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Russian Journal of Economics and Law

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Vol 11, No 4 (2017)

THE DIALECTICS OF ANTI-CORRUPTION

5-22 283
Abstract
Objective: to disclose the content of victimological anti-corruption consulting as a special type of professional activity aimed at anti-corruption enlightenment.Methods: the dialectic approach to cognition of social phenomena predetermined the following research methods: analysis, synthesis, comparison, formal-legal and comparative-legal methods.Results: the bases of legal regulation of victimological anti-corruption consulting at regional and municipal levels in some Russian Federation subjects are described. The scientific legal definition of “victimological anti-corruption consulting”, as one of the main forms of anti-corruption enlightenment, is developed and proposed. The most common types of victimo- logical anti-corruption consulting (formal, informal and doctrinal) are identified, described and explained. The basic forms and means of victimological anti-corruption consulting at public authorities, organizations and institutions are defined. The measures are proposed to improve the legal regulation of victimological anti-corruption consulting at regional, departmental, municipal and local levels.Scientific novelty: for the first time in the Russian criminological science, the term “victimological anti-corruption consulting” was introduced; its contents is explained, the legal bases of this kind of anti-corruption enlightenment are found and described. Practical significance: the main provisions and conclusions of the article can be used in scientific, educational, law-enforcement and legislative activity.
23-34 278
Abstract
Objective: to analyze the main practices of corruption counteraction in the modern society with a view of elaborating the key directions of such counteraction.Methods: dialectic method of cognition and general scientific methods based on it (analysis, synthesis, induction, deduction). Results: the work presents the basic models of corruption counteraction in the modern society. The phenomenon of corruption is frequently discussed and debated in a variety of contexts. Corruption is often difficult to identify, as it occurs in secret, away from the public eye and records. Moreover, anti-corruption measures repeatedly fail, in part because corruption is a multifaceted social phenomenon that penetrates horizontally and vertically through many areas of society. Despite a high degree of informality within many industries and the prevalence of corrupt practices, most anti-corruption efforts have so far involved reforming the formal legal rules. However, the discussion of formal rules and institutions cannot be neatly divorced from the examination of informal norms and vice versa . These two spheres of norms and rules operate side by side, each dependent on the other. Hence, any conversation about reform has to include discussions of both formal and informal rules and institutions and the intersection between the two. It is also crucial to examine the fora where informal rules and norms are practiced, enforced and replicated. Part of this examination revolves around so-called organizational or corporate culture. In order to start overcoming the formal laws vs. informal rules divide, government regulators have to work with industry professionals, labour groups and consumers when designing various industry and health and safety regulations. This partnership, if it were to be a true one, would improve the likelihood of compliance and reduce opportunities for corrupt practices. Ultimately, any meaningful anti-corruption reform will have to address not only the intertwined nature of formal and informal rules and norms prevalent in society, but also the common lack of anti-corruption ethos prevalent among all societal actors. Scientific novelty: main models of corruption counteraction are described on the basis of the analysis of the available literature sources; measures for optimal corruption counteraction are proposed.Practical significance: conclusions and provisions of the article can be used in scientific, law-making and law-enforcement activities, in the educational process of higher educational establishments.
35-46 298
Abstract
Objective: to show the capabilities of administrative-legal regulation for combating the causes and conditions determining corrupt behavior in the social sphere.Methods: dialectic approach to cognition of social phenomena, enabling 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: analysis, synthesis, comparison, systematic, formal-legal, comparative-legal methods.Results: the reasons and conditions determining the corruption in the social sphere were disclosed; this leads to the conclusion that corruption counteraction should be based on: 1) recognition of the social sphere as the key object of protection against corruption; 2) elaboration of special administrative-legal means of corruption counteraction in the social sphere. It is necessary to take into account the features of social relations in such sectors as education, healthcare, culture, physical culture and sports, etc. A number of foreign countries took the path of developing legislation on corruption counteraction taking into account the specifics of various social sphere segments functioning. This experience is quite interesting from the viewpoint of developing means of combating the causes and conditions that determine corruption in the social sphere. A number of the Russian Federation subjects also elaborate regional programs of combating corruption in education, healthcare, and culture. In our opinion, this experience should be transferred to the federal level of legal regulation. This will help to create a full-fledged system of corruption counteraction in the social sphere, taking into account different levels of its functioning. Scientific novelty: for the first time in administrative-legal science, the “law of torts aspect of corruption in the social sphere” issue is considered; the work reveals the causes and conditions that determine corruption in the social sphere, and gives their classification according to certain criteria. Basing on the study, the proposals are formulated, aimed at improving implementation of administrative and legal measures influencing the causes and conditions that determine corruption in the social sphere. Practical significance: the proposed legal and administrative means enable to form the administrative-legal regime aimed at minimizing the causes and conditions that determine corruption in the social sphere.

