Basics of Russian Law. Textbook 9785392217649

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MOSCOW STATE INSTITUTE OF INTERNATIONAL RELATIONS (UNIVERSITY) OF THE MINISTRY OF FOREIGN AFFAIRS OF THE RUSSIAN FEDERATION

A. V. Malko, V. V. Subochev, G. V. Fedorov

BASICS OF RUSSIAN LAW TEXTBOOK

Москва 2017

УДК 811.111:36(075) ББК 81.2Англ B29

Электронные версии книг на сайте www.prospekt.org

About the Authors: A. V. Malko – Doctor of Juridical Science, Professor, Director of the Saratov Branch of the Institute of State and Law of the Russian Academy of Sciences, Honoured Science Worker of the Russian Federation; V. V. Subochev – Doctor of Juridical Science, Professor of Department of Legal Support of Management Activities, MGIMO-University; G. V. Fedorov – Master of Laws, Associate at the Moscow office of Hogan Lovells, an international law firm (Infrastructure, Energy, Resources and Projects practice). Peer reviewers: V. B. Isakov – Doctor of Juridical Science, Professor, Honoured Lawyer of the Russian Federation; N. I. Matusov – Doctor of Juridical Science, Professor, Honoured Science Worker of the Russian Federation; Y. I. Vaslavskiy – Ph.D. in Political Science, Associate Professor of Political Theory.

Malko A. V., Subochev V. V., Fedorov G. V. B29

Basics of Russian Law. Textbook. – Moscow : Prospekt, 2017. – 240 p. ISBN 978-5-392-21764-9 This textbook presents in accessible form information necessary for comprehensive understanding of the basics of Russian law: theory of state and law, constitutional, civil, labour, administrative and criminal law. It is based on the Russian legislation in force and the market practice, combining theoretical material, classical and modern doctrinal works, as well as the basics of the current legislation. The above will allow readers to obtain practically-oriented knowledge. This textbook is intended for lawstudents, legalscholars, legal practitioners, as well as everyone who is interested in the basics of Russian law.

УДК 811.111:36(075) ББК 81.2Англ

The image on the cover megastocker /Shutterstock.com

ISBN 978-5-392-21764-9

© Малько А. В., Субочев В. В., Федоров Г. В., 2016 © ООО «Проспект», 2016

PREFACE This is one of the first Russian textbooks which provides in a concentrated form the most important information on the basics of Russian law and which is primarily intended for JD, LLB, LLM or PhD students of foreign universities who study Russian legal system or are interested in it. Besides, this book may be useful for academics who teach both legal and non-legal disciplines, as well as for everyone who wishes to find out the most important information on the basic branches of Russian law in accessible form or organise their existing knowledge into a well-defined system. The purpose of this book is to give adequate understanding of the fundamentals of state and law under the Russian doctrine, and to briefly characterise the main branches of Russian law and their specifics, taking into account the latest legislative reforms. This textbook combines theoretical material, classical and modern doctrinal works, as well as the basic aspects of the current Russian laws. This will allow readers to obtain practically-oriented knowledge. With due account for the latest changes of Russian legislation, the authors outline the basics of the theory of state and law, constitutional, civil, labour, administrative and criminal law to the extent required to understand theoretical issues and practical aspects of Russian legal system, use legal concepts and categories correctly, analyse legal acts and legal relations arising on their basis, take legitimate decisions and commit lawful acts.

Part 1 BASICS OF THE THEORY OF STATE AND LAW Chapter 1. ORIGINS OF STATE AND LAW 1.1. Primary Causes and Forms of the Birth of State There are many views and theories concerning the origins of state, since state is the main political structure of society which emerges at a certain stage of its development and which is the principal institute of power in any civilised society. Different sciences provide a rich factual background on the causes and forms of state origin. Such facts are rather hard to classify or unite in one uniform doctrine of the origin of state. Therefore there are several theories of the origins of state: theological (by will of God), contractual (by will of mind), psychological (due to the humans, psychology), organic (biological factors), materialistic (societal and economic factors), theory of violence (politico-military factors), etc. Such a variety of opinions exists since the process of state origination was affected by environmental, psychological, historical, ethnic, moral, religious and other factors. Such factors, apart from manifesting in different ways in different regions of the world, were differently interpreted by various researches and philosophers who lived in different historical periods. The dissolution of the primitive communal society with its clan system and the emergence of state authority occurred differently in different regions and under varying conditions: such processes had their own peculiarities in different societies. The formation of state is a long process and happened in different ways and within different time periods for different nations. In the East, (Egypt, Babylon, China, India, etc.) “Asiatic mode of production” was most common. Such a form of state origination is linked to the necessity to conduct wide-scale works in such regions (construction and main-

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tenance of irrigation facilities, different agricultural works, irrigated cropping, etc.). Therefore the most firm structures in such societies were clan systems, village communities, collective property and other institutes which were the most suitable for such works. The first states of the Ancient East were pre-class states: they simultaneously exploited the village communities and managed them, i.e. organised the production. Another form of state origination was present in Athens and Rome where the slave-owning states emerged as a result of the advent of private property and the division of society into classes. Athens exemplifies the classical form of state origination since the state there emerged as a direct result of clashes between classes — the internal clashes within the communal society. Two revolutions within one century which resulted in Solons, (594 BC) and Cleisthenes,s reforms (509 BC), lead to the final dismantlement of the old communal system and the old form of government, to the territorial division of the population and the creation of political authority: legislative and executive bodies, active military forces, police and customs, prisons and other state institutions. Ancient Roman state origination has been sped up by the strife between the plebs and the Roman nobility — patricians. The plebs were free men from the ranks of the conquered peoples who did not have Roman lineage and were not considered a part of the Roman people. If the plebs possessed land property, they were obliged to pay taxes and serve in the military, but they were deprived of the political rights and could not enjoy the rights to Roman land plots. The political movement of the plebs for the patrician privileges may be seen as the fight against the ancient societal hierarchy based on blood ties. The plebs, victory eliminated the old structures and created a state based on territorial division and the division of wealth. This supports the theory that states may emerge as a result of disintegration of tribal relations and the lessening of the importance of blood ties. The advent of Ancient Germanic states was largely caused by the conquest of large territories (namely, the Western part of the Roman Empire) by the German tribes. These tribes which at that time had a primitive tribal societal structure could not use it to govern Roman provinces while it was not suitable for managing such large territories. Enforcement mechanisms and coercion machinery became necessary. The supreme warlord became the monarch; the common property became the royal property; tribal authorities quickly evolved into state authorities1. In any case, the process of state origination is an objective and natural phenomenon in the course of societal development and transformation which may be explained by various economic, political, social, moral, religious, environmental and other reasons. 1 See: Matusov N.I., Malko A. V. The theory of state and law. Textbook. 4th Edition. M.: “Delo” Publishing House. RANEPA, 2011. P. 35.

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1.2. Principal Theories of State Origin Various and rather numerous theories of state origin make some definite manner of statehood formation its cornerstone. One believes that neither theory is able to list an exhaustive summary of factors affected the formation of the state. The best known theories include the following: 1. Theological theory. It was widespread in the works of Catholic Church ideologists of the Middle Ages (Thomas Aquinas, Saint Augustine), and it goes on evolving in modern Islamic and Catholic (Jacques Maritain) advocates’ works. According to the advocates of this doctrine, the state is a product of divine will, whereby state authority is eternal and unyielding, and depends primarily on religious organisations and characters. Therefore, each and every person must obey the sovereign unconditionally. The existing socioeconomic and legal inequality is predetermined by the abovementioned God’s will, and one must come to terms therewith. No resistance must be furnished against God’s power holder on Earth. Consequently, any disobedience against state authority may be considered disobedience against the Lord. Any secular authority is derivative from that of the Church and religious organisations. The ideologists of the theological doctrine lay an odor of sanctity to the state and rulers (the latter being representatives and spokesmen of divine will), thereby raising their prestige, and encouraging social order, harmony, and spirituality. Greater focus is placed on the “commissioners” between God and state authority — the church and religious organisations. 2. Patriarchal theory (advocates include Aristotle, Robert Filmer, Nikolay Mikhaylovskiy). This theory’s proponents consider the fact that people are social creatures craving communication and developing at their best in harmonic families. As the family evolves and grows, these processes ultimately are followed by formation of state. Therefore, the state is a product of extension of family. Consequently, the sovereign power is a product of father’s unlimited power in the family. Due to the fact that patriarchal power is godsent, subjects are to obey the sovereign. No resistance is allowed. Monarch’s patriarchal care can provide necessary living conditions. Like the father of the family, the monarch of the state is neither elected, nor appointed, nor deposed by his subjects, since they are his children. 3. Contractual theory (advocates include Benedict Spinoza, Thomas Hobbes, John Locke, Jean-Jacques Rousseau, Hugo Grotius, Paul Holbach, Alexander Radischev). According to these philosophers, the state emerged as a product of conscious activities, as a result of a contract made by and between people who previously were in a “natural”, disconnected, unorganised, primitive condition. The state is a rational union of people based on an agreement whereby they surrender some part of their freedom and authority to the state.

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Isolated individuals turn into a united nation inhabiting a particular territory. As a result, the rulers and the society are left with a series of mutual rights and obligations and liability for non-performance. Thus, the state is vested with exclusive rights to adopt laws, levy taxes, punish criminals, etc., although it must at the same time protect its territory, citizens’ rights, their property, etc. The citizens must abide by the laws, pay taxes, but they are also entitled to protection of their liberty and property. Should the rulers abuse their power, the citizens may rescind the contract through deposition. 4. Patrimonial theory (the most eminent representative is Ludwig von Galler). According to this theory, the state originated from the landlord's right to his land (patrimonium), and it spread onto people who lived on the land. Therefore, the rulers reign over a territory due to their original right to property. In this situation, the people are represented as tenants to the land, and officials as managers. 5. Theory of violence. This theory took full shape in the nineteenth century in the works of Eugen Duhring, Ludwig Gumplowicz, Karl Kautsky, and others. They did not see the origins of the statehood in economic relations, divine intervention, or social contract, but saw it in militarist political factors — violence and exploitation of one nation by another. Management of conquered territories required enforcement mechanism, which was the state. Thus, the state is an organisation for governance of one nation over another. Violence and subordination is the foundation of formation of economic dominance. As a result of wars, tribes reformed into castes, estates, and classes. The conquerors enslaved the conquered. Consequently, the state is a force inflicted from the outside, rather than a product of inner social development. K. Kautsky reasoned that, as the society evolves, the state turns into a means of reaching universal harmony, a protective body which aims to provide common welfare for the weak as well as for the strong. This theory was embraced by the Nazi Germany as its official ideology. 6. Organic theory. It was widespread in the second half of the nineteenth century in the works of Herbert Spencer, René Worms, August Kont, Albert Schaeffle, etc. This doctrine considers the state an organism, the parts whereof interact like ones of a living organism. Thus, the state is a product of social evolution, which is a form of biological evolution. Like a living organism, the state has a brain (its rulers) and a means of enforcing its decisions (its subjects). Just as the fittest biological organisms survive during natural selection, separate states emerge during wars (natural selection, as well), governments are formed, management structure is worked out. Thus, the state is virtually equalised to a biological organism. 7. Materialistic (Marxist) theory (Karl Marx, Friedrich Engels, Vladimir Lenin). This doctrine dominated for decades in many countries, including

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Russia, the majority of Eastern European countries, as well as a number of Western European countries. According to this theory, the state emerged due to socioeconomic factors. Three types of division of labour played a significant role in the emergence of state: cattle breeding separated from agriculture, then craftsmanship, then barter. This division of labour and development of work equipment boosted the productivity. Surplus was produced, which lead to origination of private property. As a result, the society split into the haves and the have-nots, the exploiters and the exploited. The most significant after-effect of private property is the detachment of public authority, which no longer represented the whole society’s interests. The commanding role went over to the rich, the managers, who created a political body — the state, which acted as a means of protecting the interests of the well-to-do. To sum up, the state emerged primarily for the conservation and maintenance of superiority of one class over the other, as well as of society’s integrity. The advocates of this theory believed that, as soon as classes and social inequality are erased, the state will perish. This theory is quite rational, although it seriously underestimated ethnic, religious, psychological, military, and other factors which influenced the statehood. 8. Psychological theory (Leo Petrazhitsky, Siegmund Freud). According to this theory, the origins of the state lie in human psyche: some are inclined to lead, and others — to be lead. The founders of this theory focus on the human need to live in a society, the need to search for authority. At the same time, there have always been people who are dissident or aggressive. The state emerged for the suppression of those psychological personal qualities, as well. Consequently, on the one hand, the state is aimed at catering the majority’s needs for obedience, and on the other hand, at suppressing the aggressive tendencies. Therefore, the nature of state is psychological, rooted in the human psyche principles. There are also other theories of origins of state: irrigational (Karl August Wirrfogel), sportive (José Ortega y Gasset), racial (Joseph Arthur Gobineau), etc. One must remember, however, that each of the above theories is merely yet another point of view at the statehood and may not claim omnitude.

1.3. Peculiarities of the Birth of Law Law as a social institute emerged almost simultaneously with the state, since they generally support each other's existence and efficiency (although there are differing opinions on this topic). The state cannot exist without the law (since the law regulates the political authority and often is a means of enacting state policies), just as the law cannot exist without statehood (since

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the state establishes, warrants and enforces legal rules). State agencies are the main structures in control of compliance with law and enforcing the respective legal sanctions in case of a breach of legal rules. Apart from that, it is worth noting that the state is not the only force which may create the law. For example, in the East, the Quran and other religious norms are the supreme source of law. Besides, the clergy sometimes directly influences the legislative process: both in Russia and in Western Europe. It is an axiom that the law is the only means for the state to impose its will as compulsory for everyone. The advent of law is a long process which lasted during the lives of many generations. Initially, only some separate legal concepts and principles came into existence. Over time, such “fragments” of law gradually formed a uniform, inherently consistent legal system of any given society. It may be argued that historically the law emerged to maintain the dominant position and ensure the safety of some societal strata and groups and only subsequently it evolved into the instrument of social compromise. For example, an infringement on the life or property of noblemen traditionally led to a much more severe penalty than the same actions committed against a member of a non-priviledged group. E.g, under the Ancient Babylonian Hammurabi Code (XVIII century BC), a thief was obliged to compensate the owner of the stolen item its losses tenfold, and if property belonged to a church or to the supreme state authorities, thirtyfold. Customs were kept in the mind of people and manifested in their behaviour. In contrast, legal rules were from their very emergence in a written form and publicly available. Formality and positivism of the law are its principal characters, and without them the law may not exist. Law is a more complex regulator than custom, while, apart from prohibitions, it uses other methods such as authorisation (enabling) and obligation (command) which make it possible to choose between a number of methods to regulate social relations. The birth of law is a result of sophistication of social interactions and aggravation of societal antagonism, since primitive social norms were insufficient for coping with both of the above. There are three ways in which legal rules were mainly formed: 1) transformation of primitive customs into legal rules and their sanctioning by the state; 2) law-making activity of the state which manifests in promulgating special documents containing legal rules — i.e., legal acts (laws, decrees, orders, etc.); 3) court practice, consisting of case-by-case decisions of state courts which grow into precedents — guiding models for judges in similar or analogous cases. Many factors including cultural, historical, geographical and other had an impact on the birth of the law. Thus, legal rules, just as customary norms, are one of the types of social norms, although they significantly differ from customary norms.

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Customs were created by the society as a whole, whereas the law is formed either by states themselves, or by their authorised bodies, or by other social institutions. Customs manifested general will and were a habitude of sorts, whereas the law embodies the balance between the interests of a person, a society, and a state.Customs could exist in a non-formalised form, whereas the law is always formalised in official documents (laws, subordinate acts, decrees, court orders, etc.). Customs are enforced by the society itself and by the force of societal persuasion, whereas the law is enforced and safeguarded by the state and its specialised enforcement and management agencies.

Test questions and tasks 1. Which are the principal causes of the birth of the state? 2. Please name the principal characteristics of state formation in the East, Athens and Rome. 3. Where does the main difference lie between the materialistic theory of state origination and the theory of violence? 4. Please list the differences between a legal rule and a custom.

Chapter 2. STATE: ITS ESSENCE AND FUNCTIONS 2.1. State Power: Its Nature and Distinctive Features State power (state authority) is a type of social power without which existence of any organised society is unthinkable. Almost all social relations are in some way or another a manifestation of power, since social power is a very important form of managing not only social behaviour, but also complex social processes. Social power is practically the only way to ensure alignment between the actions of individuals. In general, social power denotes a domination-submission relationship between members of the society which is inherent in any group of people and which is based on coercion (enforcement). As M. Weber noted, power is “the ability of an individual or group to achieve their own goals or aims when others are trying to prevent them from realising them”, regardless of the basis for such ability. In academic literature, there have been various viewpoints as to the interrelation between two notions: “state power” and “political power”. According to one view, state power is a narrower category than political power, since political power is exercised by the state as a whole or its specialised agencies as well as by other, non-state elements of the political system: local governments, political parties, labour unions, etc. At the same time, while state power represents the society as a whole, political power often represents only a part of the society or a social group. According to another, less widespread point of view, the notions of “political power” and “state power” are one and the same, since the political power is emanated from the state and is exercised by the state (either directly or indirectly) and upon its authorisation. State power is a relationship of authority and hierarchy between political actors, individuals and entities supported by state coercion (enforcement). State power leads to the establishment of a system where it becomes the supreme influencing force, recognised by the population of the state (willingly or against their will).

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State power is characterised by the following distinctive features: 1. it extends to the whole territory of the state and all society; 2. it is public-political (i.e. it is emanated from the society and governs it on the basis of certain criteria); 3. it is supported by state coercion; 4. it is executed only by specially authorised agencies (bodies) and persons (public officials, politicians, internal bodies, etc.); 5. it establishes a system of taxes and is financed by the taxpayers' means; 6. it determines and supports a division of the population on the basis of certain territorial criteria; 7. it is legitimate and legal. Legitimacy and legality of power are not the same notion. Legality is the legal basis of the power, its legal characteristic, whereas legitimacy is the trust of the population to the power, its justification in the public perception, which is its moral characteristic. Any authority (power) which promulgates laws, however unpopular, is legal, whereas it may be illegimate, i. e. unaccepted and neglected by the population. It is widely believed that state power is the supreme form of power within any state.

2.2. Definition and Characteristics of State The state is an apparatus of public-political authority at a certain territory. All other organisations which constitute the society’s political system coordinate with the state and its legal regulations, laws in some way or another. There is a number of definitions of state, which is justified by its contradictory nature, as well as by various takes on its essence. For instance, M. Baitin supposes that the state is an organisation of political authority required for the performance of objectives of the particular classes as well as common objectives intrinsic to all societies. A number of scholars believe that the state is designed to combine two principalities: the class and the universal. The class approach to the essence of the state focuses on the assumption that the state is, above all, an organisation of political power of the economically dominant class. Using this approach, the state is used in the narrow sense — as a means of protecting the dominant class’s interests. In this case, the priority of the dominating class’s interests will inevitably cause opposition of the other classes. The problem therefore arises: the opposition should be eliminated with the help of violence, dictatorship, domination. Slave states, feudal states, early bourgeois states, socialist states (at the stage of proletarian dictatorship) are to a large extent class states. The universal approach focuses on the fact that the state should be the common welfare institution designed for achievement of social compromise. The search for mutually advantageous ways of reconciliation of conflicting

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social interests must become the main priority of each and every governmental agency and the state on the whole. Pursuant to this approach, the state does not take a definite class position, but acts as an arbitrator trying to reconcile social conflicts, collisions, and challenges. Regardless of the fact that the class and the universal approach to the essence of the state are two completely different takes on its nature and purpose, a lot of scholars encourage to consider them both in conjunction, since each state is designed to see for performance of common tasks as well as class-specific tasks. According to the religious approach, the state is defined as an organisation of political power which assists the enforcement of some religion’s interests. Take, for instance, Catholic Vatican, Muslim states — Pakistan, Iran, Saudi Arabia, which are motivated by religious principles. The national (nationalist) approach defines the state as an organisation of political authority which protects the interests of the ethnic majority at the cost of ignoring other nations’ interests. Perfect examples in this regard are modern Latvia, Estonia, which, having declared democratic states of law, in reality (as confirmed by international organisations and commissions) implement nationalistic policy (in the interests of native people) and infringe on other nationalities’ rights. The racial approach defines the state as an organisation of political authority which protects a certain race’s interests at the cost of ignoring other races’ interests. This approach was popular in the eighteenth, nineteenth, and even in early twenteeth century. That being said, the state may be defined as an organisation of political authority which strives to satisfy particular group’s interests (class, common, religious, national, others) on the certain territory. Other widely spread definitions of state include the following. The state is “a social union of free people where a peaceful order was imposed and the exclusive right to exercise coercion was granted to state agencies” (N. Korkunov), is a “natural organisation of authority designed for the protection of the existing public order” (L. Gumplowicz), is a “union of individuals based on the rule of law, on common territory, on loyalty to certain authoriy” (I. Ilyin), is a “special political hierarchy of the society in possession of an enforcement apparatus and expressing the will and interests of the dominant class or the whole nation” (V. Lazarev). We believe that the most suitable characteristic of the essence of the state is the following: it is a management apparatus which acts on a scale of the society on the whole and is limited by certain territory. Therefore, one can declare that the state is a united political organisation of the society whose authority covers the whole territory of the state and its population, and which possesses a special enforcement apparatus along with sovereignty. This definition includes authority, territory, and population as the three most important features of state (also reffered to as “triad of the state”).

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The state differs from other social institutions, organisations, and establishments in the following: 1) the state is the sole official representative of the society on the whole; 2) the state is responsible for its territory and population, i.e. for those who are united under its authority regardless of their affiliation with some race, tribe, institution; 3) the state is tightly bound with its population (institute of citizenship); 4) the state has public authority which is separate from the society and population (enforcement apparatus, the judiciary, officials, the army, the police, courts, prisons, etc.); 5) the state establishes a system of taxes, fees, and payments required for solving universal social matters and for maintaining the bureaucratic apparatus; 6) the state is indivisible from law (the two are interdependent), it creates and maintains the system of judicature for addressing conflicts; 7) the state, as a rule, holds a monopoly in rule-making (adopts laws and regulations) and in legal application of physical coercion and force; 8) the state possesses the materiel for implementing its policy (state property, budget, currency, etc.); 9) the state possesses sovereignty (territorial supremacy and independence in foreign relations). In the society, authority may come from the party, the family, religion, etc. However, the only type of authority whose decisions are binding for all citizens, organisations, and institutions belongs to the state. It is generally believed that the state is the sole bearer of sovereign power. Apart from the abovementioned characteristics, the state has certain paraphernalia. The core ones include the national emblem, the flag, and the anthem.

2.3. State Functions and Their Classification Functions of state are the primary lines of activity of the state. It is through the functions that one sees the essence of the state, its nature and social designation. The subject matter of functions reflects what the state and its governmental agencies do, which matters they address. Functions of state should not be confused or equated with functions of separate governmental agencies, i.e. with the matters of competence of various state organisations according to their position in state mechanism and political system. Functions of state should not be equated to state objectives. While the former represent the lines of state activity, the latter are the aims which the state pursues. Consequently, the objectives predetermine the functions. Functions illustrate the socially-oriented role of the state at some period of its development, therefore functions evolve along with the state, depending on the environment where the state exists. Functions of state may be classified depending on various criteria.

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Based on the duration they can be permanent (e.g., economic) and temporary (e.g., humanitarian relief for the benefit of a region hit by an earthquake). Based on the principle of separation of powers they can be legislative (law-making), executive (managerial), and judiciary. Based on their significance they can be primary (e.g., public order maintenance) and secondary (i.e., compound elements of the primary functions, e.g. function of dispute settlement, protection of competition at the market of goods and services, etc.). Depending on the sphere of social life, functions may be external and internal. External functions of state are primary lines of state activity when addressing external matters which provide sovereign existence and harmonious relations with the global community. These include, by way of example, the following: defense, maintenance of peace in foreign relations and world order, cooperation with other states. External activity of any state, including the Russian Federation, can only be efficient and fruitful provided that it is based on international documents, taking into account national, socioeconomic, cultural, and other specific features of all the nations comprising the global community. Internal functions of state are, respectively, the primary lines of state activity when addressing internal matters. These include, as a rule, the following: protection of individual rights and freedoms, economic function, taxation, ecological function, function of social welfare, etc. At the same time, one must take into account that the separation of functions into external and internal is somewhat relative. For instance, the economic function of state which is traditionally characterised as internal, also includes international economic activity which is hard to ignore in today’s globalising world.

