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Russian Journal of Economics and Law

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Vol 10, No 4 (2016)

THE DIALECTICS OF ANTI-CORRUPTION

5-17 623
Abstract
Objective: basing on the studied scientific literature and legislation on corruption counteraction, to elaborate the concept of corruption in the education sector, highlighting its specific features, characteristics, forms and types, and attracting the attention of the scientific community to the discussion of the categorical apparatus of corruption in education and its prevention.Methods: dialectical method of cognition.Results: basing on the analysis of scientific literature and the Russian legislation on corruption counteraction, the characteristic features of corruption in education were revealed: the sphere of existence, the specificity of the subjects of corruption relations in education, specific features of the goals of corruption; the types of corruption were classified according to various grounds (depending on: the types of educational organizations that implement basic educational programs; the nature of authority used by the persons who have administrative powers in educational institutions; the quantitative composition of the subjects; the nature of the use of official position by the subjects of passive bribery in the corruption relations in education; organizational structure of corruption relations in education; the nature of accrued benefits; the nature and degree of public danger). In the conclusion the author proposes the definition of corruption in education, which is interpreted as the negative socio-legal phenomenon existing in social relations in the sphere of education and consisting in the wrongful use of an official position and status of the participants of relations in the sphere of education in order to accrue benefit of tangible and (or) intangible nature, for themselves or third parties, as well as to provide such benefits.Scientific novelty: for the first time the article considers the characteristic features of corruption in education, highlights its forms and types, and proposed a definition of corruption in education.Practical significance: the main provisions and conclusions of the article can be used in the scientific, enlightenment and educational activities in addressing the issues of corruption and its prevention in the education sector.
18-26 214
Abstract
Objective: to develop the author’s concept of corruption counteraction.Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors that determined the choice of the following research methods: formal-logical, systematic, content analysis.Results: the authors have analyzed and proposed definitions of such notions as: anti-corruption monitoring, corruption counteraction, legal regulation, subjects of counteraction; the main methods of counter-corruption management system evaluation are highlighted. The necessity is grounded to use the data of applied criminological research and the media to prevent and combat corruption, to establish the monitoring mechanisms, in particular, providing the legal and social diagnostics of legal conscience.Scientific novelty: for the first time the article presents and justifies the author's concept of the mechanism of socio-legal control of law enforcement in the aspect of the implementation of its preventive function in the sphere of corruption crimes counteraction.Practical significance: the findings of the article can be used in scientific, educational and law enforcement activities in addressing the issues related to the identification, suppression and prevention of corruption crimes.
27-44 218
Abstract
Objective: to analyze the problems of identifying and impleading the persons guilty of corruptive administrative offenses and the role of theProsecutor’s Office in this activity.Methods: formal logical method, systemic method, comparative legal, statistical.Results: the author proposes to include a special chapter in the Russian Administrative Code on corruptive administrative offences, and to provide for the possibility of exemption from administrative liability of legal persons, who actively contributed to the disclosure and (or) investigation of crime, or when there has been extortion of bribes from officials, or if a legal person after the crime voluntary informed on bribery to the body entitled to institute criminal proceedings. In the process of research, the author proposed a new wording of Article 19.28 of the Russian Administrative Code, providing for liability of not only legal entities but also individuals, engaged in entrepreneurial activities without forming a legal entity.Scientific novelty: the existing problems of impleading for committing corruptive administrative offences are identified and classified, the ways of their solution are proposed.Practical significance: the research results can be used in the practical work of prosecutors, as well as in the development of proposals on improvement of the Russian Code of Administrative Offences.
45-53 264
Abstract
Objective: to consider the issue of efficiency of anti-corruption policy and criminal law in corruption counteraction, primarily, bribery. Methods: systemic method, general scientific methods (structural-functional analysis, comparison, logical method, content analysis of the practice of the courts and the mass media).Results: the authors critically evaluated the existing state of affairs in corruption counteraction and grounded the necessity of the exception from the Russian Criminal Code of the norm stipulated by Article 304 ("Entrapment for a bribe or commercial subornation"), as not corresponding to the modern criminological realities. At the same time, the successful corruption counteraction (including its most dangerous and widespread manifestation - bribery) requires a nonstandard approach, one part of which could be the legalization of a norm of legitimate provocation. Scientific novelty: the article describes the author's attitude to the problem of corruption crime counteraction. The use of non-standard (hard) measures against bribery is justified.Practical significance: the possibility to increase the efficiency of the corruption counteraction mechanism through the application of adequate criminal-legal measures.