ECONOMICS AND NATIONAL ECONOMY MANAGEMENT

47-65 266
Abstract

Objective: to assess the external effects of the emergence of a new football club in European cities.Methods: statistical methods, regression analysis, double difference method, generalization and typologization methods. Results: the article examines the problems of ensuring competition in the football market in the context of club matches attendance. The scientific researches are analyzed, which cover the issues of economic theories application to the problems in the sports sphere. It is concluded that a different economic approach is required in the countries with a low level of private capital in football, since the main power there belongs not to the clubs but to the regional governments.The article also introduces the concept of external effects for the football market. To assess their impact on competition in football, the analysis of all European football Championships since the early 1990s till today was carried out. Basis on the performed analysis, the types of the cities representatives in the highest football divisions are defined: super-competitive leagues, leagues with centripetal competition, leagues with distributed competition, and non-competitive leagues.Basing on the assessment of clubs configuration changes in different leagues, a number of hypotheses were formulated about the impact of configuration changes on the attendance of matches. The assessment is conducted by the method of double difference of the external effects of the clubs configuration changes in the cities of France, Italy, Hungary and Greece. Scientific novelty: the concept of external effect in the economics of football is applied to the assessment of attendance (the external effect of the change in the number of clubs in a city was formulated and evaluated), a typology of leagues according to the degree of competitiveness was introduced, based on the analysis of data for the period of twenty years. Practical significance: the basic results can be used for making decisions on the financial support for clubs from the lower divisions to enhance competition within the region for the attention of fans.

66-81 341
Abstract

Objective: to analyze the possible structures of the oligopoly market distribution by the example of telecommunication industry in terms of the agents’ reflexive behavior.Methods: game theory, economic-mathematical modeling.Results: the article states that one of the first objects in the game theory is an oligopoly market. Based on the analysis of game theory studies, it was found that there is a need to achieve information equilibrium in reflexive games of three agents in the oligopoly market. To solve this problem, we analyzed all possible representations of the agents, leading to the set of games in the Russian telecommunications market for three agents: OJSC “MTS”, OJSC “Megafon” and OJSC “Vympelcom”. Three reflection grades were studied: 1) representations of the agent about other agents, 2) representations of the agent’s perception of other agents about it and 3) representations of the agent about what its competitors think about the first agent’s opinion about the other two. As a result, the general patterns were revealed of the expressions of conjectural variations in each case; it was proved that further detailing of the reflection is not needed.As a result of calculations, the models of informational equilibriums of the Russian telecommunication market were constructed; for that, the averaged values of the demand and cost functions parameters functions of cellular communication operators were taken. It was also revealed that in 2015 the actual telecommunication market in the Russian Federation qualitatively, i.e. by the ratio of market shares, was close to equilibrium on condition of first rank reflexive behavior for the case when the market leader, OJSC “MTS”, represents its counterparties - OJSC “Megafon” and OJSC “Vympelcom” - as the driven agents. Scientific novelty: the analytical expressions for the information equilibrium parameters (issues and profits of the agents, aggregate output and prices) are obtained in the oligopoly market with a linear demand function, linear cost functions of agents with equal marginal and fixed costs, for arbitrary reflection grades.Practical significance: the obtained set of informational equilibriums may be used to compare it to the actual equilibriums of the Russian telecommunications market to assess the reflection grades of its agents.

