur social imagination and eventually helped Russian political and intellectual elites envisage a new type of social organization encompassing free, well-educated and politically engaged men.

Is Sharia Compatible with Contemporary Russian Law?

The analysis of the interaction between Sharia and legislation in action along with the compatibility of Sharia with contemporary Russian law is important from both a scientific and a practical point of view. There are several reasons for the increasing interest in this issue: the renaissance of Islam, the activity of Muslim communities outside the regions where Islam has traditionally spread, the threat of Islamic extremism, and the increasing influence of Sharia upon the political and legal development of the Muslim world. Russian researchers do not have a common attitude to Sharia’s relation to Russian legislation. They put forward different arguments for and against including Sharia in the official legal system. Along with these, some Russian lawyers make attempts to find the legal possibility or even necessity of including Sharia in contemporary Russian reality, including norms, principles and institutions in the legislation. There are three modes of possible interaction between Sharia and state legislation. The first is represented by the direct inclusion of Sharia norms into the legislation. The second is legal acts which refer to historical or local traditions. The third is that Sharia provisions can be used for solving issues which are provided for by dispositive norms of state legislation.

Judicial reform in the Kingdom of Poland in 1876

Work on judicial reform in the Kingdom of Poland began at the end of 1864 amid the aftermath of the defeated January 1863 uprising and the resulting gradual abolition of the country’s legal and political separation from Russia. It was decided that the Russian Judicial Laws of 1864 were to be implemented in the Kingdom, yet all of their solutions providing for the society’s participation in administering justice were removed during the twelve years long legislative process. Jury trial was abandoned, the election of justices of the peace replaced with their appointment, and the irremovability of judges was severely restricted. Also, the bar did not receive any autonomy. The goal behind the judicial reform in the Kingdom was not only unifying its judiciary with that of Russia but also its Russification. Russian became the official language of the courts and the newly appointed judges were to be Russian lawyers. On the other hand, an undeniable improvement was brought about by the introduction of Russian civil and criminal procedure in the Kingdom. The former remained in force in the central and eastern parts of the independent Polish state until 1933 and the latter – until 1929.

Law Studies

At the origin of the International Law Department were such eminent scientists, diplomats and teachers as V.N. Durdenevsky, S.B. Krylov and F.I. Kozhevnikov. International law studies in USSR and Russia during the second half of the XX century was largely shaped by the lawyers of MGIMO. They had a large influence on the education in the international law in the whole USSR, and since 1990s in Russia and other CIS countries. The prominence of the research of MGIMO international lawyers was due to the close connections with the international practice, involving international negotiations in the United Nations and other international fora, diplomatic conferences and international scientific conferences. This experience is represented in the MGIMO handbooks on international law, which are still in demand. The Faculty of International Law at MGIMO consists of seven departments: Department of International Law, Department of Private International and Comparative Law; Department of European Law; Department of Comparative Constitutional Law; Department of Administrative and Financial Law; Department of Criminal Law, Department Criminal Procedure and Criminalistics. Many Russian lawyers famous at home and abroad work at the Faculty, contributing to domestic and international law studies. In 1947 the Academy of Sciences of the USSR published "International Law" textbook which was the first textbook on the subject in USSR. S.B. Krylov and V.N. Durdenevsky were the authors and editors of the textbook. First generations of MGIMO students studied international law according to this textbook. All subsequent books on international law, published in the USSR, were based on the approach to the teaching of international law, developed in the textbook by S.B. Krylov and V.N. Durdenevsky. The first textbook of international law with the stamp of MGIMO, edited by F.I. Kozhevnikov, was published in 1964. This textbook later went through five editions in 1966, 1972, 1981, 1987. In 1994 the International Law Department together with the Diplomatic Academy of the Russian Ministry of Foreign Affairs prepared new textbook, reflecting the development of international law in the 1960-1990s. In 2000 "International Law" textbook appeared, which was prepared exceptionally by the Department of International Law at MGIMO. In 2005 "European international law" textbook was published. It became the first textbook in Russian Law studies dedicated to the international legal aspects of interstate cooperation in Europe. Quarterly magazine "Moscow Journal of International Law" has made significant contribution to the development of the MGIMO international law school. Y.M. Kolosov, who is the Honored Scientist of Russia and professor of international law, was the founder of the magazine. He has been its editor in chief up to present.