Test tasks and questions 1. What do you think are the primary characteristics of state authority? 2. Please list the features of state. 3. What do you think is the most objective approach to understanding the essence of the state? Why? 4. What is the difference between the function of state and the objective (task) of state?

Chapter 3. FORM OF STATE 3.1. Form of State: Definition and Elements States differ from one another through a number of features: size of territory, population, climate, cultural norms, ethnic composition, etc. At the same time, the most significant features of the state concerning its internal structure, manner of formation and hierarchy of its governmental bodies, ways of administration within state boundaries, as well as methods of execution of its political will — these features are embroidered in the form of state. Therefore, form of state is a category involving: a) form of government, b) form of state structure, and c) type of political regime. Form of state predetermines political reality and integrity of state bodies, since form of state is a three-dimensional feature, the elements whereof should be considered in greater detail.

3.2. Form of Government Form of government determines the manner of formation and structure of higher governmental bodies, their interaction with one another and with individuals. Higher governmental bodies include the head of state (either monarch or president), its legislative body and the government. Depending on the specific features of either form of government, states are divided into two categories: monarchical and republican. Monarchy is a form of government where full or partial authority belongs to one-man head of state (monarch), be it king, tzar, shah, emperor, etc. Characteristics of monarhy: hereditary and termless authority, and the lack of definite criteria of its dependance on the people’s will. Monarchies are further divided into absolute (i.e., lacking representative bodies and the monarch being the only bearer of sovereignty — Saudi Arabia, Brunei), and limited (constitutional) — other state bodies apart from the monarch are bearers of sovereignty and limit the monarch’s authority — Great Britain, Japan, Spain, Sweden, Norway, and others. Despite the fact that a number of modern monarchical states adopted Constitutions and formed parliaments (such as Bahrain, Qatar, Kuwait), they

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essentially remain absolute monarchies. The Constitutions of these countries envisage that all authority comes from the monarch, and their parliaments are only vested with consultative prerogatives. One must bear in mind that monarchies have existed for several centuries in a variety of types and forms (Eastern despotism, empires, slave states, early feudal states, states of the feudal disunity period, estate-representative monarchies, and absolute monarchies), therefore any categorisation is arbitrary and should be based on concrete factual and cultural circumstances of the states subject to characterisation. Republic is a form of government where the head of state is elected and dative, and her or his authority is deemed derivative from the electorate or the representative body. Characteristics of a republic: electivity of governmental bodies and temporality of authority; dependance on the electorate. Depending on who forms the government and who the latter is accountable to, republics can be subdivided into presidential, parliamentary, and mixed. With presidential republics (USA, Brazil, Argentina, Venezuela, Bolivia, Syria, etc.) the president is the central body; with parlamentiary republics (Germany, Italy, India, Turkey, Israel, etc.) it is the parliament; with the mixed type (Russia, France, Finland, Poland, Bulgaria, Austria, etc.) it is the president and the parliament jointly. In a presidential republic the president is elected independently from the parliament either by an electoral college or by the people. The president is simultaneously the head of state and of government. She or he appoints the government and manages its activity. The parliament may not vote non-confidence in the government, and the president may not dismiss the parliament. However, the parliament may constrain president’s and government’s actions through adopting laws and the budget, sometimes even by removing the president from post (should she or he violate the Constitution or commit a crime). The president, on the contrary, is vested with permission to veto the parliament’s decisions. In a parliamentary republic, the government is formed by the legislative body and is accountable thereto. The parliament may vote non-confidence in government on the whole, in the prime-minister, or in a particular minister. The official head of state is the president, elected either by the parliament, or by an electoral college, or by the people. However, the president does not play a significant role in the system of governmental bodies: presidential obligations are limited to mere representation and hardly differ from the functions of the head of state in constitutional monarchies. The real head of state is the prime-minister. A specific feature of mixed-type (half-presidential, half-parliamentary) republics is government’s double liability (before the president as well as before the parliament). The president and the parliament are elected by the people. The head of state is the president, who appoints the prime-minister, taking

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into account the distribution of political influence in the parliament. As a rule, the head of state presides at the governmental sessions and affirms the government’s decisions. The parliament is also able to control the government by affirming yearly budget and by voting non-confidence.

3.3. Form of State Structure Form of state structure is an element of form of state which defines the internal structure of state, manner of political and administrative division, and which determines the interactions of the state with its compound parts. State structure is political and administrative structure of the state, its inner territorial organisation. This definition determines the distribution of power between the center and the local governments. There are several forms of state structure, depending on this criterion. Unitary state is a — simple, uniform state, compound parts whereof are administrative units lacking state sovereignty. A uniform system of higher governmental institutions and legislature is established, as, for instance, in Poland, Hungary, Bulgaria, and Italy. In a unitary state, central governmental bodies administer foreign relations and represent the country at the international level. Unitary states may be centralised — i.e. Norway, Sweden, Denmark, etc., and decentralised — Spain, France, etc. In the latter, major regions enjoy greater autonomy and solve the matters withing their competence by themselves. Federation is a complex, associated state, compound parts whereof are statelike bodies and to some extent have state sovereignty and other characteristics of a state. Along with higher federal governmental bodies, regional ones are formed, and regional legislation is passed, as, for instance, in Germany, India, Mexico, and Canada. Federations may be based on the territorial (USA) or national-territorial principle (Russia). Federations are based on the principle of distribution of functions, competence, and power and authority between regions and center. This principle is set forth in the constitution, which may only be amended with regions’ consent. Authority is distributed in the following manner: some part is vested with the federal bodies, another with the regions, another is joint. Legislative body of federative states, as a rule, consists of two chambers, one of them representing regional interests. Nowadays, many decentralised unitary states virtually copy a federative form of state (France, Spain), and it is quite difficult to differentiate between the two. Confederation is a temporary union of states, which is formed for the sake of political, military, economic, and other purposes. Therefore, it is not so much a form of state as it is a manner of cooperation among independent sovereign states.

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A confederation does not have sovereignty, because there is no central governmental body and no uniform legislation. Within a confederation, union bodies may be formed, however, only for the purposes of confederation. Historical records show that confederations are rather unstable political unions that fall apart (for instance, Senegambia — confederation of Senegal and Gambia during 1982—1989) or reform into federative states (for instance, Old Swiss Confederacy during 1815—1848). Confederative form of state may have different titles: “union”, “commonwealth”, etc.

3.4. Political Regime and Its Types Political (state) regime is a system of methods, manners and means of exercising political authority. Political regime is a number of instruments and methods of carrying out authority by the rulers, high officials. In some ways political regime is closer to the term “style of state management”. The term “political regime” includes the following characteristics: — the extent of people’s participation in the mechanisms of formation of political authority, and the methods of such formation; — the relation of human rights and freedoms with the rights and obligations of the state, security of human rights and freedoms; — characteristic of real mechanisms of exercising political authority in the society; extent of exercising political authority by the people; — status of mass media, degree of openness in the society and transparency of governmental mechanism; — status and role of non-governmental agencies in the political structure of the society, relation between the legislative and the executive branches; — type of political behaviour; character of political leadership; — domination of certain methods (persuasion, coercion, etc.) in exercising political authority; — political and legal status of “law enforcement” bodies in the society (the army, the police, state security, etc.); — degree of political pluralism, multi-party system. Depending on the means and manners of carrying out state administration, political regime may be divided into democratic, authoritarian, and totalitarian. Democratic regime may be characterised, above all, with the rule of people, the extent of their participation in political and administration processes. However, it is impossible to have the people exercise all political authority. It is, rather, an ideal state. Meanwhile, there is a number of states which have stepped forward in this direction (Germany, France, Sweden, USA, Switzerland, Great Britain) and others, which are role models for the rest. The primary characteristics of democratic regime are the following: — human rights and freedoms are declared and virtually enforced;

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— decisions are made by majority, and minority’s interests are taken into account; — all necessary conditions for rule-of-law state and civil society are in place; — central and local governmental bodies are elected, replaceable, and accountable to the electorate; — law enforcement bodies (the armed forces, the police, security bodies) are under society’s democratic control; — methods of persuasion and compromise dominate; — political pluralism, including multi-party system, competition, and opposition; — openness; mass media are free from censorship; — virtual enforcement of separation of powers into the legislative (meant to adopt laws and development strategy), the executive (meant to enforce laws and conduct day-to-day activities), and the judiciary (meant to act as arbitrator in case of conflicts, wrongdoings). Democracy may be exercised via two forms: direct (immediate) and representative. Direct democracy allows the people to exercise power without the help of political agents. That is why it is called immediate, i.e. carried out through universal suffrage, referenda, people’s meetings, petitions, demonstrations, discussions. Positive features of direct democracy include the following: it provides greater opportunities (as opposed to representative bodies) for expression of citizen’s interests, for their participation in the political process; it provides for the total legitimisation of power; it provides for control over the political elites and so on. Negative features of direct democracy: lack of will with the majority of the population to administer, the complexity and high costs of holding democratic activities, low efficiency of decisions due to low competence of the majority of “rulers” and so on. Representative democracy allows the people’s agents (members of parliament) and other elected governmental bodies to exercise authority. These agents should express the interests of various classes, social groups, political parties, and social organisations. The advantage of representative democracy lies herein: it provides greater opportunities (as opposed to immediate democracy) for greater efficiency of decisions, because highly professional persons take part in the decision-making, rational organisation of political system and so on. The disadvantages of representative democracy include: possible unlimited growth of bureaucracy and corruption, great gap between the government and its people, decision-making not in favour of the majority, but in the favour of high officials, lobbists, etc.

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Totalitarian regime is a type of political regime which is characterised by total state control over all spheres of social life, full submission of citizens to the political power and the dominating ideology. The primary characteristics of a totalitarian political regime are as follows: — the state strives to global dominance over all spheres of social life, to all-embracing power; — political power is almost completely alienated from the society, but the latter fails to realise it, since in its political mind, an idea of “unity”, “merger” of power and people is implanted; — the state exercises monopolistic control over the economy, mass media, culture, religion, etc., including personal life, motives of people’s actions; — state authority is formed in a bureaucratic manner, via means hidden from the society, it is surrounded with a “halo of secrecy” and is inaccessible to people’s control; — the prevailing method of administration is violence, coercion, terror; — one-party dominance is present, virtual coupling of its apparatus with the state, prohibition of opposition; declaratory nature of human rights and freedoms, lack of definite warranties; — pluralism is virtually eliminated, state authority is centralised, lack of control mechanisms over the oppressive state bodies, etc. A fascist regime is a special form of totalitarianism. The former may be compared with a radical organisation. The first countries where fascism emerged were Italy and Germany. Authoritarian regime is a regime where political authority is exercised by a certain person (class, party, elite, etc.), people’s participation being minimal. Chief feature of this regime is authoritarianism as a method of exercising power and managing, as a type of social relations (for instance, Spain during Franko’s rule, Chili during Pinochet’s rule). Authoritarian regime is a kind of compromise between totalitarian and democratic regimes. Authoritarian regime, on the one hand, is weaker, more liberal than totalitarianism, on the other hand, it is stricter, more antipopular than democratic. Primary characteristics of authoritarian political regime include: — authority on higher and local levels is concentrated in one or several bodies’ hands, the people being alienated from actual levers of state authority; — principle of separation of powers is ignored (often, the President and executive bodies subdue other bodies to themselves and are vested with legislative and judiciary powers); — representative bodies’ role is insignificant, although they can still exist; — courts act as collateral bodies; non-curial bodies may be in place; — state bodies and officials are not elected and are not accountable to the public;

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— primary methods of state administration are commanding methods, but not terror; — limited censorship is in place, openness is only half-full; — pluralism is partial; — human rights and freedoms are declared but not fully enforced; — law enforcement bodies are non-controllable and are sometimes used to achieve political aims, etc. Authoritarian regime is non-homogenous. It may vary from despotical to tyrannical to military. Autoritarian regimes are different from totalitarian in the following ways: 1) while totalitarianism maintains total control, authoritarianism allows the existence of social spheres exempt from state control; 2) while totalitarianism exercises systematical terror against its foes, authoritarianism practices “selective” terror aimed at prevention of opposition.

Test questions and tasks 1. 2. 3. 4.

Please characterize the several types of republic. Please list the primary issues of federative states. Is a federative state less stable politically than a unitarian one? Based on your knowledge, please list three most important characteristics of democracy and analyze them.

Chapter 4. STATE MECHANISM AND THE SOCIETY'S POLITICAL SYSTEM 4.1. Definition and Structure of the Mechanism of State The state exercises management of the society through an elaborate and complex system of governmental bodies, which is called the mechanism of state. In other words, mechanism of state is a system of state authorities designed to exercise state’s objectives and tasks. In the academic circles, the phrases “mechanism of state” and “state apparatus” are quite often used as synomyms, and for a good reason. However, another position appears more objective, according to which the mechanism of state is a wider term than “state apparatus”. The latter represents a system of state agencies which are directly involved into exercising power, and mechanism of state also includes state institutions and organisations, as well as material and technical support designed to facilitate efficient power enforcement (the armed forces, the police, the penitentiary, etc.) Traditionally, the following elements are included into the structure of the mechanism of state: 1) a system of interrelated and subordinated state agencies which are vested with authority; 2) state institutions which are not vested with authority (except for administrative) and carry out practical activities pursuing the social, cultural, educational, academic functions of state (libraries, hospitals, the post, the telegraph, academic institutions, higher educational institutions, schools, theaters, etc.); 3) state enterprises which are not vested with authority (except for administrative) and carry out economic activity, fabricate produce or provide manufacture, perform various works and services for catering to the society’s needs and gaining profits; 4) state corporations are a form of non-commercial organisations which are established by laws for accomplishing social, administrative, and other tasks of public interest; 5) state officials carrying out management; 6) materiel and technical support, as well as enforcement required for due operation of the state apparatus.

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Mechanism of state and its structure are not unvarying. They are constantly influenced by internal (cultural-historical, national-psychological, religious and ethic features, size of the territory, economic development level, distribution of political power) and external (international scenery, foreign relations) factors.

4.2. State Agencies and Their Classification The primary element of the mechanism of state is a state agency, which is defined as a unit of state apparatus carrying out certain functions and vested with powers of authority. The most important characteristics of a state agency are as follows: 1) it is an independent unit of the mechanism of state, which, at the same time, is an integral part thereof; 2) it acts on behalf of the state and with the latter’s support; 3) it is established and acts based on legislative instruments (the constitution, laws, and regulations); 4) it carries out exclusive tasks and performs exclusive functions through respective means and methods (having powers of authority, including enforcement measures); 5) it has its own matters of competence — a complex of powers (rights and obligations) granted to a certain agency or an official for due performance of important tasks and functions; 7) it involves a number of state officials and branches (departments, divisions, teams, executive offices, etc.) which are held together with common purposes; 8) it possesses the necessary materiel (buildings, transport, facilities, etc.) and financial funds (operating bank account) required for due performance; 9) it operates in a certain territory. State agencies may be classified depending on various criteria. Based on the manner of establishment — there are agencies elected directly by the people (the President, the State Duma, regional legislatures) and agencies formed by other agencies (the Government, the Constitutional Court, etc.). Based on the separation of powers principle — there are legislative (representative), executive, and judicial agencies. Legislative agencies (parliaments, legislative assemblies) are designed to represent the will and the interests of the people through laws; executive agencies (the Government, ministries, administrations) are designed to bring into effect the laws; judicial agencies (constitutional, arbitrazh (economic/commercial) and other courts) deliver justice by adjudicating matters. Based on term of office — permanent and temporary. Based on the manner of operating — collective and one-man. Based on the form of activity — law-making, law-administrating, and law-enforcing. Based on the nature of authority — agencies of universal authority (the government) and agencies of special authority (ministries).

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There is a number of other criteria for the classification of state agencies. Each state agency’s primary task is the efficient and timely performance of the respective state tasks and functions. Therefore, every state may form its own mechanism, depending on its needs. The aim is to minimize the bureaucracy and eliminate overlapping of state agencies.

4.3. Principles of Organisation and Functioning of the Mechanism of State The principles of organisation and functioning of the mechanism of state are the initial bases, ideas, requirements (partially set forth by law) which are underlying in the establishment and functioning of state mechanism. The system of principles is constantly changing and evolving. These principles include: 1. principle of priority of human rights and freedoms (meaning that the state and its agencies, as well as other actors in the political system must acknowledge, observe, and protect them); 2. principle of democratism (meaning that citizens take an active part in the formation and administration of state agencies, and that state policy is developed in a manner that takes into account the various interests of the majority of the society, and the minority’s rights are not ignored); 3. principle of separation of powers (the legislative, the executive, and the judiciary), creating mechanisms which minimize state agencies’ and officials’ discretion and bring about the system of checks and balances; 4. principle of legitimacy (meaning the universal obligation to abide by the constitution, laws, and regulations); 5. principle of openness (meaning that the public is informed of state agencies’ activity, guarantees the transparency of the bureauctratic apparatus on the whole); 6. principle of federalism (meaning that regional interests are taking into account in federative states); 7. principle of expertise (creates favorable conditions for using qualified employees in the activity of state apparatus, guarantees high level of expertise). At the same time, this principle does not mean that an official must practice some definite field, e.g. be a lawyer, an economist, a doctor, etc.). 8. principle of combination of collegiality and one-man management (provides reasonable combination of the democratic and the bureaucratic principles, determines the addressing of state matters by both collegial and one-man offices); 9. principle of combination of electivity and way of appointment (sets an optimal ratio between decentralisation and concentration in state management; reflects the obvious fact that not each and every state authority can or may be elected or be accountable to the electorate); 10. principle of hierarchy (means that state agencies are at various levels, ones being subdued to the others and bound by the latter’s decisions).

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Universal consideration of the abovementioned and other principles allows to provide maximum efficiency of state management, leads to its democratisation and increased strength.

4.4. Definition and Structure of the Society's Political System Social management is performed by various actors: the state (specifically designated for that purpose), the parties, political movements, social organisations, trade unions, funds, etc. These constitute the political system and influence society’s political reality and exercise political power. Political system of the society is a law-based and socially oriented combination of institutions (state agencies, political parties, movements, social organisations) where political life of the society takes place and political power is exercised. The term “political system of the society” which came into scientific use in the second half of the twentieth century shows how political processes are governed, how political authority is established and how it operates. That is the mechanism of political activity’s organisation and enforcement. Any society’s political system reflects the relationships between the domineers and the dependents, since relations of power are the core of the political system. In other words, political system is a form of interaction among norms, ideas, political institutions, and citizens. The political system organises and enforces political power, i.e. power connected with social management (one believes that political power is the ability of one person or a group of persons to manage a society or some of its institutions based on national objectives). A political system has a number of characteristics: 1) it is within its frames and with its aid that the political power is exercised; 2) it depends on the society’s level of development, on its socioeconomic structure, the dominating ideology, etc. 3) it is relatively independent. The political system governs production and distribution of amenities among social groups based on the usage of state authority, participation therein, fighting therefor. The following compound parts of political system are highlighted: 1) society’s political organisation, including the state, political parties and movements, social unions and organisations, labour unions, etc.; 2) the political consciousness which characterizes the psychological and ideological incarnations of political authority and political system; 3) sociopolitical and legal rules governing the society’s political reality and the process of exercising political authority; 4) political relations between the actors of the system related to the political authority; 5) political practice which includes political activity and existing political experience, political reality.

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The primary definition which constitutes the core of an integral political system is “political authority”. Each organisation involved into a political system takes a special part therein, has its own designation and functions and participates in addressing society’s problems accordingly. Depending on the nature, position, and role of certain elements, the following types of political systems are named: democratic, command-administrative, theocratic, mixed, etc. The essence of society’s political system is epitomised by its functions. Therefore, the political system’s characteristic would not be complete without considering the functions. The functions of political system are as follows: 1) maintaining political power of a certain social group or its majority (political system sets forth certain forms and methods of domination — democratic and anti-democratic, violent and non-violent, etc.); 2) management of various spheres of people’s lives in the interests of certain social groups or the majority (the political system, being the manager, sets tasks and objectives, determines society’s development patterns and works out programs of political institutions’ activity); 3) mobilisation of means and resources required for achieving the set tasks and objectives (otherwise these are impossible to achieve, without massive managerial work, human, material, and mental resources); 4) detection and representation of various actors’ interests (otherwise politics is inviable, in the absence of selection, strict detection and expression of these interests). The important questions is — what social group’s interests will be dominant, what values they will represent — either true or false; 5) catering to various actors’ needs through distribution of material and spiritual interests in accordance with different ideas of an ideal society (it is in the distribution process that the various interests collide); 6) integration of the society, establishment of necessary conditions for the interaction between the elements of its structure (the political system uses integration of conflicting political powers in order to mitigate the existing collisions); 7) political adjustment (it facilitates formation of individual political consciousness, and the latter ‘enters into the game’ of certain political mechanisms, which leads to reproduction of the political system). Thus, the political system performs a number of functions, thereby fulfilling its purpose, providing stable political relations, binding all actors into a single political organism.

4.5. State and the Political System The correlation between the terms “state” and “political system” is similar to the one between the particular and the general, since the state is merely

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another element of the political system and due to its special status may be considered the core thereof. The state encircles numerous and various political interests, thus regulating political processes. Therefore, the state plays a special role in the political system, making it integral and stable. It performs the most of its management activities using the society’s resources and directing its functioning. The state holds the key position in the political system, since it: 1) acts as the sole official representative of the people who are united based on the territorial and nationality feature; 2) is the sole bearer of sovereignty; 3) is in possession of a special apparatus (public authority) designed to manage the society and of enforcement bodies (the armed forces, security office); 4) holds a monopoly on law-making; 5) is in possession of a specific set of material values (state property, budget, currency, etc.); 6) determines the main development directions of the society. The state does not only act as an independent actor in the political field, but it is also designed to regulate other actors’ behaviour. The state is vested with wide powers in connection therewith: it can set forth legal regimes of organisation and functioning of other various actors — political parties, movements, lobbists, etc.; it registers these actors with the respective authorities (as a rule, the ministry of justice) and engages them into social and governmental affairs; it can effect control over the legitimacy of other political system’s actors activity and take coercive measures against wrongdoers. At the same time, one must understand that the state should be partner, and a just one, equal actor in political relations, one which does not abuse authority. State’s domination in political relations may result in the establishment of authoritarianism and totalitarianism. No paternalist ideas should be dominant in the society, either (that is, the people should not rely on the state exclusively, they should not believe that the state is obliged to take care of them as of children and solve all of their individual problems). The state must carry out universal social functions, at the same time avoiding putting pressure on the society and forcing obligatory ways of behaviour upon it.

Test questions and tasks 1. 2. 3. 4.

What is understood by “mechanism of state” and “state apparatus”? Please list the features of state agencies and classify them. What is the political system of the society and how is it structured? Please define the position of state and law in the political system of the society.

Chapter 5. ESSENSE OF LAW 5.1. Definition and Characteristics of Law Law is a complex and multifacet phenomenon. Therefore, there are multiple interpretations of law. Nowadays, the most common definition (with certain stipulations) is as follows. Law is a complex of formal rules made or sanctioned by the state, expressing the ideas of freedom, justice, humanism, ethics, human rights and interests. Law aimed at regulating people’s behavior for proper development and functioning of the society. There are other definitions of law which are also correct. Law is a system of universally binding rules which are made or sanctioned and enforced by the state, which are aimed at regulating social relationships; law is an official, civilised and highly efficient regulator of social life, the central social, cultural, and ethical value, measure of freedom and responsibility. These definitions of law do not contradict each other. The origin, nature, character of law are determined by multiple factors — economic, political, cultural, national, religious, etc. However, the prime factor is economic necessity which influences social processes. Law emerged at an early stage of social development as a reaction to obvious need to establish a stricter and more powerful regulator of social relationships which would possess coercive power. Ethical and other norms could no longer cope with the task. The essence of law lies in the fact that it expresses and consolidates the balance of interests of various social groups, layers, classes. The interests are considered nationwide and general. The consolidated will of the people is transferred onto laws and basic legal acts which are binding upon those who they are addressed to. Law is a public form of alignment of interests, a means of achieving social compromise, and that is why each modern society must have it. R. Ihering considered “accomodation of interests and reaching their balance” to be the purpose of law. Pre-revolution Russian lawyers, namely N. Korkunov, P. Novgorodtsev, E. Trubetskoy, and others also deemed harmonisation of interests central purpose of law.

