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Legal Science in China and Russia

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No 2 (2018)

ЮРИДИЧЕСКОЕ ОБРАЗОВАНИЕ В РОССИИ И КИТАЕ

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Государственное строительство и право

41-44 247
Abstract
In the spring of 2015, the law of the people’s Republic of China (the «law act») was substantially amended for the first time in 15 years since its adoption in 2000. Legislative law is Central to the existing socialist legal system with Chinese characteristics and is of great importance for the establishment of a unified Chinese legislative system. The revised legislative act clearly defines the exclusive legislative powers of the highest organs of state power, ensures the participation of the population in the legislative process, improves the system of argumentation and evaluation of legislation, expands the scope of local legislative bodies, introduces restrictions on issues related to the regulation of departmental and local authorities, improves the mechanism of Legislative review and supervision, and strengthens the rules governing the judicial interpretation of the highest judicial bodies. This change cannot solve all the contradictions and problems in China’s current legislative system, and it also determines that it is still open to the future.
45-48 295
Abstract
On the basis of studying of rather big array of regulations and other sources, the analysis of a legislative regulation of the administrative legal doctrine of modern Russia is carried out. Some results of modernization of fundamental provisions of the theory of administrative law in the context of the Constitution of the Russian Federation are summed up. On the basis of the analysis of the theory and practice of activity of public administration by the author the statuirovaniye of legal institute «state administration», the new perspective direction of development of science of administrative law is offered.
49-53 200
Abstract
As part of the general characteristics of the state of Russian legislation, factors that have a direct or indirect impact on its quality are considered. The following disadvantages are noted: lack of consistency; the lack of logical consistency in regulated public relations; lack of due pragmatism in upholding the interests of the state; not enough quality of individual regulations.

ИСТОРИЯ ГОСУДАРСТВА И ПРАВА

54-61 397
Abstract
The article examines the stages of the establishment of Soviet statehood in 1917 - 1918, studies the norms and institutions of the first constitutional acts of Soviet power that form the basis of democracy. At the same time, an attempt was made to identify, on this background, the construction of the Republic of Soviets the development of a mechanism for the transfer of power from the people to the state, and in the state to the Bolshevik party that monopolized the executive and legislative power in the country. The focus is on the activities of the II and III All-Russian Congresses of the Soviets, the Constitution of the RSFSR of 1918. The II Congress of Soviets only actually established a new form of government - the Republic of Soviets (before the Constituent Assembly was convened). During the dissolution of the Constituent Assembly in the country, a coup d’etat took place. The Third Congress of Soviets has already enshrined in law the Republic of Soviets - as a form of government, and a federation of national republics - as a form of government. The Constitution of the RSFSR of 1918 finally determined the organization of power in the center and in the provinces. The article examines not only the legislative formation, but also the activities of the central state bodies of the country (the Congress of Soviets, the All-Russian Central Executive Committee, the Council of People’s Commissars), local governments, and increased control over the Soviet system of party organs.