82-95 278
Abstract
Objective: to reveal the points of contact and dependence between a territorial-industrial cluster and the sustainable development of the region where the cluster is located.Methods: multi-dimensional comparative analysis, method of Euclidian distances. Results: the work reveals the issues of influence of territorial-industrial clusters on the sustainable development of a region. The factors of sustainable development are studied, as well as the influence of territorial-industrial clusters on them. The analysis of scientific research of the issue of regional development showed that the main trend of scientific research is the study of ecological, managerial and methodological aspects. The authors conclude that the interdependence between clusters and the social-economic development of a region is understudied.To achieve the research goals, the regions of the Volga Federal District were estimated by economic, social and ecological indicators. The calculations were made under methodology by T.V. Uskova, modified and supplemented by the authors. Basing on the calculation of the integral index of sustainability of VFD regions, it was found that all regions within the studied period were in the zone of development; the most stable are the Republics of Tatarstan and Bashkortostan and Perm krai. Also, the integral indicators were compared to the number of clusters in the regions; it was found that the highest sustainability of the indicators are shown by the regions where the clusters are located. A time lag of one year was noticed between a new cluster appearance and the integral index growth.Scientific novelty: for the first time, basing on the element composition of the sustainable development of a region, the role of a territorial-industrial cluster is determined for each factor; the methodology of estimating the sustainable development of a region is improved; the indicators of the sustainable development of a region are compared with the presence of territorial-industrial cluster in these regions.Practical significance: the main provisions and conclusions of the article may be used in scientific and educational activity when considering the issues of clusters and sustainable development of regions.
96-114 340
Abstract

Objective: to search for and substantiate the single criterion of economic efficiency of state purchases in Russia.Methods: econometric modelling, benchmarking.Results: the article identifies the need to assess the effectiveness of the state purchases system in Russia under the conditions of its reforming. The studies are analyzed, which are devoted to the approaches to estimating the state purchases efficiency and the problems of ensuring the transparency of purchasing procedures. Special attention is paid to the analysis of studying the benchmarking of state purchases, which helped to identify the key areas of benchmarking, focusing on certain performance indicators. To implement the research objective, the purchases effectiveness was analyzed from the viewpoint of the savings achieved. For this, we studied the evaluation of savings in purchases, as reflected in various sources of information, including the data of the state statistics authorities, audit and monitoring of purchases. As a result of the data systematization and generalization, we identified a functional relationship between savings in purchases and the average number of participants in the purchasing process. A similar conclusion was formulated according to the analysis of indicators of the national rating of purchases transparency. There was also built a functional dependency of the discount on increasing the number of purchasing participants up to five, for different ways of determining the provider. A slowdown of the discount to the initial price was revealed as the number of eligible applications grows. Based on the regional rating of the public purchases “Purchases 360”, a factor analysis of differences of the Russian constituent entities was carried out, in terms of savings. The analysis confirmed the hypothesis about the existence of a relationship between savings and the level of competition in purchases. The study also identified other factors that determine the level of savings under competitive procedures: the indicators of planning quality and of institutional conflict (violations of antimonopoly legislation). Scientific novelty: on the basis of several alternative data sources, the study formulated and confirmed the hypothesis about the dependency of the average savings from the competitive purchasing procedures in a region on the average number of admitted applications in one procedure. The method is proposed of evaluating the performance of a federal contract system in the Russian regions on the basis of the potential economic losses in the region in the framework of public purchases. A specific feature and scientific novelty of the work is the use of benchmarking tools for each of the 82 Russian regions included in the sample.Practical significance: the method is proposed of evaluating the performance of a federal contract system in the Russian regions. The methodology is based on an indicator of the amount of potential economic losses in a region in the sphere of state purchases made in the framework of Federal Law No. 44-FZ.