ECONOMICS AND NATIONAL ECONOMY MANAGEMENT

54-65 213
Abstract
Objective: to identify the economic-anthropological component of the development of food market in Tatarstan within the concept of Islamic economy.Methods: discursive, comparative, general scientific methods of analysis and synthesis, ethno-sociological survey.Results: the Halal food market of Islamic economy is a subject of scientific and practical interest for several reasons: it is a dynamically developing, promising market with great potential and development opportunities. To achieve the stated objective, the authors analyzed the studies of domestic and foreign scientists on the essence and organization features of the Islamic economy. Conclusions were formulated about what Halal food is primarily associated with the complex religious, not gastronomy requirements. The analysis of the food concepts in the Islamic culture has showed that the fundamental characteristic of food is its permissibility.To determine the concepts of Halal products existing among the Muslims, a Halal products market research was conducted in Kazan. First of all, to determine the ethno-religious profile of the Halal products consumers the structure of ethnic populations was analyzed, the change in their numbers over the last 20 years and the reasons for such change. The next part of research involved conducting a poll among men and women - Tatars aged 18 to 30 years. The main aim of the survey was to determine the causes of food behavior of the population. According to the survey results, the key conclusion was formulated that for this age group the choice of food is not determined by religious considerations but by the desire for healthy and proper nutrition. The survey results allowed to compile a list of recommendations for improvement of the functioning of the Halal market subjects and the state and municipal bodies.Scientific novelty: for the first time an interdisciplinary approach was used (at the intersection of economics, sociology and anthropology) for this research topic. On the basis of the survey, the reasons for consumption of Halal products by the Kazan Muslims were identified.Practical significance: the research results can be applied by the state and municipal authorities to support decisions in the areas of trade regulation, consumer markets, outdoor advertising in the Republic of Tatarstan and in Kazan. In addition, they can be used by economists and anthropologists for comparison and extension of the research areas.

MATHEMATICAL AND INSTRUMENTAL METHODS IN ECONOMICS

66-76 204
Abstract
Objective: to estimate the impact of the social and human capital on the economic growth, basing on the data of the Russian regions.Methods: econometric modeling of economic growth based on the Mankiw-Romer-Weill model and its specification proposed by Ishise andSawada, Nonneman and Vanhoudt.Results: the paper estimates the aggregate input of intellectual and social capitals of the Russian region. For this purpose, we apply, similarly to Ishise and Sawada, Nonneman and Vanhoudt, the augmented version of the Mankiw-Romer-Weill model, including social capital as an additional production input. Besides, we substitute the human capital for intellectual capital in this model. The estimated elasticity of the intellectual and social capitals is approximately 0.163 and 0.177 respectively.Scientific novelty: it is proved that the intellectual and social capital of the Russian regions positively affects their economic growth. The contribution of the intellectual and social capital into the total DRP (by the elasticity of the production function) is equivalent to the contribution of physical capital (0.346). The contribution of physical capital is comparable with the contribution of the economically active population (labor force), and constitutes 0.379.Practical significance: the conclusions of the article can be used to ground the role of intellectual and social capital for the development of theRussian regions, and to determine their contribution into the country’s economic growth.
77-87 254
Abstract
Objective: to summarize the methods of deterministic factor economic analysis, namely the differential calculus and the integral method. Methods: mathematical methods for integro-differentiation of non-integral order, the theory of derivatives and integrals of fractional (non-integral) order.Results: the basic concepts are formulated and the new methods are developed that take into account the memory and non-locality effects in the quantitative description of the influence of individual factors on the change in the effective economic indicator. Two methods are proposed for integro-differentiation of non-integral order for the deterministic factor analysis of economic processes with memory and non-locality. It is shown that the method of integro-differentiation of non-integral order can give more accurate results compared with standard methods (method of differentiation using the first order derivatives and the integral method using the integration of the first order) for a wide class of functions describing effective economic indicators.Scientific novelty: the new methods of deterministic factor analysis are proposed: the method of differential calculus of non-integral order and the integral method of non-integral order.Practical significance: the basic concepts and formulas of the article can be used in scientific and analytical activity for factor analysis of economic processes. The proposed method for integro-differentiation of non-integral order extends the capabilities of the determined factorial economic analysis. The new quantitative method of deterministic factor analysis may become the beginning of quantitative studies of economic agents behavior with memory, hereditarity and spatial non-locality. The proposed methods of deterministic factor analysis can be used in the study of economic processes which follow the exponential law, in which the indicators (endogenous variables) are power functions of the factors (exogenous variables), including the processes described by the Cobb - Douglas production function, since these methods allow to more accurately describe the total influence of the factors in comparison with the standard method. The proposed methods can be used in the study of economic processes described by equations with a power-law non-locality in factor space and in state space.