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In other words, the primary mission of law is to be an objective, just, and efficient (imperious) regulator of social relationships, the actors whereof represent various interests and needs. At the same time, law cannot satisfy everyone. Alignment of everyone’s interests is a sophisticated task, since there is hardly something more dynamic, conflicting, and changeable than human interests. While compromise may be reached today in some topic, it may cease to be sufficient tomorrow due to the change of circumstances. That is why laws can exist which contradict the expectations of some of the society’s members or even groups. In this regard, law may never achiveve one hundred percent congruency. However, it should aspire to that purpose and remain a means of mitigating or settling social conflicts. Another important aspect of law is the fact that it is an official measure, scale of personal freedom which is acknowledged and guaranteed by law and formally established as normative acts. Law is also measure of liability, since one’s freedom ends where another one’s freedom begins. Therefore, law is a combination of permissions and prohibitions, incentives and punishments, it is a barrier against free will and mercy. Orderless freedom is every bit as dangerous as dictatorship. The most important characteristics of law include the following: 1. Connection with the state. State can either produce legal norms or sanction the already existing ones or delegate rule-making powers to other organisations. In either case, however, legal norms are deemed state-made. No one can create law of their own without the sanction or against the will of state. Otherwise, it would be impossible to consider the state sovereign. The close connection between state and law is, among others, intrinsic to states with highly democratic types of political regime. The increased level of democracy does not necessarily signify the weakened connection between law and state. 2. Normalisation. Law consists of a system of norms. Law is a normalised regulator of social relations, where the primary operating element is a legal norm (rule). 3. Formal definitude. Legal norms are strictly formalised rules giving a detailed description of the permitted or prohibited action and of liability for breach thereof. Apart from that, formal definitude of law is epitomised by the fact that legal norms are set forth in respective legal acts which are therefore called normative (normative legal acts). 4. Generally binding nature. Prescriptions of law are binding upon those who they are addressed to. Inaccurate performance or non-performance thereof leads to legal liability. 5. Enforcement by state. Law differs from other social regulators (morality, ethics, aesthetics) in the following: it is always backed by official (public) authority, its agencies, apparatus which hold a monopoly to legally apply coercion against wrongdoers.

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6. Willful nature. Firstly, law is a product of the mind and will of its creators (legislative and other state agencies, corporations, citizens, etc.). Secondly, law is actualised through the willful activity of individuals and their groups. Thirdly, law acts as a form of expressing the political will of the society where various interests are present. Law is inconceivable outside of people’s activities. 7. Imperious-regulating nature. Any regulation of social processes requires manifestation of authority. Relations of power predetermine the existence of social compromise, maintenance of social order, and enforcement of unpopular legal prescriptions. Therefore, law is based on authority and is a special form of authority aimed at regulation of social relations. 8. Consistency. Law is a system of norms which is not random or chaotic mechanical mass, but, rather, an elaborate and integral system where norms are built into and grouped in a certain manner. Law is a complex hierarchic formation including branches, institutions, norms, and other components. Law is a complex and unique regulator of social relations, therefore various approaches to its understanding coexist. It is almost impossible to identify the only correct definition and perception of law.

5.2. Principles of Law Principles of law are the basic ideas, notions, provisions which demonstrate the role of law as a specific social regulator. They demonstrate the patterns, nature, and designation of law. They represent the generalised rules of conduct which are set forth expressly or implied by law. Depending on the scope of action, principles can be grouped into general, inter-branch, and branch-specific principles. General legal principles are related to the law itself and apply to all branches. General legal principles include: 1) justice (correspondence between one’s role in the society and their social and legal status; congruence between action and retribution, between conduct and award, between crime and punishment); 2) legal equality before law and court (this principle is described in detail in Article 19 of the Constitution of the Russian Federation: “1. All people shall be equal before the law and court. 2. The State shall guarantee the equality of rights and freedoms of man and citizen, regardless of sex, race, nationality, languate, origin, property and official status, place of residence, religion, convictions, membership in public associations, and other circumstances…”); 3) humanism (human rights and freedoms are the supreme value. The state makes every effort to observe protection of human dignity); 4) democracy (legal norms establish various mechanisms to ensure citizens’ participation in managing state’s and society’s matters, protection of citizen’s rights and freedoms);

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5) unity of rights and obligations (no rights are conceivable without obligations, and vice versa); 6) federalism (inherent in those political systems only which exist in federal states. This principle means that two legislative systems are present — the federal and the regional); 7) legality (strict and exact abidance by the law with those involved into legal relations); 8) combination of persuasion and coercion (optimal conjunction of encouraging and discouraging means of influencing social relations). Inter-branch principles of law characterize the essential features and patterns of several branches of law. These involve, for instance, the principle of unavoidability of liability, principle of adversary system of judicial proceedings, principle of openness of judicial proceedings, etc. Branch-specific principles are ones operating in one branch of law. These include: in civil law — the principle of equality of parties in property relations; in criminal law — benefit of the doubt (presumption of innocence); in labour law — the principle of freedom of labour; in land law — the principle of purposeful usage of land, etc.

5.3. Functions of Law Functions of law are the key directions of legal influence onto social relations. Functions of law illustrate its essence and role as the universal social regulator. Functions of law are considered in two dimensions: narrow (strictly legal) and wide (general social). From the wide (general social) standpoint, the following functions of law are distinguished: — economic (law regulates business relations, established mechanisms of distribution and re-distribution of collective goods, etc.). — political (law establishes key mechanisms of state management, political system of the society); — educational (law forms certain paradigms, ideology, attitude toward legal and illegal conduct, etc.); — informative (law is a great array of information which should be internalised); — communicative (law and legal norms determine the manner of communication between people, between authorities and citizens), etc. At the strictly-legal level, law performs the regulatory and the protective functions. The regulatory function is primary. It enables law to maintain social relations which are crucial for the society and the state. This function epitomizes the regulatory capability of law, promotes desirable conduct and discourages undesirable conduct.

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One believes that the regulatory function operates in two aspects: the dynamic and the static. The static regulatory function (sub-function) sets forth the existing state of the society (sociocultural, economic, and political foundation of the society — forms of ownership, political regime, the principle of separation of powers, local administration). The dynamic regulatory function is aimed at achieving the objectives, modifying and improving the existing relationships, at creating new social institutions. This function regulates the dynamics of social relations (norms of civil, administrative, tax, and other branches of law). The protective function is aimed at the maintenance of regular and safe development of social relations, at the protection of law in general and of individual interests in particular, and at recovery of infringed law. The forms of exercising the protective function are: establishment of obligations, prohibitions, suspensions, injunctions, and coercive measures. Abovementioned functions of law are constantly cooperating and ensure the achievement of the main goal — regulation of social relations.

5.4. Legal System of Society The terms of law and legal system are related as the particular and the general, respectively. One traditionally perceives law as universally binding norms established by the state, and legal system as a wider reality which encompasses various legal means which facilitate influence onto social relations by the public authority. Legal system is one of the widest definitions in legal science; it embraces everything that is connected with the existence of law in the society. The core of legal system is certainly the law itself. However, it also involves: law-making and its principles; legal practice (ways of enforcing legal prescriptions); the existing legal ideology and value system; the system of operating legal agencies (court, prosecutor, attorneys); legal relations; legal liability and mechanisms thereof; the body of rights, freedoms, and legal interests; legal awareness and legal culture; practice of interpretation of law, etc. It is hard to list the elements of legal system exhaustively, since this category is extremely wide, and some of its elements develop unevenly, though they are closely connected. The concept of legal system allows to evaluate the level of legal development of a state, the existing manners of enforcement of rights and legitimate interests and suppression of undesirable (prohibited) conduct.

5.5. Modern Legal Families Legal systems of various states (national legal systems) can be characterised by common features, which allow combining them into legal families. A legal family is a body of several national legal systems which are characterised with certain common features (paths of formation and evolution;

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similarity of sources of law, principles of regulating social relations, and branch structure of law; similarity of legal terminology; mutual adoption of primary institutions and legal theories). Depending on the above named characteristics, the following legal families are distinguished: 1) Romano-Germanic (the family of continental law); 2) Anglo-Saxon (the family of common law); 3) religious (the family of Muslim and Hindu law); 4) traditional (the family of customary law). The Romano-Germanic legal family involves legal families of the majority of European states: Italy, France, Spain, Portugal, Germany, Austria, Switzerland, etc. The modern Russian legal system can also be described as related to the Romano-Germanic legal family. The key features of the Romano-Germanic legal family include: — integral hierarchical system of sources of law, where normative acts (legislation) are predominant; — the primary role in formation of law belongs to the lawmakers, who create general legal rules of conduct, while law enforcers (judge, administrative authority) must implement the general rules into individual acts of application of law; — written constitutions are of supreme legal effect; — regulations are of significance (acts issued by the government, instructions, etc.); — the system of law is divided into branches; — legal custom and legal precedent play a supplementary role in the system of sources of law; — human rights are of first and utmost significance, as opposed to obligations; — legal doctrine is important, since it explains the principles of formation and operation of this legal family. The Anglo-Saxon legal family involves national legal systems of Great Britain, the USA, Canada, Australia, New Zealand, etc. This legal family can be characterised with the following features: — judicial precedent is the primary source of law (rules of conduct laid down by judges in their decisions in certain cases and applicable to all analogous cases); — court acts as the primary lawmaker, which makes courts significant body in the system of state agencies; — human rights are of first and utmost significance, as opposed to obligations; the former are enforced primarily through judicial proceedings; — procedural law is important and in many ways predetermines the substantive law; — law is uncodified; — legal doctrines are action-oriented.

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The religious legal family involves legal systems of Muslim states, such as Iran, Iraq, Pakistan, Sudan, etc., as well as Hindu law of India, Singapore, Burma, Malaysia, etc. The following are the features of this legal family: — God is the lawmaker, and not the society or the state, therefore legal prescriptions are deemed eternal and must be trusted and strictly abided by; — religious norms and values are sources of law (set forth in the Koran, Sunnah, Ijma, or in the Shastras, Vedas, laws of Manu, etc.); — legal prescriptions are closely related to religious, philosophical, and ethical rules, as well as to local customs; — legal scholars’ works are of great significance, since they are able to construe the primary sources and underlying decisions; — normative legal acts (legislation) are secondary; — judicial practice per se is not a source of law; it is based on the idea of obligations, not rights (as opposed to the Romano-Germanic and the Anglo-Saxon legal families). The family of traditional law includes legal systems of Madagascar, a number of African and Far East countries. This legal family is characterised with the following features: — customs and traditions are dominant sources of law, they are non-written and are handed down from generation to generation; — customs and traditions are mixtures of legal, ethical, and mythical prescriptions which formed naturally and were sanctioned by the state; — customs and traditions govern relations between groups and communities, and not individuals; — normative acts (written laws) are secondary, although their significance has been increasing; — judicial practice (legal precedent) is not a primary source of law; — the judiciary bases on the idea of reconciliation and maintenance of agreement in the community, its unity; — legal doctrine is non-significant; — many customs and traditions are out of date. Thus, legal families are unlike each other. Each of the above named legal systems has unique features, as well as universal characteristics of any legal system. One should remember that combination of national legal systems into legal families is quite relative.

Test questions and tasks 1. 2. 3. 4. 5.

Please give your definition of law. Please list the features of law. Please give examples of dynamic and static regulatory functions of law. Which elements of the legal system do you think are crucial? Please list advantages and disadvantages of primary legal systems.

Chapter 6. INDIVIDUAL, LAW, AND STATE 6.1. Legal Status of an Individual: Definition and Types The manifold relations between the law and the individual may be characterised via the definition of individual's legal status, which reflects the primary aspects of the individual’s interaction with law: their interests, needs, relations with state, labour, social and political activity, social needs. Thus, the legal status of an individual is a cumulative term reflecting legal position of an individual in the society, their rights and obligations. The structure of individual’s legal status includes the following elements: rights and obligations, legitimate interests, legal capacity, citizenship, liability, etc. Several types of legal status are distinguished: 1) general, or constitutional (status of an individual as a citizen, as envisaged by the Constitution. It remains the same for all citizens of the Russian Federation); 2) special, or generic (status or legal position of certain categories of citizens — students, retired, military officers, etc.); 3) individual (shows the specific position of a certain individual, their rights and obligations, specific nature of their job, gender, age, etc.); 4) status of individuals and entities; 5) status of aliens, stateless persons, dual nationals, refugees; 7) branch-specific status: in civil law, in administrative law, etc. It is worth underlining that the state and the society should constantly improve one’s legal status by optimising the manner of their interaction.

6.2. Correlation and Interaction of State and Law State and law are interrelated social institutions which emerged in-parallel and for the same reasons. They are both designed to organise social relations, align various and sometimes conflicting social interests, and provide satisfactory living conditions for people. Nevertheless, state and law are self-sufficient enough to have differences as well as similarities.

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State and law are united because: — they emerge and develop jointly; — they act as means of management and regulation of social relations; — they are designed to align various interests of individuals, society, and the state itself; — they are defined through economic, social, spiritual, ethic, and religious factors. State and law are separate because: — state is an organisation of political power, and law is an instrument of regulating social relations; — state expresses its authority, and law is a compromise between various actors of social relations; — state’s primary element is an agency, and law’s primary element is a norm (rule). Modern literature indicates three possible models of state-law interaction: 1) totalitarian (state ranks above law and is not connected thereto); 2) liberal (law ranks above state); and 3) pragmatic (state creates law and is bound by it). The most rational solution can only be achieved when state and law cooperate in a mutually beneficial way, which is the usual way.

6.3. Rule of Law State: Essence and Principles Rule of law is a manner of organisation of political power which creates conditions for fullest enforcement of citizens’ rights and freedoms and for consistent binding of state authority by law so that the former does not abuse its power. To sum up, the essence of a rule of law state is based on two primary aspects: 1) enforcement of an individual’s rights, freedoms, and legitimate interests; 2) binding of the state by law. Law limits state’s discretion and does not allow depersonalisation of an individual and its total compelling to state’s will. It is the individual’s rights and freedoms set forth in laws that balance the state authority hindering its abuse by bureaucratic apparatus. Individuals, their life and freedom are the core of the political system and its primary landmark. Apart from the abovesaid, a rule of law state can be characterised by the following principles: — separation of power into the legislative, the executive, and the judiciary (the legislative is elected by the people and is designed to work out a strategy of social development through laws; the executive deals with enforcement of laws and economic activity; the judiciary delivers justice, sees for recovery of violated rights and punishment of wrongdoers. The essence of the separation of powers principle is the system of checks and balances, rather than formal self-sufficiency of governmental agencies); — federalism (so-called vertical separation of authority between federal and regional governmental agencies is an additional element in the

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system of checks and balances. If this mechanism is in place, various state agencies and branches will control one another and hinder abuse of power. However, it does not mean that unitary states cannot be called rule of law states); — supremacy of law (law is equally binding upon citizens and state agencies); — equality before law and court; — mutual liability of state and individual; — high level of legal awareness and legal culture in the society; — existence of civil society and its control over the enforcement of laws by all legal subjects; — operation of the principle “what is not forbidden by law, is permitted”; — openness of government’s activity; — freedom of speech and political pluralism. In a rule of law state, both the state and the individual are equal legal subjects.

6.4. Civil Society: Definition, Characteristics, and Structure The term “civil society”, just like the idea of rule of law, took centuries to be formed by such philosophers as Aristotle, Cicero, Hobbes, Locke, Hegel, Marx, and many others. There are several similar definitions of civil society. Civil society is a complex of socioeconomic, moral, religious, national, family relations and institutes which serves the interests of individuals and their groups. Civil society can also be briefly defined as a system of non-state organisations, unions, enterprises, institutions, political parties, professional and other unions, other non-governmental bodies which interact with the official authority on egalitarian basis. The essence of civil society which operates relatively independently from the state is the naturally evolving social relations which help cater to individuals’, their groups’ or associations’ needs. It is fairly rightly believed that the state should be accountable to the civil society and should serve it. However, it is motiveless to contradistinguish civil society and state, as well as to believe that the two are absolutely independent. No social relations are possible without the state’s influence and interference. On the one hand, civil society is a solid social sphere which values free will, on the other hand civil society represents relations which the state provides and maintains. There is a number of common ideas and principles underlying any civil society, regardless of the country. They are the following: 1) economic freedom, variety of ownership forms, market relations; 2) unconditional recognition and protection of human and civil rights;

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3) legitimacy and democratic nature of authority; 4) universal equality before law and justice, legal security of an individual; 5) rule of law state which is based on the principle of separation and cooperation of powers; 6) political and ideological pluralism, operation of legal opposition and multi-party system; 7) freedom of expression, speech, and press, independency of mass media; 8) non-interference of state into citizens’ private lives, mutual obligations and liability; 9) peace among classes, partnership, and national amity; 10) efficient social policy which maintains adequate standard of living. One must remember that civil state rises from the citizens and their freedom. Civil society is an open, democratic, anti-totalitarian, self-evolving society which is centered on an individual, a citizen, a person. It is non-compatible with command economy and coercive imposition of styles of life and activity. Free individuals-owners unite for joint catering to their needs and for serving the common good. The elements of civil society (its structure) are: 1) individual; 2) family; 3) school; 4) church; 5) ownership and entrepreneurship; 6) social groups and classes; 7) private life and its warranties; 8) democratic institutions; 9) social unions, political parties, and movements; 10) impartial justice; 11) system of education; 12) free mass media; 13) non-governmental socioeconomic relations, etc. Civil society and rule of law state are interconnected and interdependent institutions which are not identical.

6.5. Legal Awareness and Legal Culture Legal awareness is one of social awareness forms and exists alongside with political, ethical, academic, artistic, philosophic, and other forms of awareness. Legal awareness is a form of consciousness which focuses on law and legal reality. Legal awareness is a system of judgments, ideas, impressions, feelings, emotions, and experiences which relate to operating or desired (hypothetic) law and other legal phenomena. It is about how people understand and perceive law, how they recognize it, and how they would like it ideally.

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Thus, it is obvious that legal awareness embodies two elements making up its structure: 1. legal ideology (a system of legal ideas, opinions, theories, outlooks, and doctrines; perception of law and its influence on social relations, recommendations as to improve the legal system, etc.); 2. legal psychology (experiences, moods, and emotions which people feel towards law and regarding its operation). Legal awareness may be classified as follows: — individual (individual judgments concerning law and approach towards law); — mass (ideas, judgments, and evaluations of the existing legal system based on mere life experience); — professional (judgments, feelings, and beliefs of lawyers based on their expertise); — scientific (ideas, doctrines, and concepts reflecting academic research as to the essence of law and its operation). Law and legal awareness in some way are mutually determined. Legal awareness evolves along with law and depends on its manifestations in the society. In their turn, legal subjects can not ignore the level of legal awareness of the people. Legal culture of an individual is knowledge and understanding of law, as well as acting accordingly. Legal culture of an individual is closely connected with legal awareness and is based thereupon. However, it is wider than legal awareness, since legal culture involves legally significant behavior apart from psychological and ideological elements. Not every individual who knows and understands legal norms can be deemed legally cultured. An individual possessing legal culture is the one who not only knows legal norms but also has a need to abide by them and conforms to them in their everyday life. Thus, the structure of an individual’s legal culture consists of the following elements: — psychological element (legal psychology); — ideological element (legal ideology); — behavioral aspect (legally significant acts). Legal culture is a part of general culture and is characterised with the state of legitimacy and justice in the society, actual need for law, availability of legal knowledge and expertise, etc.

Test questions and tasks 1. 2. 3. 4.

What is meant under the term “legal status of an individual”? Please name common features and differences between state and law. How are rule of law and civil society related? What is the difference between legal awareness and legal culture?

Chapter 7. NORM OF LAW. FORMS (SOURCES) OF LAW 7.1. Definition and Characteristics of a Norm of Law Law is a complex or a system of legal norms, rules of conduct applicable to a wide range of persons and situations and operating for a relatively long period of time. Norm of law (legal norm) is one of the most important types of social norms — it operates jointly with the latter (such as morals, religious and ethical norms, etc.). However, a legal norm has its unique features. For instance, it sets a standard of legality of subjects’ behavior, and this standard is quite distinct and clear. Norm of law is a model of behavior and it clearly defines the boundaries of allowed and obligatory actions in various situations, thereby securing one’s boundaries of freedom. Norms are designed to fix, encourage and protect those relations that are required and desired by the society and the state and discourage, confine those relations that are undesirable for the society. Thus, a norm of law is a universally binding, formally defined rule of behavior set or sanctioned by the state and directed at regulation of social relations. Legal norm is a primary cell of law, basic element of its system. It is natural therefore that this norm possesses characteristics of law as a special social phenomenon. The following is qualified as characteristics of norm of law: 1) general binding nature — a norm of law is universally binding on its addressees. The generally binding character is enforced by the power of state. Alongside with that, a norm of law is an impersonal rule of behavior which applies to the majority of life situations and to a wide range of persons; the state addresses the norm of law to all persons and entities, not to certain individuals. In other words, norm of law always has its addressee — a certain group of persons, a category of citizens (judges, students, retired, shareholders, investment companies, agricultural manufacturers), but a rule of law never identifies anyone out of that group, i.e. a norm of law can never contain obligatory instruction exclusively for Mr. Ivanov or Mr. Petrov. 2) formal certainty — a norm of law is expressed in a certain form as prescribed by state (as a rule, in writing) in official documents, so that the norm clearly defines the boundaries of subjects’ actions;

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3) connection with the state — a norm of law is set forth by state agencies or social organisations (provided that the latter do not contradict the law) and is enforced by state’s power — coercion, punishment, encouragement; 4) granting-binding nature — a norm of law is an imperious instruction by state indicating allowed and obligatory behavior. A norm of law is a bilateral rule which, on the one hand, grants rights to some subjects and, on the other hand, imposes obligations on other subjects, since no rights can be enforced without obligations, and vice versa. The granting-binding nature allows to cater to the authorised subjects’ interests through the obligated subjects’ actions. Consequently, subjective rights and legal obligations set forth in a legal norm match each other: the performance of one party’s obligations leads to enjoyment of rights by the other party. Alongside with that, the granting-binding nature is not expressed in the same way in all legal norms. For instance, in protective, declarative, definitive norms this nature is hardly expressed, since their tasks are different. 5) microsystem feature — a norm of law acts as a special microsystem which encompasses three interrelated elements: hypothesis, disposition, and sanction.

7.2. Structure of a Norm of Law Structure of a norm of law is its internal composition, the existence of interrelated elements. The structure of a norm of law is an ordered unity of necessary elements which provide its functional sufficiency. A norm of law consists of three interdependent elements. 1. Hypothesis is an element of a norm of law which indicates the prerequisites to its operation (time, location, parties) which are defined through legal facts. Thus, hypothesis is indication in the norm of law when, where, to whom and on what conditions the norm is applicable. 2. Disposition is an element of a norm of law which defines the model of subjects’ behavior by setting forth rights and obligations which arise when legal facts indicated in the hypothesis are in place; disposition operates as the primary regulating element of the norm, as its core. Essentially, disposition is the rule of behavior, the definition of what is demanded from the subjects and what their behavior should be, in each given situation. However, disposition should not be equalised to the norm of law. One must remember that it is a part of legal prescription. 3. Sanction is an element of a norm of law which sets forth the consequences for a subject carrying out the disposition. Sanctions may be negative, unfavorable (measures of punishment) and positive (measures of encouragement). The above named elements of a norm of law are interconnected and may be represented as the following logical chain: “if (hypothesis) — then (disposition) — otherwise (sanction)”.

7.3. Classification of Norms of Law Classification allows precise definition of the place and role of legal norms in the legal regulation system, as well as deep understanding of their nature and designation.