ФИНАНСОВОЕ И БАНКОВСКОЕ ПРАВО

62-75 343
Abstract
In the real work as the author historical prerequisites of emergence in the Russian Federation of science of the bank right which is characterized are investigated as the relatively young complex industry is right. In particular, in a historical retrospective the emergence reasons in the Russian legal science of these or those ideas which formed a basis for formation of the main theoretical views of representatives of science of the bank right in modern Russia are shown. Two groups of the reasons in pre-Soviet, Soviet and during the Post-Soviet period of development of Russia are investigated. These reasons, first, are connected with state of the economy of Russia during a certain historical period, and, secondly, with a condition of standard regulation of bank activity. According to it views of authors of the main problems of the bank right and of a possibility of recognition of the bank right the separate direction of legal science change. In work the review of theoretical concepts of founders of the bank right is made:G. F. Shershenevich, M. M. Agarkov, R. O. Halfina, I. S. Gurevicha, S. N. Landkof, M. L. Kogan, E. A. Fleyshits, Besides, views of modern researchers are analysed: L. G. Yefimova, O. M. Oleynik, L. A. Novoselova, D. G. Alekseeva, S. V. Pykhtin, O. N. Gorbunovoy, T. E. Christmas, A. G. Guznov, Ya.A. Geyvandov, N.Yu. Erpyleva, V. V. Vitryansky and others. All available points of view to the place of the bank right in the system of the industries of Russian law can be shared into three groups conditionally. According to opinion of some authors, the bank right is the industry of the legislation which unites the various regulations regulating bank activity by norms of civil, financial, administrative and criminal law. Other authors making most of researchers of this problem draw a conclusion that the bank right has all signs of the independent industry of the right, or carefully make a reservation that the bank right is gradually formed as the industry is right, however its final formation is not completed yet. The third group of researchers holds the opinion that the bank right is subsector of other industry of the right: enterprise right or financial right.
76-84 198
Abstract
In 2013, China modified its Company Law, and the modification created a new capital system, which is not exactly the same as legal capital system in the Germany or the authorized capital in the Anglo-American countries. Scholars in China debates with each other on the classification of the new capital among the three capital systems, in the traditional category, which are legal, authorized and compromise capital system. Some argue that the Chinese new capital is still legal capital, and some claim it’s compromise capital. However, that endeavor is useless and they take a wrong logic approach. They always change the traditional definition of each capital system in order to make the new capital of China being fit for one they argued. The new capital of China Company Law is a new one, and it does not belong to any type of existed capital system all over the world. Because the category of capital system is inductive consequence, which is just a description of the typical modern developed countries legislation and is not a deductive one based on a closed logical loop. So there is no logical reason we must classify the Chinese new capital into one of them. And more important academic dilemma is that such controversy has no theoretical and practical meanings. The category of the capital system is on the end branch of corporate theory, and no theory or institution bases on it. It is only a theoretical analyzing conclusion, without any reasoning or inference following. Furthermore, this controversy has no contribution on legal practice. The running, registering of company, even judging of the company dispute did, does, will never consider the category of capital system offered by the Company Law. Recognition of the legislation innovation is pragmatic and struggling on the theoretical problem is helpless.

УГОЛОВНОЕ ПРАВО

85-90 164
Abstract
Since the beginning of 2018, the special campaign against gang-related crimes has been carried out in depth throughout China, which has aroused tremendous social repercussions and produced very positive results. We believe that the campaign against gang-related crimes carried out in the form of “special struggle” has the advantages of making up for the normalization of governance, effectively meeting the security needs of the masses, and consolidating the effective leadership of the party and the government. However, this governance model has possible risks such as deviating the basic position of rule of law based on its own characteristics, which will directly affect its implementation effect. To avoid these risks, China must strictly limit the campaign against gang-related crimes to into the track governed by law, and use the legal thinking and law methods to provide a solid foundation for the victory of this campaign. Specifically, the following aspects should be achieved: first, we should avoid the politicization and expansion of the campaign. Party and government organs cannot intervene with the judicial authority for political reasons. Second, we must adhere to the principle of restraining criminal law, and we cannot arbitrarily expand the scope of punishment for gang-related crimes. Third, we should implement the criminal policy of combining punishment with leniency, and treat the members of gangs differently according to their roles, status and division of labor. Fourth, we should clearly determine the standard of crime, to avoid the judicial authorities from entering the specific “Case-type Judicial Activism” trap. Finally, we should emphasize procedural justice, give full play to the role of defense lawyers and guarantee the rights of criminal suspects.
91-101 175
Abstract
With the advent of the risk society and the abolition of the labor education system in China, many misdemeanors have been prescribed in Criminal Code, and the structure of crimes and penalty changed greatly. A series of negative consequences have been triggered. The most typical phenomenon is the behavior of drunk driving is prescribed in the criminal code as the crime. Although this new provision has achieved the unity of social and legal effect, it also brings a series of problems. Firstly, at the legislative level, so many new misdemeanors are prescribed in the criminal code, which will expand the range of crimes and shake the existing criminal law system. Secondly, at the judicial level, many judicial resources are occupied. Four sets of data are obtained by actual investigation. These data indicated that the number of misdemeanor in China has increased sharply every year, and a large amount ofj udicial resources have been squeezed, which seriously affects judicial efficiency. Thirdly, at the social level, once the offender is labeled as «criminal», it means that the offender will be difficult to return to the society, and the recidivism rate will be greatly added. On the other hand, the «crime label» will have a «chain negative effect» on the offender ’s family and family members. In order to effectively solve the negative consequences of the misdemeanor represented by the crime of drunk driving, the corresponding suggestions are proposed as follow: felony and misdemeanors should be punished differently, the balance of criminalization and non-criminalization should be realized, and the crimes should be controlled within the reasonable range. The system of extermination of the criminal record should be constructed in order to eliminate negative consequences caused and to achieve the good operation of law.