THEORY AND HISTORY OF LAW AND STATE

88-95 410
Abstract
Objective: to analyze the influence of the Russian legislation quality on its effectiveness.Methods: systemic and functional approaches, logical methods of cognition: analysis, synthesis, induction, deduction, abstraction, generalization, as well as specific-scientific methods. In particular, logical research methods were used for analysis and design of theoretical definitions of quality and efficiency of the current legislation. The systematic approach was used to analyze the main features of the structure of the current legislation, acting as one of the objects of legal processes, as well as to determine the parameters of the quality of legislation. The functional approach was used to analyze the function of current legislation and identify the key performance parameters. Mathematical methods were used to analyze and evaluate the effectiveness of the current legislation.Results: basing on the analysis of the current legislation, a number of its quality characteristics were revealed that enhance its effectiveness. These are, in particular, such parameters as the specificity of legal norms, their validity, account of the interests of participants of social relations regulated by the rule of law, freedom of the legal entities, the systemic character and stability of the current legislation. The key performance aspects of current legislation are highlighted, which include: effectiveness of the current legislation implementation, legal regulation of social relations, changes in the existing legislation, enforcement of legal norms.In the course of the study, it was shown that the quality of the current legislation largely determines its effectiveness.Scientific novelty: the concept of current legislation quality influence on its effectiveness was proposed, the key ways to improve the quality of legislation in Russia are outlined, as well as the ways to improve its effectiveness basing on analysis of legal regulation patterns and requirements imposed to it. In particular, the method of calculating the efficiency of legislative norms is proposed taking into account their quality. The key performance aspects of current legislation are highlighted, which include: effectiveness of the current legislation implementation, legal regulation of social relations, changes in the existing legislation, enforcement of legal norms. The survey also highlighted the main parameters influencing the quality of current legislation and their impact on its effectiveness. Practical significance: the main findings of the study, concerning the quality of current legislation, can be used as a basis for further research, as well as in law-making activities during the development and adoption of normative legal acts.

CIVIL LAW

96-106 415
Abstract
Objective: to research certain doctrinal issues of a third-party treaty, in particular, the moment when the right of claim of the third party arises, and to classify the third-party treaties.Methods: comparative-legal, historical-legal, formal-logical, analysis and synthesis.Results: historical-legal analysis has been made of the third-party treaties; conclusions are made on the essence of the third-party’s chose in action by treaties concluded in their favor. Classification of the third-party treaties is proposed, basing on the criteria of creditor’s substitution after the third-party’s claim. The possibility is grounded to impose the duties on the third party immediately after they express the desire to exercise their right by the treaty. The third-party treaty is distinguished from a treaty with changing parties.Scientific novelty: in comparative-legal aspect, the statement is proved that at the moment of signing of a third-party contract, the latter exercises only the secondary right, and the chose in action after its implementation. For the first time the classification of the third-party contracts is made by the criterion of the third-party substituting the creditor.Practical significance: the obtained results can be used in the law-making process, law-enforcement and scientific-theoretical activity.

CRIMINAL PROCEDURE

107-116 253
Abstract
Objective: to determine the essential, forensically significant features that characterize individuals who are engaged in cattle-stealing, to formulate recommendations for their detection.Methods: dialectical approach to social phenomena cognition was used. The theoretical and methodological bases are general provisions of the epistemology of science, general and legal psychology. Specific sociological research methods were used in the form of studying the criminal cases and surveying the respondents.Results: the paper identifies and systematizes the essential features characterizing the persons involved in cattle-stealing. Among them: a relatively stable relapse, committing group crimes, anti-social lifestyle, pronounced male type of crimes. This, in turn, allows to propose the general and specific versions, to predict the location of the offender and the stolen cattle.Scientific novelty: the article proposed the use of prognostic information to identify the likely cattle-stealer. The importance of the complete information about the manner, the place, the subject and the object of the crime is highlighted in order to formulate the typical investigative situation. Practical significance: the results obtained during research allow to increase the efficiency of planning and use of tactics when carrying out investigative actions directed on establishment of persons, specializing in cattle-stealing.