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The following types of legal norms are distinguished: 1) based upon the content: — source norms which determine the basics of legal regulation of social relations, its purposes, tasks, boundaries, and directions (for instance, declarative norms which declare principles, and definitive norms which define certain legal terms, etc.); — general norms incidental to the majority of branches of law and applicable to the majority of its institutions; — special norms relating to specific institutions of a branch of law and regulating a certain kind of social relations based on their peculiarities (these norms detalize common conditions and modify timeframes of their implementation); 2) based upon the subject matter of legal regulation (depending on the branch of law) — constitutional, civil, administrative, land, etc.; 3) based upon their nature — substantive (criminal, land, ecological, etc.) and procedural (criminal procedure, civil procedure); 4) based upon the method of legal regulation: — imperative (containing authoritative orders); — dispositive (allowing discretion); — encouraging (stimulating socially useful behavior); — advisory (offering the most tolerable option of behavior for state and society); 5) based upon scope in time — permanent (set forth by laws) and temporary (Presidential decree imposing a state of emergency due to natural disaster); 6) based upon scope of action — federal (operating at the whole territory of a state, for instance, norms of Criminal Execution Code of the Russian Federation), regional (operating at the territories of regions — in republics and regions etc.), municipal (adopted by the municipal authorities), and local (operating at the territory of certain enterprise, organisation, or institution); 7) based upon legal force — legal norms of laws and regulations; 8) based upon the manner of legal regulation — enabling (giving the opportunity to perform certain actions, e.g. accept a will, demand performance of obligations), obliging (prescribing to perform certain positive actions, e.g. pay damages, pay rent, return books to the library), and prohibiting (disallowing certain actions, e.g. breaking traffic rules, committing larceny), etc.

7.4. Definition and Types of Forms (Sources) of Law Formal certainty is one of characteristics of law. Legal norms should be exteriorised and set forth in a respective official act. They should be embodied in certain forms which are their forms of life. Without this feature, norms of law cannot perform their task of regulating social relations. Without this feature, people will be unable to distinguish a legal norm from any other social norm.

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Consequently, forms of law are a manner of exteriorising state’s will, formal rules of behavior, a manner of laying down these rules. Before analyzing the various forms of law, one should study the relation between the terms “form of law” and “source of law”. If one relies upon the common meaning of the word “source” as of “any inception or basis, root or reason, starting point or origin”, then for legal purposes, three factors comprise the source of law: 1) source in the substantive meaning (material living conditions, peoples’ interests and needs which lead to origin and existence of law); 2) source in the ideological meaning (legal theories and doctrines, legal awareness, etc.). One must take into account that the way we see and perceive law is in a large part determined by the legal doctrine of the state, by the existing system of mindset, and by the respective ideology; 3) source in the formal legal sense which is at the same time the form of law, i.e. the way the law is institutionalised and established in the society. There are four primary forms of law. 1. Normative act is an act containing norms of law and aimed at regulating certain social relations (the Constitution, laws, regulations, etc.). Normative act is one of the most common and perfect forms of modern continental law (in Germany, France, Italy, Russia, and many other countries). 2. Legal custom is a historically established rule of behavior which is fixed in people’s consciousness and leads to legal consequences. Russian legal system acknowledges legal custom, but its role is not too significant. 3. Legal precedent is a judicial or administrative decision with regard to a specific legal case. Said decision has the same legal force as a norm of law, and it determines future decisions with regard to analogous cases. This form of law is widespread in the countries of common law. Court reports are published in those countries, where one can obtain all the information about the precedents. The acknowledgment of legal precedent as a source of law means the acknowledgment of courts’ lawmaking function (this form of law is common for England, the USA, Canada, New Zealand, etc.). 4. Lawmaking treaty is a contract between lawmaking entities, which results in creating a new norm of law. Nowadays, the significance of such treaties in the Russian Federation is increasing. They are becoming widespread in constitutional, labour, civil, administrative, and other branches of law (e.g., a collective labour agreement). As opposed to civil and other contracts (deals), lawmaking treaties are not individually binding, but create a norm of law designed for multiple application.

7.5. Normative Acts: Definition and Types Normative act is a legal act adopted by the entitled entity and containing legal norms, i.e. universal and perpetual rules.

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Normative acts are only issued by entities with respective lawmaking authority, and are made in strict form. A normative act is an official document, an instrument setting forth legally significant information. One must distinguish a normative act from other written documents which are binding on its parties (e.g., court rulings which are only binding upon the parties to the matter, or civil contracts, etc.). All normative acts can be classified based on their legal force: laws and regulations. Law is a normative act adopted by a lawmaking state authority or at a referendum. A law is a document of highest legal power and regulates the most crucial social relations. Characteristics of a law: 1) it is adopted by a legislative agency or at a referendum; 2) the manner of its preparation and enactment is determined by the Constitution of the Russian Federation and by other official documents; 3) ideally, it should express the will and interests of the people; 4) it possesses the highest legal power; all regulations must conform to it and not contradict it; 5) it regulates the most important, key social relations. These features characterize law in the system of normative acts, distinguish law in the system of other normative acts and assign it the quality of supremacy. The only authority which can change or cancel a law is the authority that adopted the law, and in accordance with strictly established procedure. Types of laws: 1) the Constitution (fundamental, prevailing political-legal act setting forth constitutional order, human rights and freedoms, defining the form of government and state structure, establishing federal governmental agencies); 2) federal constitutional laws (they are adopted to address matters set forth in the Constitution and are organically bound with it); 3) federal laws (current legislation regulating various spheres of social life); 4) laws of the subjects of the Russian Federation (they are adopted by the respective representative (legislative) agencies and apply to the respective subject’s territory only. Regulations are acts adopted on the basis and in pursuance of laws. Regulations also contain legal norms. The legal power of regulations is lower than that of laws. However, although the latter play the most important role in the governance of social relations, regulations are still significant due to their accessory function. These are the types of regulations, sorted by hierarchy: 1) decrees of the President of the Russian Federation. These are binding on the territory of the Russian Federation, they must not contradict the Constitution and federal laws. Presidential decrees are prepared within the presidential authority as provided for by constitutional and statutory norms.

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2) regulations of the Government of the Russian Federation. These are binding on the territory of the Russian Federation. Their special feature is that they may be adopted on the basis and in pursuance of laws and presidential decrees. 3) orders, instructions, charters, and policies of ministries. These acts are adopted on the basis and in pursuance of laws, presidential decrees, and governmental regulations. They govern social relations within the scope of authority of a particular ministry. 4) decisions, regulations, and orders of agencies of the subjects of the Russian Federation (e.g., territorial or regional administrations, governors, etc.); 5) normative acts of local authorities. These acts are adopted within the scope of authority of the respective agencies and are binding at the territory of cities, districts, rural communities, etc.; 6) local normative acts. These are rules adopted at the level of particular enterprises or organisations and governing the internal affairs (e.g., internal labour rules, various corporate norms, etc.). Besides, normative acts may be classified based on other criteria. Depending on the peculiarities of legal status of the lawmaking body, all normative acts are divided into: — acts of state agencies; — acts of other social institutions (municipal bodies, labour unions, companies, partnerships, etc.); — acts of joint nature (adopted by both state agencies and other social institutions); — acts adopted at a referendum. Depending on their scope of action, acts are divided into: — federal; — normative acts of the subjects of the Russian Federation; — normative acts of municipal agencies; — local normative acts. Depending on the time frames, acts are divided into: — permanent acts; — temporary acts. One must note that the legal force of normative acts may vary, but they are still binding upon all parties to legal relations.

Test questions and tasks 1. 2. 3. 4.

What is understood by granting-binding nature of a legal norm? In what cases can the terms “source of law” and “form of law” be equalised? Please describe the classification of normative acts based on their legal force. What is the difference between a law and a regulation?

Chapter 8. LAW-MAKING AND REALISATION OF LAW 8.1. Definition, Principles, and Types of Law-Making Law-making embodies adopting, amending, and cancelling legal norms. Lawmakers are state agencies, non-governmental structures vested with respective authority, as well as the people (citizens) when adopting laws at referenda. Law-making is a compound element and the final stage of a greater process — law formation (the natural historic process). The essence of law-making lies within transforming individual interests, those of the society and of the state into legal norms, i.e. universally binding legal prescriptions. Law-making is carried out within set procedural norms (provided for in the Constitution, rules of procedure, charters, etc.). The most important features of law-making are as follows: — it is an active, creative acnivity which is exercised or sanctioned by the state; — the result of law-making is legal norms set forth in normative acts (as well as in normative treaties, legal customs, legal precedents); — law-making is a crucial means of governing the society; it forms the strategy of social development and adopts essential rules of conduct; — the level and culture of law-making, along with the quality of normative acts indicate the degree of civilisation and democracy in the society. Law-making is governed by the following principles: — scientific nature (while drafting legal acts one should study the socioeconomic, political, and other situations, objective social needs, etc.); — expertise (lawmakers should be educated and qualified lawyers, managers, economists, etc. However, law sets no certain criteria towards their education or job seniority); — legality (this activity should be based solely on the Constitution of the Russian Federation, other laws and regulations, and in accordance with the established procedure); — democratic nature (it characterizes the degree of citizens’ participation and involvement into this process);

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— transparency (meaning openness and publicity of the law-making process to the society, regular circulation of information); — promptness (meaning the timeliness of adopting normative acts. Law has to promptly react to social changes. The following principle works: “A stitch in time saves nine”). The following types of law-making are distinguished: Based on lawmakers: 1) direct public law-making through a referendum (nation-wide vote on crucial matters of state and social life); 2) law-making of state agencies (e.g., by parliament, government); 3) law-making of certain officials (e.g., by the President, minister); 4) law-making of municipal agencies; 5) local law-making (e.g., by a corporation, enterprise, organisation); 6) law-making of social organisations (e.g., labour unions). Based on the significance: 1) legislative law-making is law-making by legislative (representative) state authority where normative acts of higher legal power are adopted — these are laws, and they are enacted according to a complex procedure; 2) delegated law-making is law-making activity of the executive bodies which is exercised by way of delegation by the parliament. This form of law-making is determined by the need for prompt handling the matter of adopting normative acts within the scope of authority of a representative agency; 3) subordinate law-making means that norms of law are adopted and implemented by entities which are not legislative bodies — by the President, Government, ministries, governors, heads of administrations, heads of enterprises, organisation, and institutions. Not every legal norm needs to be established through legislative law-making. There is a whole spectrum of situations where it is more practicable to adopt legal norms as regulations, normative treaties, and other forms, because subordinate law-making is far more time efficient and far less formalised than law-making.

8.2. Systematisation of Legal Acts: Definition and Types Normative acts are adopted by various agencies in various time periods, in various spatial frames and on various occasions. Said situation is bound to influence the nature of operating laws and regulations, which can sometimes contradict one another. Therefore, in order to regulate social relations, one must organise normative acts and bring them into a respective system. Thus, systematisation is alignment and organisation of normative acts. It is required to ensure that legislation is easy to access and to apply, that obsolete and inefficient legal norms are eliminated, that legal discrepancies are settled, and that gaps in law are filled. The following types of systematisation are distinguished: 1) incorporation is a form of systematisation where normative acts are combined, but their content remains unchanged. The result of incorporation

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is a compilation of normative acts, each of which remains legally valid. Principles of incorporation are as follows: chronological (depending on the time of adoption), topic-based, etc. Incorporation is the simplest way of systematisation. Incorporation can be both official and non-official, the former being, for instance, official gazette of the Russian Federation, the latter being digests of normative acts compiled by branch of law which are issued for academic and educational purposes. 2) consolidation is a form of systematisation where normative acts are combined, their content remains unchanged, but each of the acts becomes legally invalid. With consolidation, normative acts are unified based on their relevance to a certain type of activity (nature protection, education, etc.). Consolidation is special because it represents “compromised” systematisation, meaning that it combines the features of both incorporation and codification. Consolidation is often employed as an interim measure where codification appears impossible. 3) codification is a form of systematisation by way of combining normative acts into one logically integral act, where their content is changed. Codification presumes elimination of obsolete legal material, discrepancies between norms. New rules of conduct are created, and they are uniform and logical. Therefore, codification is a manner of law-making and the most complex type of systematisation. Codification means refining norms of law based on their content into a systematised and academically determined summary in a new law (code, restatement of laws, rules, regulations, etc.). Specific features of codification: first, only respective agencies are entitled to carry it out; second, the result is a new normative act — a code; and third, a codified act operates as the primary one among all other acts in the given sphere. Currently, electronic systems of classification are becoming increasingly popular, which provide legal awareness of all interested individuals. Establishment of automated search engines is undoubtedly more advantageous than traditional systems of record keeping. Electronic systems can embody almost unlimited amount of normative information (legislation of various countries, bills, court decisions, etc.), which can be retrieved at any time in no time.

8.3. Realisation of Law: Definition and Forms Law is created to be exteriorised and to help achieve the objectives which the lawmaker meant to be achieved. Mere adopting of numerous legal norms cannot possibly have the desired social effect — one must pursue actual substantiation and virtual influence onto governed relations. Realisation of law means the process of implementation of legal prescription in individuals’, agencies’, organisations’, enterprises’, officials’, and other actors’ rightful actions. Realisation of law is impossible outside social relations. One can enjoy perfect legislation, fair laws, but if these are not perceived and enforced, they turn into a corpus of wishful thinking; lawmakers’ efforts will be cancelled out. Law is at its best when it actually operates.

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Realisation of law is transformation of legal prescriptions into rightful conduct. If this does not take place, the state finds itself unable to provide stability and order in the society. There are four primary forms of realisation of law. 1) Adherence to law, which is a type of rightful conduct where individuals refrain from committing offenses, in other words, they adhere to the norms of law. Adherence to law is the simplest form of substantiation of law which is carried out through individuals’ passive conduct and abidance by legal bans (individual “merely” does not break any legal bans: they do not kill or steal or abuse authority). 2) Fulfillment of law. Individuals perform their obligations, functions, and powers, thereby fulfilling respective legal norms. Fulfillment of law is related to binding norms and presumes active conduct. This form of realisation of law is characterised by imperativeness and mandatory nature, since non-performance of legal prescriptions leads to imposition of penalties (obligations including paying taxes, doing military service, attending as witness, etc.). 3) Enjoyment of law. Individuals at their sole discretion and will enjoy granted rights and possibilities and satisfy their legitimate interests. No one can coerce a citizen to enjoy their right. Here, permissive rules are substantiated (individual votes, uses their vacation, gets married, quits a job, etc.). 4) Enforcement of law which is a special form of realisation of law, since it is related to commanding actions of justice authorities and officials. They act on behalf of the state and perform the functions and authority which they are vested with. This is one of the forms of state activity aimed at carrying out legal prescriptions. Enforcement of law is required when individuals are unable to enforce their rights and perform their obligations without state’s interference or coercion. Legal norms need to be enforced in the following circumstances: 1) where an offense is committed, and a penalty must be imposed onto the wrongdoer to hold them liable; 2) where an obligation is not performed voluntarily (repayment of debt, payment of fines, taxes, adherence to terms of contract); 3) where an obstacle exists to enjoyment of one’s right (e.g., an individual is entitled to enter the premises but is unable to because it is arbitrarily occupied by another); 4) where a legal issue exists, and parties are unable to settle (division of property, taking custody of children, estate issues); 5) where legally significant actions should be controlled by the state in order to ensure their rightfulness, legality, and authenticity (registration of a will by the notary public); 6) where certain rights and obligations cannot arise from individuals’ unilateral actions, and a competent authority should issue an act of enforce-

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ment of law (recommendation for a reward, admission to pension, entry into service, job transfer, receipt of award); 7) where law prescribes to officially (sometimes via court proceeding) establish the existence or lack of some fact, event, or state (e.g., declaration of an individual to be missing or presumed dead; acquisition or loss of citizenship). As a result of enforcement of law, a competent state agency adopts a respective legal act containing an individually binding legal prescription. This act is of mandatory nature but is not a normative act. As opposed to a normative act, an act of enforcement of law is adopted based on a normative act and elaborates the legal norm set forth in such normative act, adjusting it to the individual situation. An act of enforcement of law is personified.

Test questions and tasks 1. 2. 3. 4.

Who are lawmakers? What is the difference between law-making and law formation? Please list the primary manners of legislative systematisation. What is the difference between enforcement of law and other forms of its realisation?

Chapter 9. LEGAL OFFENCE AND LEGAL LIABILITY 9.1. Definition, Characteristics and Types of Legal Offence A legal offence is a culpable, punishable, socially harmful violation of law of a sane person which inflicts damage to the interests of a person, society and state. Not any violation of law is a legal offence, since the latter must be a result of a person’s free will, i.e. culpable. E.g, a wrongdoing committed by an infant, or a mentally disabled person, or any other person without legal capacity, is not a legal offence and therefore does not give rise to legal liability. A legal offence has several compulsory characteristics (elements) forming its corpus delicti. Thus, a corpus delicti is a system of elements of legal offence, which are necessary and sufficient for imposing legal liability. Determining a corpus delicti is required for legal qualification of a deed. If corpus delicti is in place, it gives rise to legal liability of a person. If at least one element of corpus delicti is missing, it is not complete, and therefore there is no legitimate ground for initiation of proceedings and holding the respective person accountable. It is notable that many criminal cases fail to materialise due to lack of corpus delicti. Corpus delicti has four elements: 1) object of offence; 2) offender; 3) actus reus (guilty act) — which is called in Russia “objective element”; 4) mens rea (offender’s state of mind) — which is called in Russia “subjective element”. Object of offence is the object that the offence (and offender) inflicts damage to. Objects may be general and special, or concrete. A general object is legal order, interests of public policy and society, social and political order (regime), other relations which exist in a given society. Special objects are the goods, benefits, valueable items (life, reputation, health, property, ownership rights, security, etc.). Any legal offence causes injury to both general and specific objects.

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Offender is a person or entity with legal capability which has committed an offence. Infants and mentally disabled persons may not be offenders, since they may not be criminally or tortially liable. The same applies to the state of insanity. It is a considered that an individual begins to fully realise the magnitude and consequences of his or her actions only once he or she is 16 years old. Only in some specific cases when a deed is clearly a wrondgoing (which applies to severe crimes) a 14-year-old individual may be held leable for his or her actions. Actus reus (objective element) of a legal offence encompasses its external characteristics and answers the question: what happened, where, when and how. Actus reus includes: а) Wilful deed in the form of either act or inaction (omission). An act is characterised by active will of the perpetrator (e.g. theft, burglary, robbery, vandalism, etc.) An inaction (omission) is characterised by passiveness (failure to provide medical treatment, non-payment of taxes, absence from court). A person may have any thoughts he likes, but he or she may not behave in any way that he or she desires. Legal liability, therefore, arises out of acts, but never — thoughts. b) Unlawfullness means that an act or omission violates the law, i. e. a certain legal provision. Unless it violates the law, even the most dangerous act may not be declared unlawful, and therefore punishable (e.g. a surgeon performing a complicated surgery creates danger with his actions, but they are lawful and not contrary to any legal norm); c) Damage, harmful effect, social danger. Without such consequences an act is not considered an offence. See Section 2 Article 14 of the Russian Criminal Code: “The commission of an act, or inaction, although formally containing the indicia of any act provided for by this Code, but which, by reason of its insignificance, does not represent a social danger, which caused no harm and has not created a threat of damage to a person, society, or the state, shall not be deemed a crime”. d) Direct causal link between the act/inaction (omission) and its consequences. An indirect causality does not constitute an offence and does not give rise to legal liability. E.g. a doctor prescribed someone medication. The nurse contaminated the vaccine with a contageious infection which spread to the patient’s body leading to his death. The nurse shall bear liability, but not the doctor, although without his prescription there would probably be no contagion and death. Here, there is a causal link, but only an indirect one. In order to fully characterise the actus reus (objective element), some other optional indicia and conditions may be analysed: time, place, methods of committing an act. Mens rea (subjective element) is a combination of indicia which determine the subjective attutude of the person towards his or her deed and its consequences.

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Mens rea includes goals, motives, mindset of the perpetrator which he had while planning and committing his misdeed. All this demonstrates antisocial tendencies of the offender and illustrates a socio-psychological mechanism of committing the punishable act. Mens rea also includes a conspiracy, greedy motives, strong mental disturbance, perpetrator’s behaviour after the crime has been committed. It is important to answer the following questions: what does the offender think about the act, what were its reasons? The main concern here is not about what happened, but why. All the above is denoted by the notion of “guilt” or “culpability” (state of mind of the offender, attitude towards the misdeed committed). Offences may be characterised on the basis of culpability as: 1) wilful; 2) negligent. A wilful offence may be characterised by either direct or indirect intent. Negligent culpability is also classified into two types: a) criminal presumption, or reckless misconduct; b) criminal negligence. Direct intent is present when the offender contemplates the harmful effects of his actions, foresees the possibility or inevitability of such effects and intends to cause such damage. Indirect intent is present when the offender contemplates the harmful effects of his actions, foresees the possibility or inevitability of such effects and does not desire to cause such damage, but lets them happen or connives with them. Reckless misconduct is present when a person foresees the possibility of socially harmful effects of his actions, but, without sufficient justification recklessly counts on preventing or avoiding them. Negligence is present when the offender did not foresee the possibility of socially harmful effects of his actions, although he should and could have done it if he had exercised due precautions and paid attention to them. Legal offences, depending on the degree of their social danger, are classified into crimes and misdemeanours. Crimes, the list of which is provided in the Criminal Code, are particularly dangerous and detrimental for the society. They infringe on the most important social benefits and lead to the strictest sanctions (penalties) — e.g. imprisonment, life sentence. Misdemeanours and their consequences are less dangerous by their nature than crimes. They are not subject to the regulation of criminal code and are committed not by criminals, but by ordinary citizens in various spheres of economic, business, labour, administrative, cultural, industrial activity, family life, etc. They lead not to criminal penalties, but to other sanctions which are less strict. There are the following types of misdemeanours: 1) civil misdemeanours (unlawfully inflicting damage to personal rights or property of a person or legal entity, violation of contractual obligations, conclusion of an unlawful contract, etc.). Sanctions for such offences include compensation of damages, restitution of rights, a bound over, debt recovery, etc.);

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2) administrative misdemeanours (violation of administrative law provisions which secure the public order, the system of administration, the environment, the historic or cultutal monuments, sanitary and hygienic norms, fire safety, road rules, etc. The typical sanctions are fine, driving ban, divestiture, detainment for fifteen days (for petty hooliganism), community works, hunting ban, etc.); 3) disciplinary misdemeanours (violation of labour, military, student, financial discipline, internal code of conduct, corporate labour policy of various institutions, organisations, government agencies, etc.). The principal sanctions are admonition, admonitory address, deprivation of a bonus, downgrading, and termination of employment); 4) financial misdemeanours (inflicting financial damage to your employing organisation or institution. The main sactions are restituonary: deduction of salary, duty to repair a damage, compensate the price of damaged property, etc.); 5) procedural misdemeanours (failure to appear in court or to appera before a criminal investigator, failure to cooperate in providing physical evidence, etc. The sanction is compulsory process or attachment).

9.2. Notion, Grounds and Types of Legal Liability Legal liability is the neccessity to subject an offender to enforcement measures. Legal liability is always associated with breach of legal norms, laws which are enforced by the powers of state. In practice, legal liability may manifest as undesired (adverse) consequences for the perpetrator: monetary, moral, personal, organisational, physical (imprisonment or restraint, correctional labour, confiscation of property, fine, apprehension, deprivation of right to take certain positions, etc.). The main purpose of legal liability is to ensure the rights and freedoms of persons and to secure and protect public order and polilcy. Legal liability differs from other forms of social liability in the following respects (characteristics): 1) it is envisaged by the legislation in force (criminal, civil, administrative, etc.); 2) it arises out of legal offence when there is a full and complete corpus delicti; 3) it is enforced by the state; 4) it manifests in certain consequences unfavourable for the offender, deprivation of certain social benefits (freedom, property, other rights, etc.); 5) it is imposed and realised in a certain procedural forms set out by law, while their violation also leads to legal liability; 6) the offender is punished in the name of the state, as opposed to, e.g, moral responsibility, the source of which is the society and not the state apparatus; 7) it is exercised by authorised state bodies and officials under a strictly determined procedure within their competence only.

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The main types of legal liability are: 1) criminal; 2) civil; 3) administrative; 4) disciplinary; 5) financial; 6) procedural; 7) constitutional. The main principles of legal liability include: 1) the principle of legality (liability should be imposed and realised within the frames established by the law, no discretion or arbitrary treatment should be allowed); 2) the principle of justifiability (liability should be a result of an offence); 3) the principle of inevitability (no offence should go unpunished); 4) the principle of fairness (the punishment should correspond to the gravity of the misdeed, circumstances under which it was committed and the offender’s state of mind, noone should be persecuted twice for one and the same; everyone should be equal in the eyes of the law); 5) the principle of humanism (penalty’s aim is not to inflict physical suffering or humiliate the offender’s dignity); 6) the principle “benefit of the doubt” (everyone is presumed innocent until otherwise is proven in court).