КРИМИНАЛИСТИКА

102-104 205
Abstract
Human activity, including criminal activity, is a complex and dynamic system. The desire to get what you want (the object of need) encourages a person to act, motivates his criminal activity. Guided by the idea of the result that he intends to achieve, the attacker chooses the method of committing the crime. Realizing the criminal plan, the subject acts in a specific situation, performing a variety of operations. Interacting with the environment, it makes changes to it-leaves traces. By studying these changes, the persons conducting the investigation receive information about the event of the crime, which allows to identify and expose the offender. That’s why the concept of trace is one of the most important in criminology. Taking into account the division of evidence into personal and material, the article summarizes and summarizes the basic rules for the detection, fixation, removal of material-fixed traces relevant to the criminal case.

УГОЛОВНЫЙ ПРОЦЕСС

105-110 173
Abstract
The German criminal penalty system has been though five phases, which are classical criminal theory, new classical criminal theory, new classical objective comprehensive criminal theory, die finale Handlungslehre criminal theory, purposive rational (fanctional) criminal theory. The philosophy current of thoughts are the positive philosophy, new philosophy of Kant, philosophy of existence, along with the new philosophy of Kant and the new philosophy of Hegel. Though the perspective of methodology, it is mainly the dispute between monism (ontology) and dualism (deontology). Dualism uphold the dichotomy between facts and values, real natural can not push to ought ,regulate exported only by the specification to derive the basic viewpoints of crime on the system; Monism considered exists included order, real and ought is seamless, the fact that the starting point can be exported to the interpretation of norms criminal system. It also confirms “the theory of the crime in the twentieth century, not a mere result of discussions within the Criminal Code, but has the development of philosophy and intellectual history background.”
111-115 140
Abstract
Wrongly-charged cases not only infringe the legitimate rights and interests of the parties, but also seriously damage the judicial credibility. This paper deeply analyzes the causes of wrongly-charged cases, which including the influence of traditional judicial concepts, the improper interference of public opinion, the use of illegal evidence, the lack of supervision and control mechanism, the deficiency of lawyer's defense function, the unscientific evaluation mechanism, and other factor. In order to ensure the realization of judicial justice and to improve the judicial credibility, and considering China’s useful experience in preventing wrongful-charged cases in recent years, we should further improve the prevention mechanism for wrongly-charged cases by speeding up the transformation of the judicial conc^;pt, insuring the independent handling of cases within the framework of the law, improving the evidence using mechanism, perfecting the supervision and control mechanism, strengthening the defense guarantee mechanism, and establishing a scientific evaluation mechanism and accountability mechanism.

