Scientific Journal of KubSAU

Polythematic online scientific journal
of Kuban State Agrarian University
ISSN 1990-4665
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139 kb

RESPONSIBILITY FOR ACQUISITION, STORAGE, TRANSPORTATION, PROCESSING FOR SALE OR SELLING OBVIOUSLY ILLEGALLY PREPARED WOOD

abstract 1131509115 issue 113 pp. 1640 – 1648 30.11.2015 ru 749
The article is devoted to the analysis of the legislation on criminal liability for acquisition, storage, transportation, processing for sale or it is sold obviously illegally prepared wood. It is investigated the main and qualifying signs of the corpus delicti provided by Art. 191.1 of the criminal code of Russian Federation, and features of legislative technology of creation of norm on responsibility for this crime. Some problems of qualification of the specified crime and its separation from adjacent structures of crimes are noted
183 kb

LEGAL RELATIONSHIP AND SUCCESSION TO THE INHERITANCE

abstract 1131509116 issue 113 pp. 1649 – 1667 30.11.2015 ru 1606
The authors of the article consider and analyze various points of view upon hereditary legal relationship and the nature of universal succession to the inheritance. The matter of hereditary legal relationship appears due to the death of the testator. Hereditary legal relationship arises on various bases, which grow from the facts: discovery of inheritance, acceptance of inheritance, refusal of inheritance, execution of the will, hereditary transmission and other legal relationship. The authors come to the conclusion that the change of the testator as subject in any of the legal relationship existed during his lifetime is impossible without the whole complex of the hereditary relations, and while some (the relations on protection of hereditary property, division, etc.) can be avoided in the course of transition of hereditary property, the others (discovery of inheritance, acceptance of inheritance) are necessary. In each legal relationship the successor perceives the whole legal situation of the testator, that is in each legal relationship the rights which are the object of the relation will be passed to him. The contents of hereditary legal relationship claim that inheritance represents the transition order protected by the law after the death of a citizen (testator) of the things owned by him on the right of a private property, the property, and also property rights and duties to one or several persons (successors) as universal succession. In the case of universal hereditary succession, the rights and duties are passed to the successor with one act, without a transfer by their first owner, and the passed rights and duties continue to be estimated on the identity of the first owner. Finally the authors come to the conclusion that universality designates transition of the rights as well as the testator’s duties (except those inseparably linked with the identity of the testator) as a whole when the successor can't selectively accept some rights and duties, having refused the others. Restriction of responsibility of the successor for the testator's debts with the size of hereditary volume does not change the essence of universal succession in this regard
120 kb

PROCEDURAL RELATIONS OF THE PROSECUTOR AND THE INVESTIGATOR ACCORDING TO CHARTER OF CRIMINAL PROCEEDINGS, 1864

abstract 1131509117 issue 113 pp. 1668 – 1676 30.11.2015 ru 867
This article "The Procedural relations of the Prosecutor and the investigator according to Charter of criminal proceedings 1864" is devoted to the investigation of some historical aspects of criminal and legal proceedings of the Prosecutor and the investigator according to Charter of criminal proceedings 1864. It discusses the Prosecutor’s and the investigator’s functions and competency in comparison with the current criminal procedure legislation, there is continuity of many of the provisions as well
104 kb

CRIMINAL PROCEEDINGS LANGUAGE: WHETHER IT REFLECTS THE NAME OF THE PRINCIPLE OR NOT?

abstract 1131509118 issue 113 pp. 1677 – 1682 30.11.2015 ru 797
The article explains that legal designation of criminal procedure principle of criminal proceedings language (in the article 18 of the code of criminal procedure it was called "Criminal proceedings language") cannot be recognized as sufficiently accurate. There are arguments in favor of changing the title of this article and labeling it as the in the law "Principle of the state criminal proceedings language" in this article
170 kb

THE CONTENTS OF BUILDING LEASEHOLD

abstract 1131509120 issue 113 pp. 1697 – 1714 30.11.2015 ru 443
The article is devoted to one of the most disputable categories of jurisprudence – to the contents of Building leasehold. In the article there has been presented the research of the legal nature of the institution of building leasehold (superficies). There have been traced the particulars of formation of the Roman legal (classical) model of building leasehold and the interpretation of this institution in foreign civil legislation. It has been noted that certain countries apply the classical Roman model of building leasehold while others use the model of "the shared property" of the land plot and of the piece of the estate built on this plot. There was conducted the analysis of the German model inheritance law of building leasehold on the basis of which there was made the conclusion about its independent nature and uniqueness. The historical and the comparative legal methods of the research have enabled to identify the essential differences of the employed models of building leasehold and the specific features of their application in the countries of roman-germanic law and in the Commonwealth of Independent States. There have been studied the approaches of the domestic civilized doctrine in terms of building leasehold and the specific features of its implementation in the draft version of the Civil Code of the Russian Federation. There has been affirmed that the draft version of the Civil Code of the Russian Federation admits the existence of the two models of the building leasehold: the design one and the classical one. There has been applied critical approach to the analysis of the design model of building leasehold in comparison with its Roman and Germanic legal constructions; there have been presented recommendations for its improvement. It is proposed to abandon the temporary ownership of the premises in the building constructed based on the Treaty on the law of the land. We proposed to replace it with a specific property right – "right of superficies". Its essence consists in the right of possession and use of facilities of a building constructed in accordance with the Treaty on the law of the land
328 kb