Test questions and tasks 1. What is the corpus delicti and what are its elements? 2. Please name forms of mens rea. 3. What is the difference between a crime and a misdemeanour? Please name types of misdemenours. 4. Please name the general characteristics and principles of legal liability.

Chapter 10. SYSTEM OF RUSSIAN LAW 10.1. Definition and Structural Elements of a System of Law A system of law is its internal structure (composition, organisation) which is built up as an objective reflection of existing and developing social relations. A system of law shows which parts and elements law is made up of and how they are related to each other. The structural elements of a system of law are: a) norm of law; b) sub-institution of law; c) institution of law; d) sub-branch of law; e) branch of law. Norm of law is the primary element of a system of law. It is a universally binding rule of conduct established or sanctioned by the state. An institution of law is a relatively small and stable group of legal norms which govern a certain type of social relations (institution of justifiable defense, statute of limitations, gift, transaction, sale, marriage, etc.). These institutions operate in close interrelation. A complex legal institution, being a larger formation, consists of smaller sub-institutions. For instance, the institution of municipal finances includes the institution of municipal budget, taxes, fees, etc. A branch of law is an isolated system of homogenous legal norms which govern a certain area (sphere) of social relations (constitutional law, criminal law, and civil law). The following conditions matter to determine whether a branch of law exists: a) the degree of distinctiveness of certain relations; b) their relative share; c) the impossibility of governing these relations with norms of other branches of law; d) the necessity to apply a specific method of regulation. A branch of law is not “made up”, but it originates from social and practical needs. Despite the fact that branches of law are organically interrelated, they are not equal in their significance, volume, and role in influencing social relations. This phenomenon takes place due to the unequal broadness and composition of various social relations. Therefore, larger branches of law are divided into sub-branches, for instance, copyright, patent, housing, and inheritance law in civil law; electoral law in constitutional law; mining, water use, and forest law in land law, etc.

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Two criteria underlie the division of law into branches and institutions: subject matter and method of legal regulation. Subject matter is the certain types of social relations regulated by law. Subject matter includes all that which is covered by legal norms. In other words, it is the sphere covered and governed by law. Method represents certain ways, manners, and means with which law influences social relations. Method answers the question how law performs its regulatory function. Method in large part predetermines the efficiency of legal regulation and achievement of set objectives. Subject matter is the chief, the material criterion of dividing law into branches, since it is objectively rich in content and determined by the very nature of social relations. Method acts as the supplementary criterion which is derived from the subject matter. Method is not significant per se, but in conjunction with the subject matter it promotes more exact gradation of law into branches and institutions.

10.2. Brief Description of Primary Branches of Russian Law Legal branches are the primary units of system of law, governing large spheres (areas) of social relations. These should be characterised briefly. 1. Constitutional law. A leading branch of Russian law defined as a body of legal norms and institutions attending to the crucial state relations. They include formation and structure of the representative, the executive, and the judicial powers, principles of their operation, political system, economic foundation, forms of property, federative system, administrative territorial structure, electoral system, citizens’ legal status, their rights, freedoms, and obligations, fabric of the society, etc. The key normative act in constitutional law is, naturally, the Constitution of the state, as the foundation of all current law-making. It is the subject matter of this branch. The method is described as constitutive-consolidating, combined with general (basic) governance. 2. Civil law. The largest branch of law governing a broad area of property and personal non-property relations (name, goodwill, dignity, authorship). The whole stream of commerce, economic activity of enterprises, organisations, and institutions (possession, use, and disposition of property, buying and selling, donating, inheriting, leasing, lien, transporting, shipment of raw material) are regulated by civil law. However, not all of property relations are governed by civil law, but only those parties to which are legally equal (plaintiff — defendant; debtor — creditor; client — contractor) and which are not based on the principle of authority (as, for instance, the case is for administrative, financial, or land law). The latter also govern property relations somehow, but use different methods. Due to its breadth and complexity, civil law as a branch of law has numerous sub-branches: inheritance (probate) law, invention law, patent law, housing

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law, transportation law, etc. The primary normative act is the Civil Code of the Russian Federation. The significance of civil law increases as market relations evolve. The primary method is dispositive. 3. Civil procedure law. Represents a body of norms governing the operation of the judiciary and parties to a proceeding in civil, labour, family, personal, financial, and other disputes. This branch also includes norms governing the operation of Arbitrazh (commercial) courts and notary public. The primary normative acts are the Civil Procedure Code of the Russian Federation and the Arbitrazh Procedure Code of the Russian Federation. 4. Criminal law. Represents a body of norms determining which socially harmful deeds shall be punishable and considered as crimes; powers of competent authorities towards wrongdoers, grounds and conditions for imposing criminal liability, corpus delicti, actus reus, forms and degree of mens rea, etc. The primary normative act is the Criminal Code of the Russian Federation. Method of governance –is imperative-prohibitive. 5. Criminal-executive (correctional) law. It involves norms regulating the course of serving sentence by those found guilty by court, and operation of respective state authorities and agencies in correctional education of criminals. The method of governance is education and encouragement combined with imperious-coercive method. The primary normative act is the Correctional (Penal Execution) Code of the Russian Federation. 6. Criminal procedure law. This branch of law governs the operation of court, prosecutor’s office, investigation and law enforcement bodies, defines procedural forms of investigating and solving crimes, rights and obligations of its participants (party charged with the crime, witnesses, experts, the injured party, counsels for the defense and for the prosecution), and their legal status. The primary normative act is the Criminal Procedure Code. Main methods of governance are the imperative and the method of procedural equality of parties. 7. Administrative law. It governs the sphere of regulatory, administrative, and executive activity of state agencies, social organisations, and officials (the government, ministries, presidential offices, enterprises, municipal administrations). The actors in this field are vested with the necessary authority. The objects of administration are: economy, education, health care, human rights protection, etc. The primary method is coercion, imperative orders, instructions, hierarchy and subordination, personal responsibility for the entrusted location. 8. Municipal law. It is a complex branch of Russian law which is a body of legal norms governing social relations in the course of organisation of municipal governance and solving local matters by population directly or through representative bodies. Methods of legal governance are authorisation and prohibition. 9. Financial law. Subject matter of this branch is composed by financial relations, formation and administration of the state budget, money flows, bank operations, loans, and taxes. The actors in these relations are represented by all legal entities and individuals. Methods of governance are control, audit,

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and imperative prescriptions. However, as market economy develops further, the method becomes increasingly dispositive. 10. Land law. This branch is designed to govern the matters of land–use and land-utilisation, maintenance and distribution of the land fund, definition of various legal regimes for various types of land according to their administrative and economic purpose (state, kolkhoz (communal), sovkhoz (state-owned), farm, leased, municipal, and other categories of land). The sub-branches are: forest law, water use, and mining law. The primary normative act is the Land Code of the Russian Federation. Methods of governance are permissions, authorisations, and prohibitions. 11. Labour law. The subject matter of this branch is the sphere of labour relations (forms of rational labour organisation, its evaluation and remuneration, setting occupational and salary rates; hiring and firing; manner of entering into collective agreements). The actors in labour relations are workers and employees, state, social, and cooperative organisations, and labour unions. Methods of governance are encouragement, stimulation, and enactment of respective agreements. 12. Family law. This branch is closely connected to civil law. Nevertheless, it is distinguished as a separate branch governing the manner of entering into and dissolving marriage, relations between spouses, parents and children, matters of foster care, adoption, and curatorship, property status of family members, and their mutual rights and obligations. The primary normative act is the Family Code of the Russian Federation. The leading methods are the method of equality of parties and the dispositive method. 13. International law. Strictly speaking, it is detached from national systems of law, therefore none of the states can deem it theirs. International law occupies a special (supranational) position, due to the fact that it governs international, and not intra-national relations. It expresses the collective will of nations, which are its actors. Its norms and institutions are set forth in various international treaties, charters, conventions, declarations, and UN documents. These acts list mutual rights and obligations of the states as actors on the international stage, the principles of their communication and conduct. Russia recognised the priority of international law over the national, especially in the human rights sphere. The Russian Constitution envisages that universally recognised norms of international law and international treaties of the Russian Federation shall be a component of its legal system. Scholars also define the following branches of law: commercial, ecological, military, trade, prosecutor’s supervision law and other branches combining the various norms and institutions governing complex relations.

Test questions and tasks: 1. What is the difference between the terms “legal system” and “system of law”? 2. Please list the primary structural elements of a system of law. 3. Please briefly characterize the key branches of Russian law.

PA RT 2 . BASICS OF CONSTITUTIONAL LAW Chapter 11. CONSTITUTIONAL LAW OF THE RUSSIAN FEDERATION. BASICS OF CONSTITUTIONAL ORDER OF THE RUSSIAN FEDERATION 11.1. Constitutional Law of the Russian Federation as a Branch of Law: General Description Constitutional law is the backbone branch of Russian law. It includes legal norms which set forth and provide for the primary human rights and freedoms and establish a certain system of government bodies to this end. The evolution of constitutional law as a branch of law illustrates democratisation of the state, actual efforts to maintain the necessary balance between freedom and authority, since if the former “finds itself outside of stable statehood, it can degenerate into anarchy and overindulgence, and if statehood is based on denial of freedom, an individual is burdened with totalitarian chains”1. Thus, one may conclude that the main meaning of constitutional law is finding the balance of authority and freedom in the society to ensure its well-balanced development. Constitutional law establishes clear framework for various conflicting political powers, it creates just principles for carrying out political authority, thereby creating prerequisites for maintaining civil peace and accord. Thus, constitutional law is a unique form of constituting democracy in the society. Subject matter of constitutional law encompasses two aspects: — establishment and protection of human rights and freedoms, relations between individual and the state (constitutional law contains basic norms concerning an individual’s legal status, their freedoms and boundaries thereto, and obligations); 1

Baglay M.V. Constitutional Law of the Russian Federation. Textbook. M., 2009. P. 15.

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— constitution of state and its authority (not only does constitutional law set forth the basic political structures, but it also determines their relationships, legal mechanisms of coherent and efficient cooperation among all state authorities). Method of constitutional law is a corpus of manners and ways of legal influence onto social relations constituting the subject matter of constitutional law. The basic methods are imperative (this method allows no discretion at the part of an individual) and dispositive (this method leaves discretion to an individual as to whether to enjoy or refrain from enjoying the rights and to choose the optimal conduct). The source of constitutional law is a certain form through which norms of constitutional law are expressed. One believes that the sources of constitutional law can be either written or non-written and include natural, as well as positive law. Natural law is a sum of rights and freedoms which have been historically recognised as indispensable, independent from the will of state and its rulers, such rights and freedoms not being a gift, but rather a foundation of normal existence and operation of any community of people. “The state is bound with these primary ethical and rational imperatives and must recognise, observe, and warranty these”1. One must admit that in many civilised states, natural law is reflected in positive law (coming from the state). In Russia, for instance, the concept of natural rights is set forth in section 2 Article 17 of the Constitution, which declares that “fundamental human rights and freedoms are inalienable and shall be enjoyed by everyone since the day of birth”. The sources of positive constitutional law include: 1) the Constitution of the Russian Federation (adopted at national voting on December 12, 1993) and Constitutions of Republics which are part of the Russian Federation), charters of other constituent entities (subjects) of the Russian Federation; 2) federal constitutional laws (all of which are sources of constitutional law) and federal laws (those which govern the application of human rights and freedoms, system of state authority); 3) treaties and agreements: international (entered into by and between the Russian Federation and other states) and internal (entered into by and between the Federation and its territories); 4) declarations; 5) rules of the chambers of the Federal Assembly of the Russian Federation; rules of the legislative (representative) bodies of subjects of the Russian Federation; 6) normative decrees and orders issued by the President of the Russian Federation, acts of higher officials of subjects of the Russian Federation; 1

Baglay M.V. Op cit. P. 31

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7) normative regulations and decrees of the Government of the Russian Federation, executive bodies of subjects of the Russian Federation; 8) court decisions (resolutions of the Constitutional court of the Russian Federation, decisions of the Supreme court of the Russian Federation related to constitutional rights and freedoms, as well as clarifications in court practice); 9) legal acts of the USSR and RSFSR, which are applicable insofar they do not conflict with the current Constitution; as new laws and other normative acts are adopted, the legal acts of the USSR and RSFSR decrease in number; 10) normative acts of municipal authorities; 11) customs of constitutional law. The system of Russian constitutional law consists of the following instututions: 1) fundamentals of constitutional order; 2) basic rights and freedoms of man and citizen; 3) the federal structure; 4) the electoral system (electoral law); 5) presidential power; 6) legislative power; 7) executive power; 8) state authority of the subjects of the Russian Federation; 9) judiciary power and prosecutor’s office; 10) local self-government; 11) manner of amending and reviewing the Constitution.

11.2. Definition and Legal Features of a Constitution Constitution is a legal document, the foundation of statehood, rule of law, and public order in a given society. Due to its legal nature, a constitution is a political document, too, since it is the foundation of all political processes in the society. A constitution is the fundamental law of a state which is characterised with the highest legal force and provides for the basic rights and freedoms of man and citizen, the system and form of interaction of state authorities. One might say that the constitution sets forth the framework for interaction between an individual, society and the state. A constitution performs the following functions: 1) integrative (constitution is meant to integrate the society and to bring its citizens together based on generally acknowledged values and principles); 2) continuity in the evolution of statehood (constitution envisages continuity of state authority and firmness of statehood and historically forged national unity); 3) maintenance of national sovereignty (it is the constitution that sets forth that the people are the only source of power and that their right to decide their destiny is inalienable); 4) combatting extremism, separatism, and violent forms of social reformations (constitution ensures repression of radicalism, observance of declared rights, and decent life that no antidemocratic revolution can threaten); 5) territorial integrity of the state (constitution must prevent territorial disintegration and must ensure state’s indivisibility and independence at the international stage).

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Basic legal features of a constitution are as follows. 1) Supremacy of constitution (which is expressly declared in section 2 Article 4 of the Constitution of the Russian Federation). Supremacy of constitution means: — subordination and binding character upon the state; — necessary coordination of all subjects’ activities with constitutional norms; — highest legal force, i.e. predominant position in the national system of law. Laws and regulations which are adopted in the Russian Federation must not conflict with the Constitution, and state and municipal authorities, officials, citizens, and their unions must strictly abide by the Constitution and other laws (section 2 Article 15 of the Constitution of the Russian Federation); — direct application of the Constitution set forth in section 1 Article 15 of thereof which means that the concerned individual may apply for judicial relief of their rights, referring to their constitutional wording. 2) Key role in the legal system of a state which does not only mean formal congruence between various normative acts and the Constitution, but also assumes creation of a legal system which would facilitate enforcement of all constitutional norms and declarations and which would provide efficient governance of social relations according to the principles and spirit of the basic law. 3) Special manner of protection, adoption, review, amending, and modifying the Constitution which is established due to the fact that the entire system of state authority is aimed at maintaining supremacy of the Constitution and protecting its norms. A special role is given to the Constitutional Court of the Russian Federation. Almost any state’s legislation envisages elaborate manner of reviewing or amending the constitution. This does not necessarily imply impossibility of reviewing of amending the constitution (see, for instance, Articles 134–137 of the Constitution of the Russian Federation).

11.3. Fundamentals of the Constitutional Order of the Russian Federation One must understand clearly that constitutional order does not merely lie in the existence of constitution or its formal (mechanical) observance. Constitutional order is a special characteristic of social order, whereby the state enforces human rights and freedoms, acting in accordance with a truly democratic constitution. Other definitions of constitutional order are present in academic literature. For instance, in a narrow sense, constitutional order means a way of state organisation which is set forth in its constitution and is further elaborated in current legislation. In a wide sense, constitutional order is a sum of economic, social, political, legal, and ideological relations which arise in connection with organisation (legal furnishing) of higher state

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authorities, state structure, and legal bonds among the state, the society, and the individual1. In any event, to establish constitutional order means to clearly define principles of state organisation with regard to individuals and civil society. Chapter 1 of the Russian Constitution is devoted to the fundamentals of constitutional order and is titled respectively. It consists of 16 chapters, which constitute a certain system and conventionally may be divided into four primary groups. 1. Humanitarian fundamentals of constitutional order. Humanitarian fundamentals of constitutional order underline the most crucial postulate — the state is created to serve the individual, and not vice versa. The state refuses to apply totalitarian approach in governing social relations, whereby an individual is disregarded and deprived of many possibilities to fulfil their potential. The essence of this approach is expressed in Article 2 of the Russian Constitution: “Man, his rights and freedoms are the supreme value. The recognition, observance, and protection of the rights and freedoms of man and citizen shall be the obligation of the state”. All of the following articles of the Constitution and the entire system of normative acts are subordinate to this super-principle. The humanism of the constitutional order is also illustrated by sovereignty of the people. Article 3 of the Constitution of the Russian Federation declares: “1. The bearer of sovereignty and the sole source of power in the Russian Federation shall be its multinational people. 2. The people shall exercise their power directly, as well as through the bodies of state power and municipal self-government. 3. The supreme direct expression of the power of the people shall be referenda and free elections”. People’s sovereignty is the foundation and source of power, and people’s will expressed through constitutional forms is the foundation of any democratic state. 2. Constitutional characteristics of the Russian Federation. Article 1 of the Constitution of the Russian Federation envisages that the Russian Federation is a democratic, federative, rule of law state with republican form of government. Article 7 sets forth that Russia is a social state, and Article 14 declares that it is a secular state. These are the basic constitutional characteristics of Russia as a state. The term “democratic state” emphasizes Russia’s orientation towards creation of a mechanism of authority which is aligned with people’s will and universally acknowledged rights and freedoms. In a democratic state, civil society is developed, as well as representative forms of people’s authority (for greater detail, please see para. 3.4. of the textbook). 1 For greater detail, please see: Malko A.V., Zatonsky V.A. Jurisprudence. Textbook. М., 2014. P. 92.

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State structure of the Russian Federation is based on the principle of federalism, meaning that the state consists of a number of equal subjects — there are currently 85 (for greater detail on federalism, please see para. 3.3 of the textbook). Article 5 of the Constitution of the Russian Federation sets forth that the Russian Federation consists of republics, territories, regions, cities of federal importance, an autonomous region, and autonomous areas — equal subjects of the Russian Federation. Article 5 also prescribes that the federal structure of the Russian Federation is based on its state integrity, the unity of the system of state authority, and the division of powers between the bodies of state power of the Russian Federation and those of the subjects of the Russian Federation (section 3 Article 5). Russia is a rule of law state, i.e. one whose activity is subordinated to law and is aimed at observance of human rights and freedoms (for greater detail on a rule of law state, please see para. 6.3. of the textbook). A social state is one designed to maintain social justice, social welfare, and social security. As opposed to a socialist state, a social state does not strive to make citizens “equally free”. Instead, a social state supports the most vulnerable social groups, creates prerequisites for full employment, and ensures affordability of education and proper medical services. Section 1 Article 7 of the Constitution of the Russian Federation declares that social state’s policy is aimed at creating conditions for a worthy life and free development of people. Labour and health of people are protected, a guaranteed minimum wages are established, state support is ensured to the family, maternity, paternity, and childhood, system of social services is developed, state pensions, allowances, and other social security guarantees are established (section 2 Article 7). Secular state means that: а) no religion may be established as a state or obligatory one (section 1 Article 14); б) religious associations shall be separated from the state and shall be equal before the law (section 2 Article 14). These rules are not universal for all states, even democratic ones. For instance, Great Britain officially declares the predominance of the Anglican church, and Scandinavian states — the predominance of the Lutheran church. Nevertheless, this does not mean that these countries reject freedom of belief. The secular character of the state means that officials of the state are entitled to profess any religion, but are prohibited to grant privileges thereto or to create obstacles to those professing a different religion. The republican form of government (for greater detail, please see para. 3.2. of the textbook) underlines appointment by election of a head of state and replaceability of certain officials. 3. Fundamentals of state authority organisation in Russia The fundamentals of state authority organisation in Russia are, above all, state sovereignty and separation of powers.

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Article 4 of the Constitution declares that “1. The sovereignty of the Russian Federation shall cover the whole of its territory. 2. The Constitution of the Russian Federation and federal laws shall have supremacy in the whole territory of the Russian Federation. 3. The Russian Federation shall ensure the integrity and inviolability of its territory”. State sovereignty is derivative from people’s sovereignty. The former is defined as supremacy and independence of state authority inside the country and in international relations. Thus, the primary features of Russia’s sovereignty are supremacy of state authority (its unboundedness by anything but the Constitution, natural law, and state laws), independence of state authority (it is entitled to enact laws and regulations and rule over its territory), state integrity (separation of territories infringes the Constitution and is inadmissible), and inviolability of its territory. Article 10 of the Constitution underlines that “the state power in the Russian Federation shall be exercised on the basis of its division into legislative, executive, and judicial power. The bodies of legislative, executive, and judicial power shall be independent”. Article 11 provides for the system of federal bodies of state power in the Russian Federation. According to this Article, the state power in the Russian Federation is exercised by the President of the Russian Federation, the Federal Assembly (the Council of the Federation and the State Duma), the Government of the Russian Federation, and the courts of the Russian Federation. State authority in subjects of the Russian Federation is exercised by bodies of state authority created by these subjects. The obvious democratic achievement of modern Russia is recognition of municipal (local) self-governance as a form of exercising people's authority. Article 12 of the Constitution of the Russian Federation indicates that local self-governance shall be recognised and guaranteed. Local self-government is independent within the limits of its authority, and the bodies of local selfgovernment shall not be part of the system of bodies of state authority. 4. Economic and political foundations of constitutional order. The Constitution of the Russian Federation does not expressly contain the term “market economy”, but the analysis of economic foundations of constitutional order leaves no room for doubt that the state safeguards market economy and its primary principles. Pursuant to Article 8 of the Constitution of the Russian Federation, the following are guaranteed: — integrity of economic space; — free flow of goods, services, and financial resources; — support for competition and freedom of economic activity. The most important feature of economic foundation of constitutional order is that in the Russian Federation, recognition and equal protection is given to private, state, municipal, and other forms of ownership (Article 8 of the Constitution of the Russian Federation).

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The Russian state recognises ideological and political pluralism, which is directly connected to one’s right to express their opinion and participate in political activities. Section 2 Article 14 of the Constitution of the Russian Federation underlines that no ideology may be established as state or obligatory. One defines ideology as a system of political, philosophical, and other approaches to social evolution patterns and primary ways of its perfection. Not only does any civilised society set forth ideological pluralism, but it is actually interested in it, since it expands social horizons, creates competition among opinions regarding fair world order, and reveals hidden dangers of various development paths. The principle of ideological pluralism guards the society from stagnation in many spheres of science and art. The logical consequence of ideological diversity is political diversity. Article 13 of the Constitution of the Russian Federation recognises political diversity and pluralism. In democratic states, multi-party and two-party systems can exist, maintaining the required level of political competition in the society. One-party system, however, is an indicium of a totalitarian state. Alongside with that, section 5 of Article 13 of the Constitution of the Russian Federation is aimed at constraining destructive consequences of ideological and political pluralism: “The creation and activities of public associations whose aims and actions are aimed at a forced change of the fundamental principles of the constitutional order and at violating integrity of the Russian Federation, at undermining its security, at setting up armed units, and at instigating social, racial, national, and religious strife shall be prohibited”. All the rules listed in Chapter 1 of the Constitution of the Russian Federation “The Fundamentals of the Constitutional order” are of fundamental nature, and none of the other norms of the Constitution may contradict them.

Test questions and tasks 1. 2. 3. 4.

What is the specific nature of Russian constitutional law? Please analyze the primary differences between natural and positive law. Please name the basic legal features of a constitution. What is understood by “constitutional order”?