ТРУДОВОЕ ПРАВО

116-119 150
Abstract
The article highlights the main issues of scientific and practical conference “Decent work, social protection and law in football (General, special and special)”, which was held at the University named after O. E. Kutafin (MSLA). At the conference, it was proposed to consider the sphere of football as a global innovation cluster of legal initiatives of decent work, social protection, risk prvention and dispute resolution in the preparation and conduct of mass sports events. The holding of world Championships and Olympiads is regulated at the international, state, social-partner and local ltvels. Experience, current norms and prospects of regulation of football (and sports in General) are focused on the generalization and implementation in different countries of research (monitoring) of legal innovations in the regulation of the activities of persons and entities involved in the preparation and conduct of significant international sports competitions. Taking into account the practice of international competitions, the legislation should be improved to establish decent working conditions for workers engaged in professional sports and high-performance sports, as well as in other various fields in which the organization and conduct of mass sports events is promoted. The article reflects a number of proposals for scientific research of legal measures taken during international sports events and proposed for further improvement of legal regulation in the field of labor and social security. Modern scientific approaches should contribute to the development and adoption of new acts of the International labour organization, which should contribute to the implementation and protection of human rights in the field of sports.

ЭКОЛОГИЧЕСКАЯ БЕЗОПАСНОСТЬ

120-127 182
Abstract
The article deals with the modern problems of improving public administration in the field of protection from emergency situations of natural and man-made. The author considers the problem of improving public administration in the context of reforming the unified state system of prevention and liquidation of emergency situations (RSChS). Stages of formation of a system in the 80-90th years of last century are allocated. It is shown that the resolution of the Central Committee of the CPSU and Council of ministers of the USSR of July 30, 1987 No. 886-213 to civil defense in addition assigned tasks of protection of the population against consequences of accidents, accidents and natural disasters and carrying out rescue and other urgent works, and in 1990, the resolution of Council of ministers of the USSR of December 15, 1990 No. 1282 created the State all-union s;ystem according to prevention and actions in emergency situations. Transformation of the purposes and tasks of RSChS in compliance with the Federal law «About Protection of the Population and Territories against Emergency tSitua-ions of Natural and Technogenic Character» is shown in article. The directions of improvement of an organizational and legal component of development of a s;ystem are proved.
128-132 161
Abstract
The rapid development of biotechnologies and the expansion of the range of areas where they are used, leads to the fact that the legislative framework does not keep pace with this progress. The adoption of normative legal acts at the level of the state is a positive thing, but still does not solve all the problems. The article describes the problems associated with environmental protection and the rights of citizens.

ГРАЖДАНСКОЕ ПРАВО

133-136 176
Abstract
The analysis of the concepts «financial transactions», «financial services», «financial products» and «financial instruments» by the right of Russia, China, Singapore and Japan is carried out. Are suggested about their branch characteristic. The conclusion is drawn on rele^vance of unification of a conceptual framework.

ЗЕМЕЛЬНОЕ ПРАВО

137-141 210
Abstract
The article discusses the grounds for registering families with three or more children for the free provision of land from state or municipal property for individual housing construction, personal subsidiary farming, gardening, gardening, country construction, established by the legislation of individual constituent entities of the Russian Federation, the procedure for granting of such land plots, the need for regulation at the federal level of the requirements for the formed list of land x plots in terms of the environmental component, provision of engineering and social infrastructure.

ГРАЖДАНСКИЙ ПРОЦЕСС

142-145 149
Abstract
The article is devoted to the analysis of the legal reform carried out in the country, which involves the improvement of the legal regime of the country, the improvement of legal acts, the strengthening of supervision of judicial activity, the implementation of the principle of justice. As an important aspect of the civil action, the regime for the return of civil cases to further investigation also requires reform.

СУДЕБНАЯ СИСТЕМА

146-148 209
Abstract
The article analyzes the existing scientific concepts of judicial law and formulates the prospects of its allocation as an independent direction of legal science. The author investigates various stages of the formulation of domestic scientific concepts of judicial law, since the XIX century, as well as the opinions of well-known scientists in this field. The article presents some positions of researchers on the structure and features of judicial law, as well as characterizes the nature and content of the legal category. In conclusion, the author proposes his own theoretical understanding of judicial law as an object of scientific research and vision of the further development of this phenomenon.