CONDITIONS OF TRANSACTION VALIDITY UNDER RUSSIAN AND FRENCH LAW

In the article the authors give the main characteristics of conditions of transaction validity according to the Russian and French law. In Russia, as well as in France, a transaction (agreement) which does not meet any of these conditions may be recognized as invalid in part or in full. The conditions of transaction validity are not specified directly in Russian laws, in contrast to the French legislation. Russian lawyers share the opinion that the conditions of transaction validity include the following: the content and the legal result of the transaction must not contradict to law; individuals and legal entities performing the transaction, must have capacity to be a party to the transaction; the expressed will of the transaction party must correspond to its actual will; the will of the transaction party must be expressed in due form. French legislation, in particular, the French Civil Code in the Article 1108 directly specifies the following conditions of transaction (agreement) validity: the party, which undertakes its obligations, must express its consent; the parties must have the capacity to make an agreement; certain subject, which represents the obligation's content; causa of the obligation. Article 1108 of the FCC does not contain direct provisions regarding the form of the transaction. However, in order to be valid, the transaction must be executed in certain legally established form. Also the article deals with the main common and different features in Russian and French legislation and doctrine.

Struggle of the deputies of the first State Duma for the expansion of the legislative powers and for the elimination of the state council (april-june 1906)

The paper is devoted to the struggle of the 1st convocation deputies of the State Duma of the Russian Empire for the expansion of legislative powers and for the elimination of the upper house the State Council. The attitudes of various parties and periodicals and the opinion of leading Russian lawyers of the beginning of the XX century on the matter are presented. Peasants mandates to the deputies concerning the demand for the sovereign State Duma are analyzed. The attitude of certain deputy groups concerning the expansion of legislative powers of the Duma is presented. Two stages of struggle for the expansion of legislative powers and elimination of the State Council are discussed.

Transitional Justice in Chechnya: NGO Political Advocacy for Implementing Chechen Judgments of the European Court of Human Rights

This article asserts that Russian nongovernmental organizations (NGOs) contribute to processes of transitional justice in Chechnya through their litigation in front at the European Court of Human Rights (ECtHR). Having delivered more than 200 judgments on atrocities which occurred during the two recent conflicts in Chechnya, the ECtHR has repeatedly ruled that the state should pay financial compensation to the victims. While the Russian Federation has been following through on such payments, human-rights monitors allege that domestic authorities have failed to take active measures to address the atrocities themselves.Through a qualitative interview study with Russian lawyers and NGO representatives, this article seeks to scrutinize how NGOs have been using the ECtHR’s mechanisms and judgments by way of leverage to initiate processes of transitional justice in post-conflict Chechnya. It appears that the ECtHR is not an end-station for human-rights claims and individual grievances but, rather, the start of a series of further claims. NGOs: (a) engage in political advocacy in implementing the judgments; and (b) create leverage for the criminal prosecution of perpetrators.

CONCEPT AND ESSENCE OF CRIMINAL PUNISHMENT OF DOCTRINES OF THE RUSSIAN LAWYERS OF THE XIXth – THE BEGINNINGS OF THE XXth CENTURIES

In the article various approaches to concept and essence of the criminal punishment, developed by the Russian lawyers in the XIXth – the beginning of XXth centuries are analysed. In this connection the various points of view on the put problem are systematized and generalizing conclusions on understanding of criminal punishment during the considered period of development of Russian legal thought are drawn.