Chapter 12. RIGHTS, FREEDOMS AND OBLIGATIONS OF MAN AND CITIZEN IN THE RUSSIAN FEDERATION 12.1. Notion of Rights and Freedoms of Man and Citizen Rights and freedoms of man and citizen are the cornerstone of constitutional law which provides basic safeguard against tyranny and abuse of power to society and individuals alike. Rights of man and citizen are not limited to constitutional rights and freedoms, but the latter represent the most important and fundamental part of the former. By all accounts, the freedom of a person means being able to do anything which does not cause harm to others and, therefore, freedom may not be absolute. Freedom does not mean all-permissiveness. The boarders of freedom may only be drawn by law, which determines the limits of freedom as well as the consequences for overstepping them. According to the formal legal doctrine, human and civil freedoms are the same notion as human and civil rights, the only difference being that possessing a right means being allowed to do something whereas a freedom means not being burdened by any hurdles or constraints. According to section 1 Article 17 of the Constitution of the Russian Federation, recognition and guarantees shall be provided for the rights and freedoms of man and citizen according to the universally recognised principles and norms of international law. Fundamental human rights and freedoms are inalienable and shall be enjoyed by everyone since the day of birth (section 2 Article 17). These constitutional provisions are based on the doctrine of natural rights which declares that the state of liberty is not granted by public authorities but belongs to a person from the very birth. It is worth noting that rights of man and citizen are two closely related notions, but not the same. Rights of man (human rights) descend from natural law, rights of citizen (civil rights) — from positive law, i.e. laws emanating from the state. Human rights are inherent to any person by virtue of human nature, regardless of its citizenship, whereas civil rights are the benefits to be enjoyed only by citizens of a certain state.

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In contrast to rights of citizen, rights of man are not always a legal category, but often, only a moral and social category which may exist independently of state and legal recognition, regardless of the legal tie of a person to any certain country. The fundamental international normative acts which include provisions on rights and freedoms of man and citizen include: 1. The Universal Declaration of Human Rights (adopted by the UN General Assembly on 10 December 1948); 2. European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted in Rome on 4 November 1950); 3. International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights (both adopted by the UN General Assembly in 1966).

12.2. Classification of the Fundamental Rights and Freedoms of Man and Citizen Fundamental rights and freedoms of man and citizen may be classified according to various criteria. E.g., based on the stages of declaration of the fundamental rights and freedoms, they are conventionally classified into three generations: — the first generation includes civil and political rights declared as a result of XVII–XVIII cc. revolutions, which are often called “negative” rights. That means that they demonstrate the independence of a person from the power of state in certain matters, which denote the limits of state intervention into the domain of individual freedom and self-expression (e.g. they include right to life, freedom and personal safety, inviolability of house, equality before the law, election rights, freedom of thought and religious liberty, freedom of print and speech); — the second generation is linked to social, economic and cultural rights, which had been established as such by the mid-XX century as a result of people’s strife for better socio-economic conditions, higher level of living and basic welfare standards. These rights are called “positive”, since their realisation, contrary to the first-generation rights, requires goal-oriented and active actions from the state without which such rights would be merely a senseless declaration (right to labour, right to rest and leisure, education, protection of motherhood and childhood, healthcare, social security, participation in cultural life of the society); — third generation of rights is linked to collective rights as well as joint and several rights which have received full support due to the global problems of modern age (right to peace, favourable environment, self-determination, information, social and economic development etc.). This generation of rights started forming after the end of WWII, when many countries and peoples were freeing themselves from colonial dependence

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and against the background of worsening ecological and humanitarian issues. These rights are in most respects only emerging now. Based on their essence, constitutional rights and freedoms may be classified as follows. 1. Personal rights and freedoms. These include: — right to life (Article 20 of the Constitution of the Russian Federation); — right to human dignity (Article 21 of the Constitution of the Russian Federation). Section 2 Article 21 of the Constitution of the Russian Federation envisages that no one shall be subject to torture, violence, or other severe of humiliating treatment or punishment. No one may be subject to medical, scientific, and other experiments without voluntary consent; — right to freedom and personal immunity (Article 22 of the Constitution of the Russian Federation), which implies the capability to commit any legal actions and implies warranties provided by the state regarding immunity of life, health, dignity, and reputation; — right to inviolability of private life, personal and family secrets, protection of honor and good name; — right to privacy of correspondence, telephone conversations, postal, telegraph, and other messages (Article 23 of the Constitution of the Russian Federation); — right to inviolability of home (Article 25 of the Constitution of the Russian Federation). The Constitution specifically envisages that no one has the right to enter a house against the will of its dwellers, unless otherwise prescribed by federal law or court decision; — right to determine and indicate one’s nationality; — right to use of one’s native language, to free choice of the language of communication, upbringing, education, and creative work (Article 26 of the Constitution of the Russian Federation); — right to free travel, free choice of place of stay or residence (Article 27 of the Constitution of the Russian Federation). The state warrants everyone's right to freely leave the territory of the Russian Federation and citizens' right to freely return to the Russian Federation. Pursuant to Article 28 of the Constitution of the Russian Federation, everyone is guaranteed the freedom of conscience and religion, including the right to profess individually or together with others any religion or to profess no religion at all, to freely choose, possess, and disseminate religious and other views and act according to them. While freedom of conscience implies one’s right either to believe in God or to be an atheist, freedom of religion implies the right to freely choose one’s religious doctrine and free religious practices. Everyone in Russia is guaranteed the freedom of ideas and speech (Article 29 of the Constitution of the Russian Federation). Alongside with that, one

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must understand that ideas are by default free, since a person can be made to say what they are not thinking, but the thought itself is out of control. No one may be forced to express their views and convictions or to reject them. 2. Political rights and freedoms. As opposed to personal rights which belong to each person individually, political rights are granted to citizens exclusively. The most important political rights listed in the Constitution of the Russian Federation are: — right to freely look for, receive, transmit, produce, and disseminate information in any legal manner, which naturally implies the basic constitutional warranty of freedom of mass communication and ban of censorship; — right to association, including the right to create trade unions for the protection of one’s interests (Article 30 of the Constitution of the Russian Federation); — right to assemble peacefully, without weapons, hold rallies, meetings and demonstrations, marches and pickets (Article 31 of the Constitution of the Russian Federation); — right to participate in managing state affairs both directly and through representatives; — right to elect and to be elected to state bodies and local self-government bodies, as well as to participate in referenda; — right to equal access to state service (Article 32 of the Constitution of the Russian Federation). 3. Economic, social and cultural rights and freedoms. Respect for such rights signifies that not only is the principle of rule of law adhered to, but also that a state is a social state. A social state does not solve all the problems of its citizens for them, but creates an environment to realise their right to a dignified life. The fundamental constitutional rights in the economic sphere include: — right to freely make use of one’s capabilities and property for business and other economic activities not prohibited by law (section 1 Article 34 of the Constitution of the Russian Federation). Besides, the Constitution establishes a direct prohibition of market monopolisation and non-good faith competition (section 2 Article 34 of the Constitution of the Russian Federation); — right to private property and inheritance (Article 35 of the Constitution of the Russian Federation); — right to labour and rest; — right to protection against unemployment (Article 37 of the Constitution of the Russian Federation).

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Article 7 of the Constitution of the Russian Federation declares that the Russian Federation ensures state support of family, motherhood, fatherhood and childhood, disabled and senior citizens, as well as develops a system of social services, pays state pensions, social allowances, and other guarantees of social security. This means that a number of social and cultural rights exist, the most important of which include: — right to social security, state pensions and social allowances? (Article 39 of the Constitution of the Russian Federation); — right to housing (Article 40 of the Constitution of the Russian Federation); — right to healthcare and medical aid (Article 41 of the Constitution of the Russian Federation; — right to favourable environment and reliable information on its state (Article 41 of the Constitution of the Russian Federation); — right to education (Article 43 of the Constitution of the Russian Federation); — right to freedom of expression and participation in creative activities (Article 44 of the Russian Federation). Everyone is guaranteed judicial remedy of rights and freedoms. Under international treaties of the Russian Federation, every person may appeal to international human rights organisations, if all relief mechanisms in Russia have been exhausted. Besides, a person is fully entitled to protect one’s rights and freedoms by oneself, including with the use of arms (in certain cases)1.

12.3. Obligations of Man and Citizen under the Constitution of the Russian Federation Human rights and freedoms are inconceivable without certain obligations. Unity of rights and obligations is one of the most important principles of the operation of civilised legal regulation. Section 2 Article 6 of the Constitution of the Russian Federation sets forth that every citizen of the Russian Federation enjoys in its territory all the rights and freedoms and bears equal obligations set forth in the Constitution of the Russian Federation. This underlines the fact that no citizen can be exempt from or can evade performance of constitutional duties — this burden is borne by all the citizens of our state. However, obligations of man and citizen in the territory of the Russian Federation may be different. Constitutional obligations include: — obligation to observe the Constitution (section 2 Article 15 of the Constitution), which is binding upon bodies of state authority, bodies of local self-government, officials, private citizens and their associations; 1 For more detail please see Federal Law dated 13.12.1996 # 150-FZ “On arms” // Rossiyskaya gazeta, 18 December 1996.

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— — — —

respect for rights and freedoms of other people (section 3 Article 17); care for children and disabled parents (section 2 and 3 Article 38); receipt of basic general education (Article 43); care for the preservation of cultural and historical heritage (section 3 Article 44); — payment of taxes and dues (Article 57); — preservation of nature and the environment (Article 58); — defence of the Fatherland (Article 59).

Test questions and tasks 1. What are the principle distinctive features of each of the three generations of human and civil rights? 2. Please provide a classification of human and civil rights. Which rights and freedoms do you believe to be the most important? 3. Do you think that it is reasonable to provide a list of civil obligations in the constitution?

Chapter 13. FEDERAL STRUCTURE OF THE RUSSIAN FEDERATION 13.1. General Description of Modern Russian Federalism Federal structure is a type of state structure, which assumes a certain manner of decentralisation of powers taking into consideration specific features of a given state. A federative state is a union of state-like formations possessing certain independence, equal rights, and equal legal status. As a rule, all federative states legally declare the voluntariness of its subjects’ union, but do not provide for a right to secession. Due to this factor federations disintegrate, as a rule, through non-legal forms (revolutions, rebellions, outer unsanctioned influence). Experience shows that the most acute problem of federative state structure is optimal and efficient distribution of powers between the federal and territorial authorities. This problem is to a great extent solved by the Russian Constitution of 1993 which continues the long and controversial process of Russian federalism’s and federative relations’ improvement. The Constitution of the Russian Federation is a serious obstacle in the way of two extreme tendencies: separatism (the will of particular subjects to secede Russia), and return to unitarianism (severe centralisation of power and annihilation of subjects’ political and economic independency). Thus, the modern state of federative relations in Russia can be characterised as “democratic federalism” with the following innate features: — integrity and inviolability of the territory of the Russian Federation; — equality of all subjects of the Russian Federation; — construction and development of the Russian Federation based on two equally important foundations: national-territorial and strictly territorial; — the Russian Federation possesses state sovereignty, and not its subjects. Subjects of the Russian Federation, including republics, are not independent states or subjects of international law. In this case, their union would not have been a federation, but, rather, a confederation (with a right to secession);

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— Russia is not a national state, it is a multinational state; — one of the types of subjects of the Russian Federation — republics — are deemed national states (i.e. a form of statehood of a certain nation as part of Russia), but de facto they are multinational; — the Russian nation as a component of the Russian Federation does not have its own national statehood, which leads to the conclusion that the Russian nation sees enforcement of its national interests in forming a multinational democratic rule-of-law state. The development of federative relations in modern Russia is intended to solve a rather complex problem: asymmetry of rights and opportunities of economically inhomogeneous subjects of the Russian Federation, which is often complicated by the national problem. Alignment of rights and obligations of the subjects of the Russian Federation is the primary direction of evolution of Russian federalism.

13.2. Constitutional Status of the Russian Federation The foundation of the constitutional status of the Russian Federation is its Constitution, whose analysis allows highlighting the primary elements thereof, which are the following. 1. Sovereignty of the Russian Federation and supremacy of state authority, which are the foundation of state’s constitutional order. 2. Integrity and inviolability of the territory of the Russian Federation. All the subjects of the Russian Federation are listed in Article 65 of the Constitution alphabetically, which is meant to underline the subjects’ equal mutual obligations. Despite the fact that the territory of the Russian Federation includes all of its subjects, the Federation is not entitled to modify the boundaries of its subjects — those can only be modified at their mutual consent. 3. State language, which is Russian, pursuant to section 1 Article 68 of the Constitution. 4. Single citizenship, which is acquired and terminated pursuant to a federal law. The citizenship is single and equal, irrespective of the grounds of acquisition (Article 6 of the Constitution of the Russian Federation). Article 61 of the Constitution of the Russian Federation sets forth that a citizen of the Russian Federation cannot be exiled outside of the Russian Federation or extradited to another state, and that the Russian Federation warrants protection and patronage to its citizens outside of its territory. 5. Single customs, monetary, and tax systems, which are an important warranty of single economic space of the country and free movement of goods, services, and finances. 6. Common federative governmental authorities. 6. Single judiciary and prosecutor’s office. 7. Single federal system of law. Alongside with that, subjects of the Russian Federation are entitled to exercise their own legal governance in the spheres which comprise their jurisdiction.

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8. Single Armed Forces. 9. Right to foreign affairs with other states, through which the Russian Federation represents and protects the whole country’s, as well as individual subjects’ interests. 10. National symbols: flag, emblem, and anthem. The most important feature of the Russian Federation is division of jurisdiction and authority between the federal center and subjects, — Federation cannot possess unlimited authority in ruling the country. In connection therewith, the Constitution of the Russian Federation sets forth the jurisdiction and the authority attributable to the Federation, attributable to both the Federation and the subjects jointly, and residual matters which comprise the exclusive jurisdiction of the subjects. Pursuant to Article 71 of the Constitution of the Russian Federation, let us list some of the matters which are under the jurisdiction of the Russian Federation: — adoption and modification of the Constitution and federal laws, supervision over their performance; — the federative structure and the territory of the Russian Federation; — governance and protection of rights and freedoms of man and citizen, citizenship of the Russian Federation; governance and protection of national minorities’ rights; — formation of federal governmental authorities; — establishment of foundations of federal policy and federal programs in the state, economic, ecologic, social, cultural, and national development spheres of the Russian Federation; — establishment of legal foundation of common market; financial, currency, customs regulation, money emission; — federal budget; federal taxes and fees; — external policy and foreign relations of the Russian Federation, international treaties of the Russian Federation; war and peace matters; — defense and security; defense industry; — judicial system; prosecutor’s office. Common jurisdiction means that the matters are handled by the Federation and its subjects jointly. Pursuant to Article 72 of the Constitution, let us list some of these matters: — seeing forth that all normative acts of the subjects conform to the Constitution and federal laws; — protection of rights and freedoms of man and citizen; — matters of possession, usage, and disposition of land, subsoil, water, and other natural resources; — natural resources management; protection of the environment and ecologic security; — general matters of nurturing, education, science, culture, physical education, and sports;

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— coordination of health care services; protection of family, motherhood, and childhood; social services, including social security; — administrative, administrative procedural, labour, family, housing, land, water, forest legislation, subsoil legislation, environment protection legislation; — coordination of international and foreign economic relations of subjects of the Russian Federation, performance of international treaties of the Russian Federation.

13.3. Constitutional Status of the Subjects of the Russian Federation Pursuant to Article 5 of the Constitution of the Russian Federation, the latter consists of republics, territories, regions, cities of federal importance, an autonomous region, and autonomous areas — equal subjects of the Russian Federation (currently, there are 85). Based on the Constitution and pursuant thereto, as well as to federal laws, subjects of the Russian Federation adopt their own constitutions and charters, laws, and other normative acts. The equality of the subjects of the Russian Federation is also demonstrated by the equal representation of the subjects in the Federation Council of the Federal Assembly of the Russian Federation, as well as by the manner of formation of the State Council of the Russian Federation, which consists of the high officials of all the subjects of the Russian Federation. Alongside with that, one can also speak about the asymmetry of Russian federalism, due to the fact that the republics in the Russian Federation are declared states (section 2 Article 5 of the Constitution of the Russian Federation), while other subjects of the Russian Federation do not possess this status. Constitutions of the republics may be adopted by their legislative assemblies, as well as via referenda, while other subjects’ charters are only adopted by legislative assemblies. The subjects of the Russian Federation have their territories, and the boundaries between them can only be modified at their mutual consent. The economic foundation of the subjects’ activity is their property, the budget and non-budget fund finances, and their property rights. The subjects of the Russian Federation also possess these characteristics: a) they do not have state sovereignty; b) they do not have a right to secession; c) any subject’s citizens have equal rights and obligations at the territory of the Russian Federation; d) a law of a subject of the Russian Federation may not contradict a federal law (unless the former is adopted to govern the matters which are exclusively the subject’s jurisdiction). Republics, as opposed to other subjects of the Russian Federation, are considered states, but their authority is not sovereign, and they are only independent in the boundaries set forth in the Constitution. Republics may

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not infringe Russia’s territorial integrity and declare themselves independent states. Republics are free to define their own system of governmental bodies. These bodies are accountable to the population of the republic and, in some cases, to the state authorities of the Russian Federation. Republics are free to establish their state languages and are subjects of international law, but in a limited way, which cannot contradict the Constitution and the laws of the Russian Federation, and it is coordinated by the federal authority jointly with the republican. Republics are also entitled to state symbols. Russian Federation includes one autonomous region (Jewish) and four autonomous districts. Alongside with that, the Jewish nation comprises less than 1% of the Jewish autonomous region. The name is of traditional nature, and this autonomous district is the only region (with the exception of Israel) which is Jewish and has corresponding official legal status. These subjects of the Russian Federation are entitled to adopt their own charters, laws, and other normative acts, address all regional matters, have state symbols, administrative center, form legislative, executive, and judicial bodies which operate based on the Constitution of the Russian Federation. Territories, regions, and cities of federal importance also possess full authority within their territory and as defined by the Constitution of the Russian Federation.

Test questions and tasks 1. Please name the most acute and widespread problems of federalism. 2. Please list the most important elements of constitutional status of the Russian Federation. 3. What is the difference between the jurisdiction of the Russian Federation and that of its subjects? 4. What is the asymmetry of the Russian model of federalism?

Chapter 14. STATE AND MUNICIPAL AUTHORITIES OF THE RUSSIAN FEDERATION 14.1. The President of the Russian Federation Pursuant to Article 80 of the Constitution of the Russian Federation, the President of the Russian Federation is the head of state. He is not directly included in any of the branches of authority, which underlines his special status. The primary functions of the President are defined in Article 80 of the Constitution of the Russian Federation, pursuant to which he: — is the guarantor of the Constitution of the Russian Federation, human and civil rights; — takes measures to protect the sovereignty of the Russian Federation, its independence and state integrity, ensure concerted functioning and interaction of bodies of state power; — defines the basic domestic and foreign policy guidelines of the state; — represents the Russian Federation inside the country and in its foreign relations. The authority of the President of the Russian Federation is extensive and may be divided into several spheres. 1. Authority in formation and maintenance of normal operation of federal governmental bodies. The President of the Russian Federation: — appoints Chairman of the Government of the Russian Federation subject to consent of the State Duma; — has the right to preside over the meetings of the Government of the Russian Federation; — decides on resignation of the Government of the Russian Federation; — introduces to the State Duma a candidacy for appointment to the office of the Chairman of the Central Bank of the Russian Federation and submits to the State Duma the proposal on relieving the Chairman of the Central Bank of the Russian Federation of his duties; — appoints and dismisses deputy chairmen of the Government of the Russian Federation and federal ministers as proposed by the Chairman of the Government of the Russian Federation;

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— submits to the Federation Council candidates for appointment to the office of judges of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation; for Prosecutor General of the Russian Federation, appoints the judges of other federal courts and prosecutors of the subjects of the Russian Federation; — appoints the representatives of the Russian Federation in the Federation Council and relieves them of their duties; — forms the Administration of the President of the Russian Federation; — call elections to the State Duma and may dissolve it as prescribed by the Constitution of the Russian Federation. 2. Law-making authority. The President of the Russian Federation: — introduces draft laws in the State Duma; — has the right to veto; — signs and publishes federal laws; — issues decrees and orders which are binding at the territory of the Russian Federation. These are equal to regulations in their legal power. 3. Authority in the sphere of external policy, defense, and national security. The President of the Russian Federation: — supervises the foreign policy of the Russian Federation; — conducts negotiations and signs international treaties of the Russian Federation; — signs instruments of ratification; — accept credentials and instruments of recall of diplomatic representatives accredited with him in foreign states and international organisations; — is the Supreme Commander-in-Chief of the Armed Forces of the Russian Federation; — introduces martial law on the territory of the Russian Federation or in particular territories thereof; — forms and heads the Security Council of the Russian Federation; — endorses the military doctrine of the Russian Federation; — appoints and dismisses the Supreme Command of the Armed Forces of the Russian Federation. 4. Authority in the sphere of specification of individual legal status. The President of the Russian Federation: — resolves issues of citizenship of the Russian Federation and of granting political asylum; — awards state decorations of the Russian Federation, confers honorary titles of the Russian Federation and top military ranks and top specialised titles; — grants pardon. Pursuant to Article 81 of the Constitution of the Russian Federation, the President of the Russian Federation is elected for a term of six years by the citizens of the Russian Federation on the basis of general, equal, and direct

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vote by secret ballot. A citizen of the Russian Federation not younger than 35, who has resided in the Russian Federation for not less than 10 years, may be elected President of the Russian Federation. No one shall hold the office of the President of the Russian Federation for more than two terms in succession. The grounds for termination of the powers of the President of the Russian Federation are his resignation or sustained inability to exercise his authority due to health condition or discharge of his powers in the event of impeachment.

14.2. The Federal Assembly (Parliament) of the Russian Federation Pursuant to Article 94 of the Constitution of the Russian Federation, the Federal Assembly — Parliament of the Russian Federation — shall be the supreme representative and legislative body of the Russian Federation. This body of legislative power operates as the key element of the system of separation of powers and is independent. The Federal Assembly represents (expresses) the interests of the multinational people of the Russian Federation, which is provided through the democratic electoral system, election of deputies from all the regions and from all political parties. Scholars fairly note that the Federal Assembly (being a representative body) can act on behalf of the whole nation even when the Parliament’s will is based on the majority, and not on all the deputies1. The Federal Assembly, being a legislative body, possesses an exclusive right to adopt laws, i.e. normative acts of the highest legal power, which all other legal acts shall conform to. The Federal Assembly consists of two chambers: the Federation Council and the State Duma. The bicameral system of the Russian Parliament is designed both to represent the whole nation’s interests and to represent the subjects of the Russian Federation in the highest legislative body of the state. The Federal Assembly is a permanent body. The Federation Council and the State Duma sit separately and their sessions are open, unless otherwise envisaged by their rules (Article 100 of the Constitution of the Russian Federation). The Chambers of the Federal Assembly are equal; they are both parts of a single Parliament, though they have different authority. The primary workload in adopting federal laws is borne by the State Duma. The State Duma is elected for the term of five years and consists of 450 deputies. Pursuant to Article 3 of the Federal Law “On election of deputies of the State Duma of the Federal Assembly of the Russian Federation”2, 225 deputies are elected in single-seat electoral districts (“one district — one deputy” 1

Baglay M.V. Op. cit. P. 516. Federal law of February 22, 2014 #20-FZ (as of July 14, 2015) “On the Elections of Deputies to the Sstate Duma of the Federal Assembly of the Russian Federation” // Rossiyskaya Gazeta. February 26, 2014. # 45. 2

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principle) and other 225 deputies are elected in one federal electoral district in proportion to the number of votes cast for the federal lists of candidates for the State Duma (federal lists of candidates, or so-called “system of party lists”). Any citizen of the Russian Federation aged 21 and older may be elected deputy to the State Duma. One and the same person may not concurrently be a deputy to the Federation Council and to the State Duma (section 2 Article 97 of the Constitution of the Russian Federation). A deputy to the State Duma may not be a deputy to any other representative body of state power or bodies of local self-government, may not be employed in the civil service or engage in any activities for remuneration other than teaching, research or other creative activities (section 3 Article 97). This ban is designed to underline the special status of a deputy to a state legislative body who works on a permanent professional basis. Pursuant to Article 103 of the Constitution of the Russian Federation, the jurisdiction of the State Duma includes: — granting consent to the President of the Russian Federation for the appointment of the Chairman of the Government of the Russian Federation; — decision on confidence in the government of the Russian Federation; — hearing of annual reports of the Government of the Russian Federation; — appointment and dismissal of the Chairman of the Central Bank of the Russian Federation, the Chairman of the Accounting Chamber and half of its staff of auditors, the Plenipotentiary for Human Rights. The Constitution of the Russian Federation allows dissolution of the State Duma. This can be done by the President of the Russian Federation in the following cases: 1) triple rejection by the State Duma of candidates for Chairman of the Government of the Russian Federation nominated by the President of the Russian Federation (section 4 Article 111 of the Constitution of the Russian Federation); 2) double expression within 3 months of non-confidence in the Government of the Russian Federation by the State Duma, if the President of the Russian Federation disagrees to announce resignation of the Government of the Russian Federation (section 3 Article 117 of the Constitution of the Russian Federation); 3) the non-confidence vote by the State Duma in the Government of the Russian Federation, if the Chairman of the Government of the Russian Federation puts the question of confidence in the Government of the Russian Federation (section 4 Article 117 of the Constitution of the Russian Federation). When the State Duma is dissolved, the President of the Russian Federation calls a new election, so that the newly elected State Duma would assemble within 4 months after the dissolution. Pursuant to Article 117 of the Constitution of the Russian Federation, the State Duma may not be dissolved: a) within one year after its election; b) within six months before the expiration of the President’s powers; c) after the State Duma advances charges against the President of the Russian Federation; d) within the period of action of martial law or state of emergency. The Federation Council is formed as follows. It involves two representatives from each of the subjects of the Russian Federation — one from the legislative

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(representative) and one from the executive body, as well as representatives of the Russian Federation appointed by the President of the Russian Federation. The number of the representatives appointed by the President cannot comprise more than 10% of the members of the Federation Council (Article 95 of the Constitution of the Russian Federation). Pursuant to Article 95 of the Constitution, a member of the Federation Council who is a representative from a legislative or executive body of subject’s authority is vested with the authority for the term of authority of the subject’s respective body. Article 102 of the Constitution of the Russian Federation sets forth the jurisdiction of the Federation Council: — approval of changes of borders between the subjects of the Russian Federation; — approval of the decree of the President of the Russian Federation on the introduction of martial law; — making decisions on the possibility of the use of the Armed Forces of the Russian Federation outside of the territory of the Russian Federation; — calling of elections of the President of the Russian Federation and impeachment of the President of the Russian Federation; — appointment of judges of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Prosecutor General of the Russian Federation and his deputies, the deputy Chairman of the Accounting Chamber and half of its staff of its auditors. The members of the Federation Council and the deputies of the State Duma are immune within the term of service. They cannot be detained, arrested, or searched except when detained in the act of perpetrating a crime. However, their immunity may be stripped based on the recommendation of the Prosecutor General of the Russian Federation by the corresponding chamber of the Federal Assembly (Article 98 of the Constitution of the Russian Federation). Each chamber adopts its own rules and solves questions of internal organisation.