115-124 260
Abstract
Objective: to eliminate legal uncertainty in interpretation and implementation of a legal norm (para. 4 subclause 2.2. clause1 Art. 164 of the Taxation Code of the Russian Federation); to elaborate proposals for improving the Russian legislation on taxes and duties, which is essential for elimination of the said problems.Methods: the research is based on a set of general scientific and specific methods of cognition used in the science of Financial Law: dialectic method, formal-dogmatic method, methods of analysis, analogy, induction and synthesis, historical retrospective, formalization, and logical method.Results: the article presents theoretical-legal analysis of the consequences of ambiguous interpretation of a legal norm (para. 4 subclause 2.2. clause 1 Art. 164 of the Taxation Code of the Russian Federation) in relation to organizations rendering services in the sphere of oil and oil products transportation and transshipment. It is stated that one of the essential problems in the practice of value added tax implementation is the use of zero tax rate. When the norms of the above Article are interpreted, it causes problems in organizations engaged in oil and oil products transportation and transshipment, due to the differences in positions of the Russian Ministry of Finance and the taxation authorities about the location of works to be referred to transshipment. Another problem is narrow comprehension of organizations engaged in oil transportation, as well as uncertainty of norms related to the terminology of oil transportation, transshipment and reloading. All the above inaccuracies and ambiguities in legislation lead to problems in organizations engaged in oil transportation, as is shown by the example of “Marine Port Service” Close Corporation. The author also presents the results of analysis of judicial practice in the sphere of interpreting para. 4 subclause 2.2. clause 1 Art. 164 of the Taxation Code of the Russian Federation. The possible consequences of the revealed contradiction are determined for the oil markets and for the budget incomes formation. The carried out research results in proposals for improving the taxation of tax-paying organizations rendering services in the sphere of oil and oil products transportation, reloading and/or transshipment.Scientific novelty: the legal uncertainty in interpretation and implementation of a legal norm (para. 4 subclause 2.2. clause 1Art. 164 of the Taxation Code of the Russian Federation) was revealed; proposals are formulated for interpreting the notion of reloading for the purposes of taxation.Practical significance: the conclusions formulate by the authors can be used in practice for making decisions about elaborating a draft of a normative legal act amending para. 4 subclause 2.2. clause 1 Art. 164 of the Taxation Code of the Russian Federation.

THEORY AND HISTORY OF LAW AND STATE

125-135 292
Abstract
Objective: to identify the option for eliminating the lacuna in law, identified in judicial practice, which consists in establishing the grounds for declaring a normative legal act invalid (Chapter 21 of the Administrative-Procedural Code of the Russian Federation).Methods: universal dialectic-materialistic, formal-legal, analysis and synthesis of reasoning in judicial cases related to abstract control of norms.Results: the author formulates the following proposals: 1) to introduce amendments to Article 213 of the Administrative- Procedural Code of the Russian Federation regarding the need to establish, in a judicial procedure on administrative cases on disputing a normative legal act, the compliance of the disputed normative legal act to the requirements of the formal certainty of legal norms, excluding their ambiguous interpretation in the law enforcement practice, as well as their compliance to the principles of law and the objectives of the legal regulation established by law;2) to supplement the Administrative-Procedural Code of the Russian Federation with Article 215.1 establishing that the disputed normative legal act, which violates the rights, freedoms and legitimate interests of the administrative plaintiff or persons in whose interests an administrative claim is filed, must be adjudged invalid in whole or in part in the following cases: a) the revealed violations of the requirements of normative-legal acts defining the powers of an authority, organization or official to adopt normative legal acts; it stipulates the shape and form in which a body, organization or official is entitled to adopt normative legal acts; it stipulates the procedure for adopting the disputed normative legal acts; it contains the rules for introducing regulations into effect, including the manner of publication, state registration (if state registration of these acts is stipulated by the Russian legislation) and its entry into force; b) non-compliance of the disputed normative legal act or its part to the regulatory legal acts of greater legal force; c) inconsistency of the disputed normative legal act with the requirements of the formal certainty of legal norms, excluding their ambiguous interpretation in law enforcement practice; d) non-compliance of the disputed normative legal act to the principles of law and the objectives of legal regulation established by law; 3) to introduce changes in Art. 209 of the Russian Administrative-Procedural Code regarding the administrative complaint disputing a normative legal act and recognizing a normative legal act invalid.Scientific novelty: a lacuna in law is identified (Chapter 21 of the Russian Administrative-Procedural Code); to eliminate the lacuna, reasoning of court decisions is systematized on the recognition of normative legal acts invalid due to defects in normative legal acts, which literally do not constitute grounds for recognizing them invalid.Practical significance: the conclusions and provisions of the article can be used in scientific, legislative and law-enforcement activities, in the educational process of educational institutions of higher education.