A Woman's Kingdom: Noblewomen and the Control of Property in Russia, 1700-1861, and: Pravovoe regulirovanie imushchestvennykh otnoshenii v Rossii vo vtoroi polovine XVIII veka [The Legal Regulation of Property Relations in Russia in the Second Half of the 18th Century], and: In Search of Legality: Mikhail M. Speranskii and the Codification of Russian Law (review)

Reviewed by: A Woman’s Kingdom: Noblewomen and the Control of Property in Russia, 1700–1861, and: Pravovoe regulirovanie imushchestvennykh otnoshenii v Rossii vo vtoroi polovine XVIII veka [The Legal Regulation of Property Relations in Russia in the Second Half of the 18th Century], and: In Search of Legality: Mikhail M. Speranskii and the Codification of Russian Law William E. Butler (bio) Michelle Lamarche Marrese , A Woman’s Kingdom: Noblewomen and the Control of Property in Russia, 1700–1861. xvi + 276 pp. Ithaca, NY: Cornell University Press, 2002. ISBN 0801439116. $42.50. Tat’iana Evgen’evna Novitskaia, , Pravovoe regulirovanie imushchestvennykh otnoshenii v Rossii vo vtoroi polovine XVIII veka [The Legal Regulation of Property Relations in Russia in the Second Half of the 18th Century]. 568 pp. Moscow: Zertsalo, 2005. ISBN 5943731113. William Benton Whisenhunt, , In Search of Legality: Mikhail M. Speranskii and the Codification of Russian Law. 6 + v + 154 pp. Boulder, CO: East European Monographs, distributed New York: Columbia University Press, 2001. ISBN 0880334681 $33.00. The "Bologna Process" may be an unusual vantage point from which to approach a review of the two Western works under consideration here. Each originated as a dissertation at a distinguished university in the United States for the degree of doctor of philosophy (Ph.D.). Each makes a contribution in its own way to the advancement of scholarship, but the differences in the measure and quality of contribution are so immense as to create wonderment that the same degree could be conferred on the authors within the same system of higher education. Of course, different universities, different standards, different examiners, perhaps different circumstances. But I remain more persuaded than previously that a two-cycle doctorate, as exists in the United Kingdom (e.g., in law: Ph.D. or D.Phil., LL.D.) and the Russian Federation (e.g., kandidat and doktor of legal sciences), should be introduced in the United States. The field of legal history in Russia is enjoying a renaissance as never before. The "civilian" legal historians (the term used by Russian lawyers for [End Page 657] historians of Russian law not trained as lawyers—on whose shoulders rested the immense documentary achievements of the Soviet era, by the way: the definitive texts of the Russkaia pravda, Sudebniki, Sobornoe ulozhenie, and others)—are belatedly being joined by the legal community in producing important works. The lawyers are mostly using their legal history as a source for contemporary law reform, and rightly so. Naturally their focus is on the normative substance of Russian rules and institutions—real law and legal reasoning—and less on the socio-economic dimension. Russian legal publishing houses (especially IurinfoR, Statut, and Zertsalo) have, with the support of the Russian Federation and the major legal commercial computer data bases, Garant and Konsul´tantplus, produced impressive series of reprints (not, as a rule, facsimile) in modern orthography and with substantial introductions (many translated in Sudebnik). These deserve notice in this journal in their own right. They are collectively changing the modern face of Russian legal history. Turning to the works under review, I begin with Dr. Whisenhunt's monograph on the role of Mikhail Mikhailovich Speranskii in the codification of Russian legislation, namely—and let us not understate the measure of achievement—the greatest systematization (Polnoe sobranie zakonov Rossiiskoi imperii [hereafter PSZ]) and codification (Svod zakonov Rossiiskoi imperii [hereafter SZ]) of legislation, in its day, on this planet and far ahead of anything commensurate in continental Europe, England, or the United States. I reviewed this work in isolation elsewhere,1 so it is perhaps slightly unfair for the author to have to endure the scalpel twice. Kritika, however, enjoys a different readership with different concerns. I also have reflected more on the work, having reread it for this review and had the benefit of seeing it against the other two books being considered here. Whether, as Whisenhunt undertakes to demonstrate, Marc Raeff was correct in characterizing the "compilation of the PSZ and SZ in the 1830s [sic]" as the "fullest expression of Speranskii's political ideas" sounds preposterous to a lawyer and is certainly bereft of any redeeming value as a dissertation thesis. Raeff will have had his own...