CRIMINAL LAW AND CRIMINOLOGY

117-125 186
Abstract
Objective: to reveal the risks and threats of security of the agrarian-industrial complex of the Baikal region as one of the elements of the regional system of North-East Asia.Methods: the dialectic approach to the cognition of social phenomena, which allows to analyze them in their historical development and functioning, in the context of the unity of objective and subjective factors, determined the choice of research methods: formal-logical, comparative-legal, and sociological.Results: by the example of the agrarian-industrial complex of the Baikal region, the risks and threats are viewed, which arise in the connection of Chinese citizens’ illegal agrarian production with the use of unlawful chemicals and pesticides, as well as the labor of illegal migrants. The authors conclude that in order to minimize the risks it is necessary to solve the problem of illegal land capture and to simplify their rent. That would allow to legalize illegal production, thus imposing the state control over food production. It is confirmed that our territories must be protected against uncontrolled mass migration from neighboring states. For this purpose, it is necessary to elaborate and implement measures providing the settling of the local population; to implement the migration policy providing the inflow of population from the central part of Russia.Scientific novelty: For the first time the article views the problems of security of the agrarian-industrial complex of the Baikal region and proposes some ways of their solution.Practical significance: the main provisions and conclusions of the article can be used in scientific and practical activity, when elaborating the measures for providing the security of the Baikal region and other Russian regions.
126-149 365
Abstract
Objective: to analyze the history, formation and development of restorative justice (mediation).Methods: the dialectic approach to the cognition of social phenomena, which allows to analyze them in their historical development and functioning, in the context of the unity of objective and subjective factors, determined the choice of research methods: formal-logical, comparative-legal, and sociological.Results: this article provides an overview of the main themes and controversies in the restorative justice discussions in Europe and the US with special attention to the role of victims and mediators. This discussion is contextualized through a short description of the history of both state-centered and community-oriented restorative systems in response to law violation. Indigenous and pre-state formation responses to crime have predominantly been of a restorative nature with the interest in healing the harm experienced by all participants with the aim of addressing social problems and strengthening the community as a whole.Scientific novelty: for the first time the article proves that at the outset mediation was established to help victims, it was intended to offer them a possibility for some resolution after experiences of victimization and opportunities for restitution of the damages. The meanwhile broad research results show clearly that this aim can be reached if this measure is practised professionally. Most victims find that they benefit from participation in mediation; they have a better chance to overcome the emotional and material damage caused by the crime than in traditional penal procedures. Practical significance: the main provisions and conclusions of the article can be used in scientific and educational activity when considering the issues of the essence, content and functioning of restorative justice (mediation).

INTERNATIONAL LAW

150-165 309
Abstract
Objective: to establish the legal regime and security of navigation in the Bering Strait.Methods: formal logical method, systemic method, comparative legal method, statistical method.Results: in the recent years, specialized publications contain numerous publications on the problems of development of Arctic shipping and the future intensification of the use of the Northern Sea Route. Whatever Arctic routes may be chosen by the skippers, the vessels will have to overcome the narrowness of the Bering Strait. If the existing estimates are reasonable, and the navigation of the North-West Sea Passage will increase, it is appropriate to ask whether the legal regime and security means are adapted to the possible increase of commercial shipping and military navigation. In this respect, the author formulates the legal measures aimed at ensuring security in the Bering Strait area with the account of growing cargo traffic. Scientific novelty: for the first time the article proves the necessity to include into the Bering Strait area the territories, bounded from the north by the east and west passages formed by the Diomede Islands and continental coasts of the Russian Federation and the United States and from the south - by the passages between the Cape of Chukotka and Cape Sevuokuk of St. Lawrence Island, Cape Sivuka and the mainland of Alaska, in order to protect the sea natural landscape and to ensure the maritime safety. The opinion is substantiated about the necessity to equip the marine passages, forming the waters of the Bering Strait, with a security system. The proposed legal regime of ensuring the safety of navigation in the Bering Strait, which includes the common navigation rules, establishing the areas of the vessel traffic separation, designation of areas of marine reserves and organizational-legal means for damping the dangerous situations.Practical significance: the findings and conclusions of the article can be used in scientific, educational and law enforcement practice in the con-sideration of the issue of the legal regime of the Bering Strait and the safety of navigation.
166-175 342
Abstract
Objective: to determine the degree of legitimacy of the imposed anti-Russian sanctions and retaliatory measures from the point of view of theWorld Trade Organization, to assess the prospects of a possible recourse to the dispute settlement body.Methods: this goal is achieved through both general and special scientific methods. The general scientific methods, used by the author, include induction, deduction, systematic method, synthesis and generalization. The author uses formal legal method for the interpretation of the law. In addition, the historical method is applied to the study of the history of economic sanctions.Results: it was concluded that formally the imposed sanctions conform to the right of the World Trade Organization, though the provision that stipulates them is very extensive. In addition, it is argued that Russia's response can be justified by the same provision as the anti-Russian sanctions, but at the same time, the Russian position is more advantageous due to a number of other provisions of the World Trade Organization. It is also concluded that the positive prospects of resolving the conflict in the framework of the dispute settlement body are unlikely.Scientific novelty: the article studies the law of the World Trade Organization and the national legislation of the parties to the conflict on the research question, analyzes a wide range of domestic and foreign scientific works, and proposes the author's definition of economic sanctions, which refers to the set of actions of restrictive nature in the framework of economic activities, used by one party (the subject of sanctions) against another (the target) and aimed at forced correction of their political course.Practical significance: the basic provisions of the article can be used in the research activities on the legality of anti-Russian economic sanctions and retaliatory measures within the right of the World Trade Organization. In addition, the work may be of interest to practitioners and students of international law.