CHANGING OF THE CONSTITUTIONAL SYSTEM OF THE RUSSIAN EMPIRE IN CONNECTION WITH ABDICATION OF NICOLAS II

abstract 1121508023 issue 112 pp. 305 – 315 30.10.2015 ru 1084
This article is devoted to the analysis of the historical event which was signing the Manifesto of 15 March, 1917 about abdication by the Nicolas II. We have considered the place, the role and the importance of the Russian emperor abdication in the decline of the Russian state system and the influence on declining of morality of Russian society in connection with the ensuing historical events. Using of the foundations of the constitutional system allocated by modern science of constitutional law, the authors conducted a comparative analysis of changes in the constitutional system of the Russian Empire, related to abdication of Nicolas II. The authors deliberately equated the concept of «the constitutional system» and «the state system» for evidence of existing state. As a result of the analysis, the authors concluded that the Russian Empire was characterized by signs of the state system, rather than the constitutional system in its modern sense. The signs allocated by authors are important for application of experience of the events occurring in the state during the reign of Nicolas II for their use and practical implementation at the present stage of development of the state. The authors do not agree with the point of view prevailing in historical science, defining Nicolas II as emperor, who preserved the remains of statehood in a difficult time for the Russian Empire and saved society from destruction. On the contrary, the authors consider that inconsistent destructive actions of Nicolas II caused the collapse of Russian Empire
245 kb

LEGAL PRACTICE AS A SOURCE OF CIVIL LAW

abstract 1121508037 issue 112 pp. 492 – 503 30.10.2015 ru 2119
The article deals with the analysis of the role and place of court practice in the system of civil-law sources. The author introduces a debatable matter of the possibility to acknowledge the Russian law as case law; analyses significance of the judicial practice in the system of sources of the Russian law; outlines positions of experts on this matter and draws her own conclusions. The article provides a review of opinions of Russian law academics' and practitioners' on the topic of acknowledgement of judicial practice as a source of Russian law. The author debates and further concludes that assigning courts with the law-making function would benefit the efficiency of current legislation refinement. The author draws a conclusion that in the continental legal family court practice, which earlier wasn't considered a civil-law source, started gradually to turn into a secondary after civil legislation law source. The reason for it is because of more complicated social relations civil legislation failed to cope efficiently with the detailed legal regulation which is needed in property relations reglamentation. The author reveals the difference between the notions of "court practice" and "judicial precedent" and concludes that vesting courts with law making power can facilitate the improvement of the legislation in force, as well as the development of the civil law regulation. The final conclusion is that the litigation irrespective of the form of expression cannot be the independent source of law
366 kb

ABOUT REGULARITIES OF COOPERATION BETWEEN PRIVATE LEGAL AND PUBLIC LEGAL ORIGINS OF DISPOSITIVITY IN COURT JURISDICTIONAL PROCESS

abstract 1121508056 issue 112 pp. 749 – 760 30.10.2015 ru 1104
Level analysis of law enforcement cooperation between private legal and public legal origins was conducted in the aspect of dual nature of dispositivity in court jurisdictional process. On the basis of legislation’s investigation it is found that the apprehension of dispositivity on doctrinal level as the principle of judicial process, restricted by private legal aspect, doesn’t correspond to its legal dual-nature. It is showed that cohesive perception of dispositivity in court jurisdictional process is possible under the condition of its binary perception based on investigation of its private legal and public legal origins, providing their harmonic unanimity in the framework of dualistic approach. It the article it has been stated that even under the conditions of court process’ parties’ interests’ contradiction their warrants may be realized only under their cooperation with each other, which needs court’s contribution in the providing of their rights’ realization on equal terms. It is educed by researches that the cooperation of private legal and public legal origins of dispositivity is conducted on two (horizontal and vertical) levels of their law enforcement connections. Herewith the coordination of court process’ parties between each other occurs on horizontal level of cooperation, while the subordination of parties’ collaboration with the court occurs on the vertical level. The analysis of procedural legislation has educed general regularities of private legal and public legal origins of dispositivity in court jurisdictional process for different types of judicial proceedings. These regularities are: the realization of private legal origin, represented by the parties, with the relevancy stipulates the demand for public legal origin of dispositivity, represented by the court; the realization of public legal origin of dispositivity, represented by the court, with the relevancy stipulates the demand for private legal origin of dispositivity, represented by the parties of judicial process
243 kb