CIVIL LAW

136-145 298
Abstract
Objective: to study the concept and essence of the institute of guilt in private law, its formation and development, as well as the allocation of stages in the formation of the doctrine of guilt as a precondition of civil liability.Methods: dialectic approach to cognition of social phenomena, enabling 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: historical-legal, comparative-legal, systemic, systemic-structural, and formal-legal. Results: the article shows different approaches to the definition of guilt as a condition of civil liability; three periods of the “guilt” concept development are allocated: the Roman period (Roman private law), the pre-revolutionary period (Russian pre-revolutionary law) and the Soviet period (Soviet law). It is proved that the Roman law, by means of cases, managed to develop the basic conceptual apparatus of the institute of private legal liability, as well as principles of determining guilt as a fundamental criterion for such liability. It is proved that the subsequent development of civilisltic science and civil legislation in Russia testifies to the borrowing of the Roman law general principles regarding civil liability, and guilt as its condition. It is shown that in the Soviet period, the civil-legal concept of guilt evolved under the negative attitude to many provisions of the science of private law, developed in the pre-revolutionary period. Analysis of Chapter 25 of the Civil Code of the Russian Federation and, first and foremost, of Article 401 of the Civil Code of the Russian Federation, indicates that both the current state of the civil guilt doctrine and the legal definition of this category are based on the conceptual apparatus developed during many centuries. Scientific novelty: for the first time in the article, basing on the use of complex scientific methods, the concept and essence of the institute of guilt in private law are analyzed; three stages of the guilt doctrine formation are allocated and formed, as a precondition of civil-legal liability.Practical significance: the main provisions and conclusions of the article can be used in research and teaching when addressing the issues of the nature and formation of the “guilt” concept as a precondition of civil-legal liability.

TRANSLATED ARTICLES

146-169 298
Abstract

Objective: to elaborate the conceptual theoretical-legal provisions and scientific recommendations for the substantiating the inefficiency of mandated disclosure.Methods: general dialectic method of cognition, as well as the general scientific and specific legal methods of research, based on it.Results: the article explores the spectacular prevalence, and failure, of the single most common technique for protecting personal autonomy in modern society: mandated disclosure. The article has four parts: (1) a comprehensive summary of the recurring use of mandated disclosures, in many forms and circumstances, in the areas of consumer and borrower protection, patient informed consent, contract formation, and constitutional rights; (2) a survey of the empirical literature documenting the failure of the mandated disclosure regime in informing people and in improving their decisions; (3) an account of the multitude of reasons mandated disclosures fail, focusing on the political dynamics underlying the enactments of these mandates, the incentives of disclosers to carry them out, and, most importantly, on the ability of disclosees to use them; and (4) an argument that mandated disclosure not only fails to achieve its stated goal but also leads to unintended consequences that often harm the very people it intends to serve.Scientific novelty: the article elaborates and introduces into academic sphere the substantiation of the efficiency of mandated disclosure, proves the failure of the mandated disclosure regime in informing people and in improving their decisions, and reveals the unintended consequences that often harm the very people it intends to serve.Practical significance: the provisions ad conclusions of the article can be used in scientific, law-making and law-enforcement activities, and in the educational process of institutions of higher education.