TRANSLATED ARTICLES

176-199 259
Abstract
Objective: to identify the specific features of the essence, content and functioning of legal order in ancient Athens.Methods: the methodological basis of the research is the general dialectic method of cognition, which allows to explore the phenomena and processes in their historical development, interconnection and interdependence, as well as the general scientific, special and specific scientific methods of cognition, based on the former one.Results: democratic Athens was remarkably stable and prosperous, but the ancient city-state never developed extensively centralized rule of law institutions. Drawing on the "what-is-law" account of legal order elaborated by Hadfield and Weingast, the research shows that Athens' legal order relied on institutions that achieved common knowledge and incentive compatibility for enforcers in a largely decentralized system of coercion. Scientific novelty: for the first time it has been proved that Athens in the fourth century BC can serve as an example of building the rule of law in places where governments are weak, corrupt or nonexistent. Athens’ experience shows that one should focus on developing centralized institutions that are capable of coordinating decentralized enforcement mechanisms by (i) elaborating and publicizing decisions as common knowledge about wrongful behavior and its appropriate punishment; (ii) incentivizing decentralized punishment by fostering individual trust in the system; and (iii) linking individual participation to the survival of the political community.Practical significance: the main provisions and conclusions of the article can be used in scientific and educational activity when considering the issues of the essence, content and functioning of legal order.
200-229 194
Abstract
Objective: to analyze the history of formation and development of the executive actions, to elaborate unified requirements for their content.Methods: the dialectic approach to the cognition of social phenomena, which allows to analyze them in their historical development and function-ing, in the context of the unity of objective and subjective factors, determined the choice of research methods: formal-logical and comparative-legal.Results: the paper summarizes the existing scientific provisions concerning the absence of unified requirements for executive actions. The author analyzes the history of formation of the executive actions, their essential features, supervisory institutions and procedural mechanisms, which would promote the introduction of the legal standards in to the sphere of state administration.Scientific novelty: for the first time the article summarizes and analyzes the various scientific approaches to the requirements for executive actions; the necessity is proved to publish the internal rules of executive authorities as a public document.Practical significance: the conclusions of the article can be used in scientific, educational and law enforcement activity when considering the issues of executive actions.

DISCUSSIONS

230-236 264
Abstract
Objective: to identify and resolve conflicts between the norms of constitutional and criminal law which regulate the issue of legal liability of senior officials of the state.Methods: formal-logical, systematic, comparative-legal.Results: the article analyzes the embodiment of the principle of citizens’ equality under the law regarding the criminal responsibility of the President of the Russian Federation as one of the segments of the elite right; other criminal and legal conflicts are considered, associated with the creation of conditions for derogation from the principle of equality. Basing on this analysis, the means of overcoming collisions between the norms of constitutional and criminal law are formulated.Scientific novelty: in the article for the first time it has been shown that in the Russian criminal law there are exceptions to the principle of citizens’ equality under the law relating to the President of the Russian Federation; the conflicts are identified between the norms of constitutional and criminal law, regulating the issue of legal liability of senior officials of the state; ways of overcoming conflicts are suggested.Practical significance: the main provisions and conclusions of the article can be used in research and teaching in the consideration of issues of senior state officials’ criminal liability.


ISSN 2782-2923 (Print)