14.3. Law-Making Procedure in the Russian Federation Adoption of law is the most important power of the Federal Assembly of the Russian Federation. The law-making (legislative) procedure in Russia consists of a number of consecutive stages. 1. Legislative initiative is a right to introduce a draft law to the Parliament, which obliges the Parliament to consider this initiative. Right to legislative initiative is vested in the President of the Russian Federation, the Federation Council and its members, deputies of the State Duma, legislative (representative) bodies of subjects of the Russian Federation, as well as to the Constitutional Court of the Russian Federation and the Supreme

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Court of the Russian Federation within their jurisdiction (section 1 Article 104 of the Constitution of the Russian Federation). Draft bill are introduced in the State Duma accompanied by an explanatory note where the concept of the draft bill is described. A number of other documents must be enclosed (financial-economic reasoning, list of normative acts subject to amendment, annulment, or complement in connection with the adoption of the draft law). 2. Consideration of draft laws and their adoption. Consideration of draft laws is performed in three hearings (unless otherwise provided by the legislation or by the rules of the State Duma). In the first hearing, the concept of the draft bill is discussed and general evaluation is performed. As a result, after the first hearing the State Duma may: a) adopt the draft law in the first hearing and, respectively, continue working on it in the next hearings (taking into account the comments received); b) reject the draft law; c) adopt the draft law. Should the draft law be adopted in the first hearing, the State Duma sets forth the timeframes for initiating modifications thereto. In the second hearing, the draft law is improved based on the comments. The incorporation or rejection of each modification is decided by vote. Upon completion of the voting, the proposal is brought up to adopt the entire draft law in the second hearing. The draft law, if adopted in the second hearing, is once again analyzed by the respective competent committee of the State Duma in order to eliminate possible discrepancies and proof-read the document. It is then forwarded for the third hearing, during which the deputies vote for the entire draft bill (with no modifications initiated or discussed). Federal laws are adopted by a majority of votes of all deputies to the State Duma. The laws adopted by the State Duma shall be passed to the Federation Council for review within five days. A federal law is considered passed by the Federation Council if more than half of its members vote for it or if within fourteen days it has not been considered by the Federation Council. Should the Federation Council reject the federal law, the chambers may set up a conciliatory commission to settle the discrepancies, whereupon the federal law shall be again considered by the State Duma. Should the State Duma disagree with the decision of the Federation Council, the federal law shall be considered adopted if, in the second voting, at least two-thirds of the total number of deputies to the State Duma vote for it. Alongside with that, Article 106 of the Constitution of the Russian Federation sets forth mandatory consideration by the Federation Council of a federal law adopted by the State Duma if such law deals with the issues of:

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а) federal budget; b) federal taxes and fees; c) financial, monetary, credit, and customs regulations and money emission; d) ratification and denunciation of international treaties of the Russian Federation; e) status and protection of the state border of the Russian Federation; е) war and peace. The adopted federal law is sent to the President of the Russian Federation for signing and publication within five days. The President of the Russian Federation signs a federal law and publishes it within fourteen days. If the President rejects a federal law within fourteen days since it was sent to him, the State Duma and the Federation Council again consider the law in accordance with the procedure established by the Constitution of the Russian Federation. If, during the second hearings, the federal law is approved in its earlier draft by a majority of not less than two thirds of the total number of deputies of the Federation Council and the State Duma, it shall be signed by the President of the Russian Federation within seven days and published (Article 107 of the Constitution of the Russian Federation). Adoption of a federal constitutional law requires stricter procedure. A federal constitutional law is considered adopted if it was approved by a majority of at least three quarters of the total number of representatives of the Federation Council and at least two thirds of the total number of deputies to the State Duma. The adopted federal constitutional law is signed by the President of the Russian Federation within fourteen days and is published (Article 108 of the Constitution of the Russian Federation). The President may not veto an adopted federal constitutional law. 3. Publishing of the law. Only officially published laws are valid at the territory of the Russian Federation. Federal constitutional laws and federal laws are subject to official publication within seven days after signing by the President of the Russian Federation. They enter into force after ten days upon their official publishing, unless otherwise provided by the law itself.

14.4. The Government of the Russian Federation and the Structure.. of Federal Executive Bodies of the Russian Federation The executive branch of power of any state is designed to organise people’s lives, perform and enforce legal prescriptions. Hence, it involves a great number of officials and is vested with vast authority. It is headed by the government, where either the President or the Prime Minister presides. The Constitution of the Russian Federation envisages that executive power in the Russian Federation is exercised by the Government of the Russian Federation (section 1 Article 110 of the Constitution of the Russian Federation). However, it does not mean that the Government alone exercises the execu-

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tive power. Pursuant to Article 1 of the Federal Constitutional Law “On the Government of the Russian Federation”1, the Government is a collegiate body heading the single system of the executive power in the Russian Federation. In Russia, the Government consists of the Chairman of the Government of the Russian Federation, Deputy Chairmen of the Government, and federal ministers. The Chairman of the Government of the Russian Federation is appointed by the President of the Russian Federation with the consent of the State Duma. The State Duma considers the candidacy submitted by the President of the Russian Federation within one week. Should the State Duma thrice reject candidates for Chairman of the Government, the President of the Russian Federation appoints a Chairman of the Government of the Russian Federation, dissolves the State Duma and calls a new election (Article 111 of the Constitution of the Russian Federation). The Chairman of the Government of the Russian Federation not later than a week after appointment submits to the President of the Russian Federation proposals on the structure of the federal bodies of executive power, candidates for the office of Deputy Chairmen of the Government of the Russian Federation and federal ministers. The Government of the Russian Federation has vast authority. Thus it: — develops and submits the federal budget to the State Duma and ensures its implementation; — ensures the implementation in the Russian Federation of a uniform financial, credit, and monetary policy, policy in the field of culture, science, education, health, social security, and ecology; — manages federal property; — adopts measures to ensure the country’s defense, state security, and implementation of foreign policy of the Russian Federation; — implements measures to ensure the reign of law, rights and freedoms of citizens, protect property and public order, control crime (Article 144 of the Constitution of the Russian Federation). The Government of the Russian Federation issues decrees and orders, which are binding at the territory of the Russian Federation. However, if these contradict the Constitution of the Russian Federation, federal laws or presidential decrees, they may be repealed by the President of the Russian Federation. The Government of the Russian Federation is in close coordination with the President of the Russian Federation, as well as with the Federal Assembly of the Russian Federation. Pursuant to Article 31 of the Federal Constitutional Law “On the Government of the Russian Federation”, the President of the Russian Federation may 1 See Federal Constitutional Law of December 17, 1997 #2-FKZ (as of May 23, 2015) “On the Government of the Russian Federation” // Rossiyskaya Gazeta. December 23, 1997. # 245 // http://www.pravo.gov.ru — 23.05.2015

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preside at meetings of the Government. He must ensure coordinated operation and interaction of the Government of the Russian Federation and other state governmental bodies. Alongside with that, the President of the Russian Federation coordinates the operation of federal state authorities of the executive branch, which address the matters of defense, security, internal affairs, justice, foreign affairs, prevention of emergencies and elimination of consequences of natural disasters, endorses, upon the recommendation of the Chairman of the Government of the Russian Federation, standing orders of such bodies, appoints the directors and deputy directors of these bodies, and exercises other powers as the Supreme Commander-in-Chief of the Armed Forces of the Russian Federation and as the Head of the Security Council of the Russian Federation (Article 32 of the Federal Constitutional Law “On the Government of the Russian Federation”). Thus, a number of ministries and services are directly accountable to the President of the Russian Federation. The interaction between the Government of the Russian Federation and the Federal Assembly of the Russian Federation is based on the principle that the Government of the Russian Federation has a right to legislative initiative. Besides, the Government of the Russian Federation submits written opinions on draft laws which deal with the matters of imposing and abolishing taxes, issuing state obligations, restructuring state’s financial obligations and if such laws provide for expenses to be covered by the federal budget. In many cases, these opinions are decisive when a draft law is adopted or rejected. The members of the Government of the Russian Federation must, at the invitation of the chambers of the Federal Assembly, be present at their sessions and answer the representatives’ in the Federative Council and the deputies’ to the State Duma questions. Members of the Government of the Russian Federation, at the invitation of the chambers of the Federal Assembly, give speeches at their sessions addressing matters of extreme importance (Article 38 of the Federal Constitutional Law “On the Government of the Russian Federation”). The interaction of the Government of the Russian Federation with the judicial bodies is limited to the fact that the Government of the Russian Federation effects financing of courts from the federal budget and ensures full and independent delivery of justice. Pursuant to Article 10 of the Federal Constitutional Law “On the Government of the Russian Federation”, all the members of the Government must annually file a statement of income and expenses of their own, their spouses, and minor children. The Constitution of the Russian Federation does not set forth the term of office of the Government of the Russian Federation. However, pursuant to Article 116 of the Constitution of the Russian Federation, the Government shall lay down its powers before the newly elected President of the Russian Federation.

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The resignation of the Government of the Russian Federation is closely connected to the position of the President of the Russian Federation. For instance, Section 1 Article 117 of the Constitution of the Russian Federation declares that the Government of the Russian Federation may hand in its resignation, which is accepted or rejected by the President of the Russian Federation. The President of the Russian Federation may take a decision on the resignation of the Government of the Russian Federation. The State Duma may also express non-confidence in the Government of the Russian Federation. In that case, the President of the Russian Federation may announce the resignation of the Government of disagree with the State Duma. Should the State Duma within three months once again express nonconfidence in the Government of the Russian Federation, the President either announces the resignation of the Government or dissolves the State Duma. The President of the Russian Federation is thrown into a dilemma due to the fact that the higher state governmental authorities must work in alignment and trust one another. If there is persistent imbalance in their relationships, the President of the Russian Federation, being the head of state, must solve the conflict in a radical manner. A faster development of the situation connected with confidence in the Government of the Russian Federation may take place if the Chairman of the Government raises the question of confidence in the Government of the Russian Federation. If the State Duma expresses non-confidence, the President of the Russian Federation within seven days takes decision to either announce resignation of the Government of the Russian Federation or to dissolve the State Duma and call a new election. Pursuant to the Order of the President of the Russian Federation “On the System and Structure of the Federal Bodies of Executive Power”1, the system of federal executive bodies of the Russian Federation includes federal ministries, federal services, and federal agencies. A federal ministry is a federal executive body which exercises authority in policy formulation and normative regulation in a particular field. A ministry effects coordination and control over the operation of federal services and agencies which are accountable to it (item 3 of the Decree of the President of the Russian Federation). The ministry’s head is a federal minister. Currently, there are 21 ministries in Russia (Ministry of defense, Ministry of foreign affairs, Ministry of justice etc.). A federal service is a federal executive body which exercises authority in control and supervision over a particular field, as well as special functions in the spheres of defense, state security, protection and safeguarding of the state border of the Russian Federation, combating crime, and in the sphere of so1 The Decree of the President of the Russian Federation of March 09, 2004 # 314 (as of June 22, 2010) “On the System and Structure of the Federal Bodies of Executive Power” // Rossiyskaya Gazeta. March 12, 2004. # 50.

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cial order. A federal service’s head is its director (item 9 of the Decree of the President of the Russian Federation). As opposed to a ministry, a federal service is not entitled to effect normative regulation in its sphere, but it can solely adopt its own individual acts (law-enforcing acts). Currently, there are 29 services in Russia (Federal Antimonopoly Service, Federal Migration Service, Federal Tax Service, etc.). A federal agency is a federal body of executive power which exercises functions in rendering state services, managing state property and law-enforcing functions except for control and supervision. A federal agency’s head is its director. A federal agency may not adopt normative acts. Currently, there are 22 agencies in Russia (Federal Space Agency, Federal Agency in National Matters, Federal Road Agency, etc.). Normative acts adopted by federal executive bodies must be published and enter into force upon within 10 days after their publication, unless otherwise set forth in the act itself.

14.5. Judicial Power and the Prosecutor’s Office Independent and efficient judicial power is one of the main features of a rule of law state, the most important warranty of protection of rights, freedoms and legitimate interests of man and citizen, of uniform perception and implementation of legal requirements at the entire territory of the state. Pursuant to Articles 10 and 11 of the Constitution of the Russian Federation, the judiciary is one of the types of state power (along with the legislative and the executor), and its bodies possess full independency. Article 118 of the Constitution of the Russian Federation establishes that justice is executed exclusively by court, and the judicial power is exercised in the forms of constitutional, civil, administrative, and criminal proceedings. The creation of extraordinary (emergency) courts at the territory of the state is strictly prohibited. The primary task of the judiciary is execution of justice. Justice is the courts’ efforts to consider civil, administrative, and criminal cases in judicial proceedings, and to solve them in a legal, reasonable, and just manner in strict accordance with the Constitution and legislation of the Russian Federation. The most important principles of justice include the following: legality, administration of justice by court exclusively, independence of judges and their submission to law only; irremovability and immunity of judges, administration of justice based on equality before law and court; judicial remedy of rights; maintenance of legality, expertise, and impartiality of court; the benefit of the doubt; ensuring the convict’s right to defense; controversy and equality of parties; openness of judicial proceeding; right to use national language in judicial proceedings; participation of citizens in administration of justice; protection of one’s dignity and reputation; explicit and oral nature of judicial proceeding.

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Pursuant to Article 4 of the Federal Constitutional Law “On the Judicial System of the Russian Federation”1, the courts that operate in Russia include federal courts, constitutional (charter) courts, and peace justices of the subjects of the Russian Federation, who comprise the judicial system of the Russian Federation. Federal courts include: the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, supreme courts of republics, courts of other subjects of the Russian Federation, military and specialised courts, which comprise the system of federal courts of general jurisdiction; arbitrazh courts of districts, arbitrazh appellate courts, arbitrazh courts of the subjects of the Russian Federation, and specialised arbitrazh courts, which comprise the system of federal arbitrazh courts. Courts of the subjects of the Russian Federation include: constitutional (charter) courts, and peace justices, which are justices of general jurisdiction of the subjects of the Russian Federation. Citizens of the Russian Federation over 25 of age with a higher education in law and a law service record of not less than five years can become judges (Article 119 of the Constitution of the Russian Federation). Judges’ legal status is characterised with the following constitutional principles: — judges are independent and submit only to the Constitution and the federal law; — judges are irremovable and immune; — a judge’s powers cannot be ceased or suspended, and a judge cannot be held criminally liable otherwise than according to the rules set by the federal law. Article 123 of the Constitution of the Russian Federation sets forth that examination of cases in all courts is open, and closed or default proceedings are allowed only as prescribed by the federal law. The most important warranty of independency of the judiciary is the fact that courts are only financed from the federal budget, and it must ensure the possibility of complete and independent administration of justice pursuant to the federal law (Article 124 of the Constitution of the Russian Federation). The Prosecutor’s office of the Russian Federation is a single federal centralised system of bodies which exercise supervision over abidance by the laws operating at the territory of the Russian Federation, on behalf of the Russian Federation. The Prosecutor’s office bodies are not included into the judicial system of Russia, and service therein is one of categories of federal civil service. Alongside with other governmental bodies, the Prosecutor’s office is designed to ensure supremacy of law and maintenance of legality, protection of rights of man and citizen, as well as of society’s and state’s interests envisaged by law. 1 See Federal Constitutional Law of December 31, 1996 # 1-FKZ (as of February 5, 2014) “On the Judicial System of the Russian Federation” // Rossiyskaya Gazeta. January 6, 1997. # 3.

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For these purposes, pursuant to Article 1 of the Federal Law “On the Prosecutor’s Office of the Russian Federation”1, the Prosecutor’s office exercises: — supervision over execution of laws in force within the territory of the Russian Federation by federal bodies of the executive, by bodies of the legislative (representative) and the executive power of the subjects of the Russian Federation, by bodies of local self-government, and by other individuals and entities; — supervision over protection of human and civil rights; — criminal prosecution in accordance with powers set forth by criminal procedure legislation of the Russian Federation; — coordination of law enforcement bodies’ fight against crime; — initiation of administrative cases and conduct of administrative investigation. The Prosecutor’s office bodies exercise their powers independently from the federal state authorities, the authorities of the subjects of the Russian Federation, the local self-governments, social unions and in strict accordance with the operating laws (Article 4 of the Federal Law “On the Prosecutor’s Office of the Russian Federation”). The system of the Prosecutor’s office of the Russian Federation involves: Office of the Prosecutor General of the Russian Federation, Prosecutor’s offices of the subjects of the Russian Federation, equivalent military and other specialised Prosecutor’s offices, scientific and educational institutions which are legal entities, as well as city and district Prosecutor’s offices, other territorial, military, and other specialised Prosecutor’s offices. The Prosecutor General of the Russian Federation is appointed and removed from office by the Federation Council of the Federal Assembly of the Russian Federation upon the recommendation of the President of the Russian Federation. The Prosecutor General of the Russian Federation presents the chambers of the Federal Assembly of the Russian Federation and the President of the Russian Federation with an annual report on the current state of rule of law and law and order in the Russian Federation and on the efforts made to strengthen them.

14.6. Local Self-Government in the Russian Federation Local self-government is an indispensable attribute of democracy, a proof of decentralisation of power and the ability of local residents to solve certain issues autonomously. European Local Government Charter of 1985 sets forth that local government is a mandatory attribute for all countries. In Russia, local self-government is one of the constitutional pillars; it is recognised, protected and exercised throughout all of the territory of the state. 1 See Federal Law dated 17.01.1992 # 2202-1 “On the Prosecutor’s Office of the Russian Federation” // Rossiyskaya gazeta. 25 November 1995. # 229.

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According to Article 1 of the Federal Law “On General Principles of Local Self-Government in the Russian Federation”1 local self-government is a manifestation of democracy which ensures that local residents independently and self-responsibly solve issues of municipal importance directly or through municipal authorities, taking into account the interests of the people, historic and other local traditions. Fundamental democratic principles of local self-government include: 1. Supremacy of the Constitution of the Russian Federation, federal constitutional and federal laws. 2. Legality in organisation and realisation of local self-government (this principle should be considered not only by municipal authorities but also by state authorities). 3. Respect for rights and freedoms of man and citizen (which are the priority in all acts of local self-government). 4. Transparency of local self-government. 5. Distinction between the system of state agencies and the system of local self-government. (Although this does not imply isolation of municipal agencies from state agencies within the system of public authorities. In terms of organisation, it means that municipal agencies are established without the participation or interference of state agencies and, acting on a legal basis, possess full autonomy within their competence). 6. Independence of local self-government. Municipal agencies independently manage municipal property, form, adopt and enact municipal budget, enact local taxes and charges. Municipal entities independently establish universally binding rules within their competence and adopt plans and municipal development programmes. However, this independence may not be treated as complete autonomy from the state and uncontrollability. State agencies may exercise control over the activities of municipal agencies. That said, the important guarantee of independence of municipal agencies is a prohibition on repeal of municipal legal acts without a court decision. 7. Non-interference of state agencies into the activities of municipal agencies (state agencies may not interfere with the operational activity of local self-government). 8. Requirement to the system of local self-government to include elected agencies (representative authority and elected head of a municipal entity). 9. Accountability of local self-government, municipal agencies and their officials before the state, individuals and legal entities. 10. Insubordination of municipal entities to each other (which characterizes administrative and territorial insulation of different municipal entities). 11. State support of local self-government (which serves, for example, to ensure the minimal volume of municipal budgets). 1 See Federal Law dated 06.10.2003 # 131-FZ (as of 29.06.2015) “On General Principles of Local Self-Government in the Russian Federation” // Rossiyskaya gazeta. 8 October 2003. # 202.

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12. Cooperation of municipal and state agencies. Examples of expression of local residents’ will include local referenda; local elections; voting on recall of an elected official or member of a representative local authority; voting on changes to municipal entity’s borders; citizens’ meetings and gatherings; law-making initiatives; public hearings; public polling; public appeals to municipal agencies. The most important issues of local importance include: management and operation of municipal property, local finance and budget, local housing, residential and socio-cultural development, organisation of healthcare and education, urban planning and real estate, energy, heating, gas supply to the population; urban improvement; providing public transport services; preservation of historic and cultural monuments; organisation of leisure activities and creation of environment for sport and fitness development, etc. The structure of local self-government should include a representative body, head of a municipal entity and local administration. This structure may also include a supervising municipal authority, other bodies and elected officials. The procedure for the staffing of municipal authorities, term of office and various other issues are resolved by the respective municipal charters.

Test questions and tasks 1. Which powers does the President of the Russian Federation possess? 2. Please list the main stages of law-making procedure in the Russian Federation. 3. What is the role of Federation Council within the structure of state agencies of the Russian Federation? 4. Please describe the structure of federal executive bodies in the Russian Federation. 5. Which authority does the President of the Russian Federation have over the Government of the Russian Federation? 6. How is the judicial system organised in the Russian Federation? 7. What is the role and distinctive features of the local self-government in the Russian Federation?