PROBLEMS CONCERNING RIGHTS APPLICATION EXISTING IN THE COUNTRIES WITH THE PLURALITY OF LEGAL SYSTEMS IN THE INTERNATIONAL PRIVATE LAW

abstract 1121508127 issue 112 pp. 1750 – 1761 30.10.2015 ru 930
The article is devoted to the investigation of the problems that may face law enforcement official in the case of regulation transboundary relations between private law subjects. In that case, the law of the country with the several legal systems is applied. It is considered the classification of the legal systems' plurality in the same state. The proposals concerning supplements to the Art. 1188 of the Civil Code are conducted in the following article. In particular, it is offered to put an addition to the Art. 1188. The addition would allow to apply the norm to the both: whether the domestic conflict norm sends to the right of the foreign state or the right of the internal collisions itself, i.e. - to extend its action to the situations, in the cases when the state has substantial collisions, hierarchical collisions, temporal collisions. In that way, it is possible to fix the rule in the Art. 1188 of the Civil Code of the Russian Federation which would maintain the case when the domestic conflict norm sends to the foreign right, and in this foreign right there are internal collisions, they have to be resolved, proceeding from rules of the state law to the conflict norm which was sent by the Russian norm
267 kb

SОURСЕS АND TЕNDЕNСIЕS ОF THЕ FАMILY АND MАRRIАGЕ DЕVЕLОPMЕNT – THE ЕVОLUTIОN ОF THЕ FАMILY АND MАRRIАGЕ RЕLАTIОNS

abstract 1121508130 issue 112 pp. 1788 – 1798 30.10.2015 ru 945
This artiсlе is dеvоtеd tо thе еvоlutiоn оf thе mаrriаgе institutе, tо thе sоurсеs аnd tеndеnсiеs оf fаmily dеvеlоpmеnt. Thе аnаlysis оf thе fаmily rеlаtiоns in аnсiеnt Bаbylоn ассоrding tо lаws оf Hаmmurаpi is prеsеntеd in thе аrtiсlе. In Hаmmurаpi соdе thе fаmily is prеsеntеd аs bаsis nоt оnly fоr есоnоmiс, mаtеriаl pоwеr оf thе stаtе, but аlsо аs its pоlitiсаl stаbility аnd sаfеty. Thе rights аnd dutiеs оf spоusеs аrеn't еquаl, but thеy аrе еquаlly, thоugh еvеryоnе in оwn wаy, pаrtiсipаtе in асhiеvеmеnt оf а mаin gоаl оf thе mаtrimоniаl uniоn – thе birth аnd еduсаtiоn оf сhildrеn. Institutе оf mаrriаgе is оnе оf thе mаin institutе оf thе fаmily lаw. It is соnsidеrеd in thе аrtiсlе thе оrdеr аnd соnditiоns оf gеtting mаrriеd, thе оbstасlеs fоr thе еngаgеmеnt аt vаriоus histоriсаl stаgеs. It is соnduсtеd thе lеgаl аnаlysis оf thе mаintеnаnсе оf thе mаrriаgе rеlаtiоns. Thе аttеntiоn is pаid tо thе quеstiоn оf thе pеrsоnаl аnd prоpеrty rеlаtiоns bеtwееn spоusеs, pаrеnts аnd сhildrеn; rеlаtiоnship tо thе mаrriаgе is соnsidеrеd аs а sосiаl аnd есоnоmiс dеаl аnd lаtеr аs а vоluntаry will оf а wоmаn аnd а mаn tо gеt mаrriеd. Rеligiоus mоdеls оf а fаmily аrе соnsidеrеd in thе аrtiсlе. hаngеs whiсh hаppеnеd during сulturаl histоriсаl dеvеlоpmеnt соnсеrning thе fоrms оf thе fаmily аnd mаrriаgе rеlаtiоns аrе аlsо соnсеrnеd thе mаintеnаnсе оf thеsе rеlаtiоns, in pаrtiсulаr, bеtwееn husbаnd аnd wifе. Thе сhаngеs hаd mоrе quаlitаtivе сhаrасtеr within thе еmеrgеnсе оf fаmily mоnоgаmy. Thе соnsidеrаtiоn оf thе еmеrgеnсе оf thеsе оr thоsе fоrms оf mаrriаgе prеsеnt thе intеrеst tо thе сulturаl and histоriсаl аnаlysis аnd thе rеаsоns оf сrisis in thе fаmiliеs nоwdаys
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