ПРАВА ЧЕЛОВЕКА

149-154 1751
Abstract
The article examines the domestic and foreign experience of food security. A comparative analysis between the Russian Federation and European countries, the United States and Canada. Studying the experience of legal support of the sphere of quality and safety of food products in the people’s Republic of China, the Law “on food hygiene” and the state standard “Quality and safety of agricultural products. The security requirements of Aqua products». It is proved that to solve these problems it is recommended to take measures to improve the legislation. First of all, to adopt the Federal law “on food security of the Russian Federation”, to finalize the Federal laws “on the quality and safety of food products” and “on the development of agriculture”. Taking into account the vital interests of the individual, society and the state in the field of food security and threats to these interests, these measures would be an important argument in favor of early improvement.

ПРОТИВОДЕЙСТВИЕ ПРЕСТУПНОСТИ

155-161 360
Abstract
Since its founding, China has witnessed four stages of criminal policy adjustment against organized crime: the policy of combining suppression with leniency, the policy of combing punishment with leniency, the policy of severe punishment, and the policy of combining leniency with severe punishment. However, the effect of this sternness-oriented strategy is not so obvious in the practice against organized crime. The provisions of U.N. Convention Against Transnational Organized Crime demonstrates a distinctive spirit of criminal policy: combing priority for human rights protection with a relative balance; promoting both crime fighting and prevention while attaching greater importance to prevention; establishing the concept of organized crime in a broad sense based on diversified characteristics of organized crimes worldwide. At present, there are certain problems in our policy concept against organized crime: unclear orientation of controlling crime and protecting human rights; attaching greater importance to crime fighting than prevention, and taking criminal penalty as the only means to deal with organized crime; adopting narrow criminal concept in legislation; stern but not strict, not fully criminalized. Therefore, the following criminal policy should be established: strengthening both social defense and human rights protection, attaching equal importance to crime fighting and prevention, and establishing the concept of organized crime in a broad sense and regarding it as a special crime type different from general joint crime.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Конкурентное право

162-168 150
Abstract
Concentration of undertakings is necessary and important for enterprise development. But it would produce or might have the effect of restricting competition. Therefore, countries and regions have regulated the concentration of undertakings through legislation, some of which is referential. Additional restrictive requirements for the concentration of undertakings are the important system for ex ante control. There are some problems in the “Provisions on the Additional Restrictive Requirements for the Concentration of Undertakings (for Trial Implementation)” in China. For example, the criteria for selection of assets to be stripped are not clear; the criteria for qualification of purchasers are too brief and abstract; the rules for stripping before delivery are lack of operability. Being competitive, commercial valuable and able to eliminate restriction of competition should be defined as the selection criteria for the assets to be stripped. The qualification of purchaser should be more specific in examining its independence from the concentration party and the willingness and ability to manage the assets to be stripped. The rules for stripping before delivery also need further improvement.

ОБРАЗОВАТЕЛЬНАЯ СРЕДА

169-174 153
Abstract
The scientific curriculum is the basis for talents training. We can adopt the model of minoring with law major for training compound legal professional. The core courses of law major, the basic courses of second major, the compound courses and practical courses are the indispensable elements for compound legal professional’s professional curriculum. The former two are the foundation for cultivating the compound talents, and the high quality compound courses are the key and embody the essence for training compound legal professional, and the practical courses are important medium for combining professional knowledge with a particular profession. We should pay more attention to the coordination of teaching objectives, contents, credits and order between these four kinds of courses. While paying more attention to the foundation of the legal compound talents, we can reduce the credits for compound talent properly. Minor should be based on the professional basis and take this as the limit at the same time. We should not increase the burden of compound talents too much. The integrity and applicability of the compound courses which are core courses for cultivating compound talent should be emphasized. In addition, as an important link in practice teaching, graduation thesis is an important breakthrough point for deepening the education of compound talents. It should be enriched connotation and strengthen the requirements of application, academic and innervation.


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ISSN 2587-9723 (Print)