170-225 423
Abstract
Objective: to consider and study the legal procedures aimed at deterring bureaucratic oppression.Methods: dialectic approach to cognition of social phenomena, enabling 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: analysis, synthesis, comparison, systematic, formal-legal, comparative-legal methods.Results: the auricle views legal procedures aimed at deterring bureaucratic oppression. The author comes to the conclusion that these legal procedures are one of the multiple mechanisms which allow regulation of interaction between a state and private persons. As the problem extends to an extremely broad range of interactions, the paper analyzes and reveals the features of only certain types of potentially oppressing interactions between a state and citizens: the treatment of business enterprises by regulatory agencies; the treatment of government grantees by funding agencies; the treatment of individuals by protective services; and the treatment of individuals in government institutions.Scientific novelty: Part I of the Article discusses the sources of bureaucratic oppression and identifies four such sources: status differences, stranger relations, institutional pathologies, and divergent incentives. Part II explores four solutions to the problem of bureaucratic oppression that have been proposed and in some cases implemented. The first two - the judicial solution of due process and the legislative solution of ombudspersons - involve actors external to the administrative system. The second two - the management theory solution of client-centered administration and the microeconomic solution of market simulating mechanisms - are internal to that system. Because of the limitations of these various solutions, Part III proposes an additional solution, described as a collaborative monitor. This monitor would be an agency of the legislature that could bring the issue of oppressiveness to an administrative agency's attention and then work collaboratively with that agency to resolve or ameliorate the problem.Practical significance: the main provisions and conclusions of the article can be used in scientific, educational, law-making and law-enforcement activities.

DISCUSSIONS

226-241 552
Abstract
Objective: to identify the key risks of the digital economy development.Methods: abstract-logical and dialectical methods.Results: a modern individual cannot imagine their life without digital devices which facilitate their functioning and enable them to be included into the virtual space. The role of digital economy in the changes in all spheres of human life is analyzed in the article. With the growing role of the digital economy, the approaches to business models formation are changing, as well as the role of digital assets. This also leads to the transformation of human behavior, the new risks of the digital economy accelerated development. In this regard, the article characterizes an individual as a digital nomad, defines the features of their behavior in the socio-economic environment, and highlights the main risks that arise in connection with digital nomadism. It is determined that one of the most characteristic features of a modern person is hyper-mobility, e-parkourism. In addition, the paper describes the problems of anonymity in virtual space and the emergence of systems that provide anonymity of the individual, as well as the risks arising in connection with that. The problem of lack of culture and value systems in the virtual space is highlighted, as well the problem of developing contradictions in information, leading to the alienation of people from the real world. It was determined that the informatization of economy, on the one hand, leads to faster business processes, reduced transaction costs, saving of variable costs due to robotization of production, and on the other hand, it leads to the transformation of competition, growth of tension in society in connection with the job cuts. Another problem is personal and national security, associated with the development of social networks, the developers of which are other countries, and also with the emergence of mechanisms of influence on mass consciousness. Scientific novelty: it is shown that the risks posed by intensive development of the digital economy are associated mainly with the socio-cultural factors and a new form of identity - digital nomadism. The mechanisms are proposed, by which it is possible to overcome some of the identified risks.Practical significance: dialectical understanding of the digital nomadism will provide a basis for further research, as well as reduce the level of uncertainty for economic actors operating under the described conditions.


ISSN 2782-2923 (Print)