PA RT 3 . BASICS OF CIVIL LAW Chapter 15. CIVIL LAW AS A BRANCH OF RUSSIAN LAW 15.1. The Definition and the System of Civil Law Civil law is of great importance not only in the system of basic legal sciences, but also within the branches of Russian law. As a science, civil law is deeply rooted — it goes back to Roman private law. Originally, the term “civil law” (Lat. jus civile) emerged in ancient Rome and signified the law which encircled the dwellers of Rome as city-state at the time. Gradually, jus civile (civil law) occupied the sphere of private law and was identified as private law. Later, as a result of reception of Roman private law in European states, this term entrenched itself in many states’ legal systems. The division of law into private and public also emerged in ancient Rome. According to the classic definition given by ancient Roman lawyer Ulpian, public law regards the position of the Roman state (i.e., public authority), whereas private law relates to individuals. The main point of the said division lies in the fact that each system of law contains norms designed to ensure common (public) interests, i.e. society’s and state’s interests (constitutional law, criminal law, administrative law, etc.) and norms ensuring private interests (civil law, labour law, family law, etc.). Public law is connected to public authority, which is borne by the state. Private law “attends to” private needs (individuals’ and entities’)?, who do not possess power and who act as free and equal proprietors. Civil law is a branch of private law, governing initiative activity of participants of social relations and aimed at catering to their own (private) needs1. There are primary principles of civil law regulation, which allow one to deem civil law a part of private law. These include: 1

See Ivanchak A.I. Civil Law of the Russian Federation. Textbook. M., 2014. P. 8.

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1) legal equality of the parties to civil law relations (there is no imperativeness); 2) autonomy of the parties’ will (they take decisions independently, at their own risk and at their own material liability); 3) material independence of the parties (they should have separate and isolated property which they incur personal liability for). There are also other principles of civil law as a specific branch of law. For instance, Article 1 of the Civil Code of the Russian Federation, apart from listing the above named principles, addresses the issues of inviolability of property, freedom of contract, inadmissibility of anybody’s arbitrary interference into private affairs, necessity to freely exercise the civil rights, guarantee of reinstatement of civil rights in case of their violation, and judicial remedies. Subject matter of the civil law branch involves two groups of social relations: 1) material (property) relations which emerge between individuals in connection with property — material and other assets which appear in the form of goods and can be evaluated (land, subsoil, houses, money, negotiable instruments); 2) personal non-property relations which emerge in connection with nonmaterial assets (name, dignity, goodwill, right of authorship to scientific, literary and artistic works, etc.). These are of non-property, non-tangible nature, but can be connected to property relations (invention rights) or not (one’s health, life, etc.). The method of civil law is dispositive, i.e. it primarily uses authorisation of individuals to act at their sole discretion and initiative. The employment of this method is predetermined by the equality of parties in civil relations, their economic independence and autonomy. Therefore, one of the most important grounds for the origination of civil laws and obligations is contract (voluntary agreement between individuals). Section 1 Article 2 of the Civil Code of the Russian Federation envisages that civil legislation governs property and personal non-property relations, based on equality, autonomy of will and property independence of the participants. It also means that other property relations (tax, financial, administrative) do not comprise subject matter of civil legislation. Thus, civil law may be defined as a system of legal norms governing property and non-property relations connected thereto, which are based on equality and property independence of the participants, its main purpose being granting opportunities to individuals for full satisfaction of their needs and interests. Pursuant to Article 2 of the Civil Code of the Russian Federation, civil law governs the relations between persons engaged in business activities. The system of civil law of the Russian Federation is represented through the following elements. General part of civil law includes norms dedicated to the nature of the branch, the subjects and objects of civil relations, the grounds for their coming into existence, the timeframes of exercising and protecting civil rights, etc.

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Special part of civil law includes the majority of legal norms which can be grouped into sub-branches: — law of things (including property rights and limited proprietary rights); — law of obligations (certain types of contractual obligations to transfer the right to property, to perform works and render services); — law of intellectual property (right of authorship, invention, patent law, etc.); — law of succession.

15.2. Sources of Civil Law Sources of civil law are those forms of expression of binding norms of civil law which are acknowledged by state. There is a vast number of normative acts which contain norms of civil law. These include: 1. The Constitution of the Russian Federation; 2. The Civil Code of the Russian Federation and federal laws adopted in line therewith, designed to govern civil relations; 3. Decrees of the President of the Russian Federation; 4. Regulations of the Government of the Russian Federation; 5. Acts issued by ministries and other bodies of the executive branch of power (Article 3 of the Civil Code of the Russian Federation). Section 1 Article 4 of the Civil Code of the Russian Federation sets forth a principle whereby acts of civil legislation are not retroactive and are applied to relations which arose after these acts entered into force. Pursuant to Article 7 of the Civil Code of the Russian Federation, the generally recognised principles and norms of international law and international treaties of the Russian Federation are a component part of the Russian Federation legal system and are directly applicable to civil relations. The exception is where the treaty itself envisages that an intra-state act shall be issued for it to apply. If an international treaty of the Russian Federation sets forth different rules than those stipulated by civil legislation, the former shall apply. The content of Article 5 of the Civil Code of the Russian Federation illustrates that custom is also considered a source of civil law. A custom is a rule of behavior which has taken shape and is widely applied in a certain sphere of business activities, and which has not been stipulated by legislation, regardless of whether it has or has not been fixed in any document. However, section 2 Article 5 of the Civil Code of the Russian Federation expressly envisages that those customs which are contradictory to the provisions of legislation or agreement do not apply. Academic writers note that the acknowledgment of custom as a source of law is risky, since customs are not formalised or fixed in a strict manner, which can lead to abuse of discretion of those who apply the law and to unrecoverable

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discrepancies when applicable law is identified. Therefore, ethical and moral norms cannot be deemed a source of law (although they do underlie law)1. Customs should not be confused with business practices which are widespread but not obligatory. Business practices apply to parties’ relations if it is expressly stipulated. Russian legal doctrine does not recognise legal precedent as source of law. However, clarifications in application of various normative acts issued by the Plenary of the Supreme Court of the Russian Federation do contain the official interpretation of legal norms and are binding on lower judicial bodies.

Test questions and tasks 1. Please describe the key principles of civil regulation of social relations. 2. What is the system of civil law? 3. Please list the primary sources of civil law.

1

See: Civil Law. Textbook / Under the editorship of E.A. Sukhanov. M., 2004. P. 80.

Chapter 16. CIVIL RELATIONS 16.1. Definition, Structure and Types of Civil Relations In Russian legal doctrine, there is a twofold approach to the notion of “legal relation”. According to one approach, legal relation is a process of a legal norm influencing on and regulating already existing social relations, according to the second approach, legal relations are a specific type of social relations which arises only on the basis of a norm of law. Nevertheless, despite the differences between the above two approaches, it is undoubted that any legal relation arises as a result of legal norms influencing social relations. Civil relations are a type of legal relations arising between the participants of social relations, regulated by civil law. Civil relation is characterised by legal rights and obligations of its participants. Civil relation is a system of interrelated elements which is called structure of civil relations. It includes the following elements: 1. Subjective element of legal relations denotes their participants (persons). The number of such participants is not limited, but there should be at least two of them — the creditor and the debtor. Under Section 1 Article 2 of the Civil Code of the Russian Federation, citizens and legal persons may act as participants of civil relations. Besides, the Russian Federation, subjects of the Russian Federation and municipal entities may participate in some civil relations regulated by the civil legislation. A participant of civil relations must have legal capacity, including the capacity to have rights and fulfill obligations in civil-law transactions (that is, passive and active legal capacity). 2. Subject matter of legal relations, which, as a rule, denotes material as well as immaterial goods which are capable of satisfying the needs of the individual and in regard of which a legal relation, legal rights and obligations arise. 3. Nature of legal relations denotes the interaction of their participants which is defined by their legal rights and obligations. In other words, the nature of a legal relation is the aggregate of legal rights and obligations of the participants of such relation.

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4. Grounds for creation, alteration and cessation of legal relations, which are called juridical facts. Juridical facts are life circumstances connected with creation, alternation, and cessation of a legal relation. Under Article 8 of the Civil Code of the Russian Federation, civil rights and obligations arise as a result of: 1) contracts and other transactions; 2) acts of state and municipal agencies; 3) judicial decision which establishes legal rights and obligations; 4) acquisition of property on any basis allowed by law; 5) creation of objects of art, science, literature, inventions or other intellectual property; 6) infliction of damage to another person; 7) unjust enrichment; 8) other actions of individuals or legal entities; 9) events which create civil relations according to the legislation. The wide variety of juridical facts demands a classification. Juridical facts may be: a) events — circumstances which do not objectively depend on the will or mindset of individuals (e.g. natural disasters); b) deeds — facts which depend on the will of individuals since individuals commit them. Deeds, in their turn, may be classified into legal (contract execution, marriage registration) and illegal (all kinds of legal offences). Legal deeds may be: а) legal actions — which lead to legal consequences regardless of the individual’s intent (e.g. creation of a scientific work authomatically leads to creation of copyright); b) legal acts — which are specifically committed to create, change or end a civil relation (sale and purchase, lease, donation, etc.). There are the following types of civil relations: 1. pecuniary and non-pecuniary (depending on whether they have material goods as their subject matter); 2. absolute (an individual has a right which is relevant to all other individuals and entities — ownership rights, copyright) and relative (an individual’s right is relevant only to a certain obligee — sale and delivery, loan, etc.); 3. in rem (a property right belonging to an individual — ownership right, servitude, etc.) and in personam (dynamics of pecuniary legal relations which arise when an individual has the right to demand transfer of property, performance of works, etc. from another person).

16.2. Citizens (Individuals) as Participants of Legal Relations 16.2.1. Specific Features of a Citizen. Active and Passive Legal Capacity of a Citizen Participants of civil relations are called persons. Civil law (as opposed to many other branches of Russian law) provides the same set of rights to all individuals regardless of their citizenship (whether they are Russian citizens

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or not). Therefore, the terms “citizen” and “man/individual” are used as synonyms in civil law. An individual has a number of characteristics which concretize his or her legal status: name, age, sex, place of residence, etc. Under Article 19 of the Civil Code of the Russian Federation an individual acquires and exercises rights and obligations under his or her name, which includes first name and last (family) name, as well as middle (paternal) name unless otherwise provided by law or national custom (the notion of paternal name is not known to some national customs). In some cases provided by law an individual may use a pseudonym (an assumed name). An individual may change their name in accordance with the procedure provided by law. Such a change does not give rise to cessation or alteration of their rights and obligations accrued under the former name (Paragraph 2 Article 19 of the Civil Code). A place of residence is a place where an individual lives on a permanent basis or most of the time. A place of residence of a minor under fourteen years old or wards is the place of residence of their legal guardian, parent or adoptive parent. Only persons with full legal capacity may freely choose their place of residence. Minors aged fourteen to eighteen may choose their place of residence at the consent of their parents or legal guardians. Other factors which are important for civil relations and which lead to creation and development of certain legal relations are sex, age, health condition and other factors. Reaching a certain age is necessary to fully exercise a number of rights and perform obligations; a sex of a person should be considered when providing housing on the basis of a lease, etc. A citizen’s legal status is based on his legal capacity and competence, which consist of passive and active legal capacity. Pursuant to Article 17 of the Civil Code of the Russian Federation, civil passive legal capacity is defined as the capability to possess the civil rights and to perform duties and is equally due to all the citizens. A citizen’s passive legal capacity arises at the moment of his birth and ceases with his death. Therefore, passive legal capacity which is equally due to all citizens, represents his capability to possess civil rights and to perform obligations set forth by law. Passive legal capacity is intrinsic with the man, who possesses it from his birth and till death, regardless of age, state of health (mental included), and other characteristics. Law may set limits on the citizen exercising certain rights, but passive legal capacity may not be limited. Civil active capacity is the citizen’s capability to acquire and exercise by his actions civil rights, to create for himself civil duties, and to discharge them. Active capacity arises in full volume with the citizen’s coming of age, i.e. upon reaching the age of 18 years. In case it is admitted by law to enter into marriage before the citizen’s reaching the age of 18 years, such citizen acquires the active

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capacity in full volume from the moment of his entering into marriage (Article 21 of the Civil Code of the Russian Federation). Legal active capacity designates the citizen’s capability to perform various legally binding actions (transactions) independently — the capacity to contract (enter into a contract), acquire and dispose of property and be personally liable for property damage inflicted — delictual capacity (inflicting damage upon or destruction of other’s property). As opposed to civil passive capacity which is equally attributable to all the citizens, civil active capacity is unequal, and its volume depends on one’s age. Based on this criterion, full and partial active capacity are distinguished. Full active capacity arises from the moment of coming of age (reaching the age of 18 years), entering into marriage, or recognising a citizen fully capable (emancipation). Thus, pursuant to Article 27 of the Civil Code of the Russian Federation, a minor who has reached the age of 16 years may be declared to have full active capacity if he is employed under a labour contract, or if he engages in business activities upon the consent of his parents, adopters, or trustee. The minor is declared as having acquired full active capacity (is emancipated) by the decision of the guardianship and trusteeship body — upon the consent of both of his parents, adopters, or trustee, or, in the absence of such consent — by court decision. Minors possess partial active capacity. The Civil Code of the Russian Federation distinguishes between the active capacity of minors aged 14 to 18 years and the active capacity of minors aged 6 to 14 years (active capacity of young minors). Pursuant to Article 26 of the Civil Code of the Russian Federation, minors aged 14 to 18 years have the right to perform the following actions independently: 1) to dispose of their earnings, student’s allowance, or other incomes; 2) to exercise the author’s rights to a work of science, literature or art; 3) to make deposits into credit institutions and dispose of these; 4) to effect petty everyday deals and other deals as set forth by law. In other cases, deals effected by such minors shall be effected upon the written consent of their legal representatives — parents, adopters, or trustee. Minors aged 6 to 14 years (young minors) have the right to perform the following actions independently: 1) petty everyday deals; 2) deals aimed at deriving free profit, which are not subject to the notary’s certification or to state registration; 3) deals involving disposal of means provided by their legal representatives or, upon the latter’s consent, by a third person for a definite purpose or for free disposal. In other cases, only young minors’ parents, adopters, or guardians may perform transactions on the formers’ behalf. Article 30 of the Civil Code of the Russian Federation sets forth the possibility of restricting active capacity of citizens who, as a result of their abuse

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of alcohol or drug addiction have put their families into a precarious financial position. Trusteeship is established over such citizens. They are entitled to effect petty everyday deals independently, while other transactions may be effected upon the trustee’s consent. The trustee receives and spends wages, pension, and other incomes of the citizen restricted in active capacity by court. A citizen who, as a result of a mental derangement, can neither realise the meaning of his actions nor control them, may also be recognised by court as legally incapable. If the grounds, by force of which the citizen was recognised as legally incapable, have ceased to exist, the court shall repeal the restriction in active capacity (section 2 Article 30 of the Civil Code of the Russian Federation). A citizen who, as a result of a mental derangement, can neither realise the meaning of his actions nor control them, may also be recognised by court as legally incapable. All the transactions on his behalf are effected by a guardian (Article 29 of the Civil Code of the Russian Federation). Should the citizen’s capability to understand the meaning of his actions and to control them, restore, the court shall recognise him as legally capable. It is worth emphasising that a citizen may be exclusively recognised as legally incapable as a result of a mental derangement, and not any physical impairment, mutilation, illness, etc. 16.2.2. Business Activities of a Citizen A citizen’s business activities are one of the elements of their civil capacity. Business activity is an independent activity, performed at one’s own risk, aimed at systematically deriving a profit from the use of the property, the sale of commodities, the performance of work or the rendering of services by the persons, registered in this capacity in conformity with the law-established procedure (section 1 Article 2 of the Civil Code of the Russian Federation). Any citizen is entitled to conduct business without forming a legal entity, starting from the moment of registration as individual entrepreneur. Any legally binding actions an entrepreneur commits are on their behalf and at their own risk. Pursuant to Article 8 of the Federal Law “On the state registration of legal entities and individual entrepreneurs”1, state registration shall be effected within five business days upon submitting the necessary documents to the registering authority. An individual entrepreneur who is unable to settle creditors’ claims arising from the former’s business activities may be deemed insolvent (bankrupt) by court. Once such a decision is taken by court, an individual entrepreneur’s state registration becomes invalid. During the implementation of bankruptcy proceeding, an individual entrepreneur’s creditors by obligations not related to his 1 See Federal law of August 8, 2001 # 129-FZ (as of July 13, 2015) “On state registration of legal entities and individual entrepreneurs” // Rossiyskaya Gazeta. 2001. August 10. # 153–154.

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performance of business activities, are also entitled to file their claims (Article 25 of the Civil Code of the Russian Federation). Pursuant to section 4 Article 134 of the Federal Law “On insolvency (bankruptcy)”1, an individual entrepreneur’s creditors’ claims, should he be deemed bankrupt, are met with the property he owns according to the following priority ranking: — the first priority ranking is for settlements relating to the claims of the citizens to whom the debtor is liable for a harm inflicted to life or health; — the second priority ranking is for settlements relating to disbursement of severance benefits and remuneration for the labour of the persons who are working or have been working under a labour contract; — the third priority ranking is for settlements with other creditors. Article 24 of the Civil Code of the Russian Federation sets forth a principle whereby a citizen bears responsibility for his obligations with his entire property, with the exception of that property, upon which, in conformity with the law, no penalty may be imposed. An individual entrepreneur has both personal property as well as property which is solely used for business purposes. However, the law does not distinguish between the two. It means that, regardless of the fact whether an individual entrepreneur uses his property for business purposes or personal affairs, he will bear responsibility with his entire property. 16.2.3. The Guardianship, the Trusteeship, the Patronage Not every citizen is able to exercise their rights and perform obligations, due to partial capacity or incapacity. Therefore, guardianship and trusteeship are established to protect the rights and interests of legally incapable or partially capable citizens. Guardianship and trusteeship over minors are also established for educational purposes (Article 31 of the Civil Code of the Russian Federation). Guardianship is established over minors (aged 6 to 14) and citizens who have been recognised by court as legally incapable as a result of mental derangement. Guardians are representatives of their wards by operation of law and effect all the necessary transactions on the latter’s behalf and in their interests and are liable for their actions. Trusteeship is established over minors aged from 14 to 18, as well as citizens who have been restricted in their legal capacity. Trustees give their consent for effecting those transactions which the citizens under their trusteeship are not entitled to effect independently. Trustees render assistance to their wards in their exercising their rights and duties, and protect them from possible maltreatment on the part of third persons. Trustees’ obligations are more limited in comparison with those of guardians. 1 See Federal Law of October 26, 2002 # 127-FZ (as of July 13, 2015) “On insolvency (bankruptcy)” // Rossiyskaya Gazeta. 2002. November 2. # 209–210.

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Guardianship and trusteeship bodies are the executive bodies of subjects of the Russian Federation. A guardian or a trustee is appointed by the guardianship and trusteeship body by the place of residence of the person in need of guardianship or trusteeship, within one month from the moment when the said bodies have become aware of the need to establish guardianship or trusteeship over the citizen. If no guardian or trustee is appointed for the person in need of guardianship or trusteeship, the execution of the duties of a guardian or a trustee is temporarily imposed upon the guardianship and trusteeship body (Article 35 of the Civil Code of the Russian Federation). A guardian or a trustee can be only appointed upon such body’s consent, and their duties are executed free of charge. Guardians, as well as trustees, are obliged to take care of the maintenance of their wards, to provide them all essential services and medical treatment, and to protect their rights and interests. Pursuant to Article 37 of the Civil Code of the Russian Federation, a guardian or a trustee are entitled to dispose of the incomes of their ward, including the sums of social disbursements provided for their subsistence, except for income which the ward is entitled to dispose of on their own. Such disposal shall be effected exclusively in the interests of the ward and with preliminary consent of the body of guardianship and trusteeship. On the contrary, patronage is a special form of guarding the interests of adult legally capable citizens, who cannot exercise their rights and perform their obligations on their own due to the state of their health (ill, elderly, handicapped). An aid of such a person may be appointed on their consent, as well as on that person’s consent. The aid performs actions in the interests of the citizen who is under patronage, on the basis of a contract entered into by and between these two persons. Therefore, the aid’s and the citizen’s relations are of contractual nature. 16.2.4. Recognising the Citizen as Missing for an Unknown Reason and Declaring the Citizen as Dead A citizen’s long-term absence in their place of residence or lack of any information on their whereabouts is not a matter of indifference for their family and counterparties (creditors, employer). Moreover, such citizen’s property is left unattended and may be damaged or embezzled. In order to eliminate legal uncertainty, the lawmaker created the institute of missing for an unknown reason (absence in a place unknown). Article 42 of the Civil Code of the Russian Federation sets forth that a citizen may be recognised as missing for an unknown reason if at the place of his residence there is no information on the place of his stay in the course of one year. The property belonging to the citizen who has been recognised as missing for an unknown reason, should it require permanent management, is trans-

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ferred by a court decision to a person who is appointed by the guardianship and trusteeship body and who acts based on a contract of confidential management, entered into with this body. Allowance is paid out of this property to the citizens whom the person recognised missing for an unknown reason is obliged to support, and debts by other obligations of the said person are serviced (Article 43 of the Civil Code of the Russian Federation). Should the citizen recognised missing for an unknown reason appear or should his place of stay be discovered, the court repeals its decision on recognising the citizen as missing for an unknown reason. On the grounds of this court decision, the management of this citizen’s body is recalled. As opposed to absence in the place of stay, declaring citizen as dead is based on the presumption (assumption) of his death. Declaring citizen as dead is irrespective of the fact whether he had previously been recognised as missing for an unknown reason. Pursuant to Article 45 of the Civil Code of the Russian Federation, a citizen may be declared by the court as dead, if there has been no information at his place of residence about his place of stay within 5 years. Should the citizen disappear under life-threatening circumstances or under such circumstances which give one a reason to assume his death of an accident, the time period comprises 6 months. A military man or other citizen who has been missing in connection with military operations cannot be declared as dead until the expiry of two years from the day of cessation of military operations. Should the citizen who had been declared dead appear, the court repeals its respective decision. Regardless of the time of his showing up, the citizen is entitled to claim return of surviving property which was transferred to other persons free of charge after declaring the citizen dead. If the citizen’s property was transferred to other persons on legal grounds for consideration (for value), it shall not be returned, unless it is shown that persons obtaining such property were aware of the fact that the citizen who had been declared dead is, in fact, alive.

16.3. Legal Entities as Parties to Civil Relations 16.3.1. The Definition and Legal Capacity of a Legal Entity Legal entities (organisations established for express participation in business transactions) are equal parties to civil relations along with citizens (persons). A legal entity is an organisation which possesses set-apart property and is liable by its obligations with such property, can bear civil obligations, sue, and be sued. A legal entity must be registered in the State Register of Legal Entities. Thus, one may list the following features of legal entities: 1. organisational structure set forth in the constituent document (the legal entity’s bodies, their scope of authority);

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2. property severalty, i.e. having set-apart property which is distinguished from the entity’s shareholders’ property. The severalty feature is illustrated by the registered capital, balance sheet, and bank account; 3. independent participation in civil commerce, which is epitomised by the capability to: — acquire and exercise civil rights on the entity’s own behalf; — be liable with its property by its obligations; — sue and be sued. A legal entity also has its name and registered office, which are indicated on its constituent documents. A legal entity’s capacity lies in the fact that it can enjoy civil rights which correspond to its business purposes set forth in the constituent document, as well as bear obligations connected therewith. A legal entity’s rights may only be restricted as prescribed by law. Such a decision may be disputed in court. A legal entity is liable by its obligations with the entire property in its possession. Article 56 of the Civil Code of the Russian Federation expressly envisages that the shareholder (participant) of a legal entity is not liable by the entity’s obligations, and the entity, in its turn, is not liable by the obligations of its shareholder (participant), unless otherwise prescribed by law. A legal entity acquires civil rights and undertakes civil obligations through its bodies operating in accordance with law. A body is a part of a legal entity, the former not being an independent subject of civil transactions, but merely expressing the legal entity’s will and acting on its behalf. 16.3.2. Establishment and Termination of Legal Entities. Bankruptcy One distinguishes between two manners of establishment of a legal entity: licensing (preliminary permission required) — meaning that a license (authorisation) by a special government body is required for the establishment of a legal entity (insurance companies, banks) and non-licensing (no preliminary permission required) — meaning that mere compliance with legal norms (and no license by a special government body) is required for the establishment of a legal entity. Pursuant to Article 50.1 of the Civil Code of the Russian Federation, a legal entity may be established by a respective shareholder’s (shareholders’) decision, in the former case such a decision having been taken single-handedly, and in the latter — unanimously. Said decision must indicate the data on establishment of the entity, confirmation of its charter, on the amount, manner and timeframe of raising the entity’s property, on the election (appointment) of the entity’s bodies, as well as other information as prescribed by law. A legal entity is subject to obligatory state registration (which function is exercised by the Federal Tax Service of the Russian Federation and its territorial divisions). The state registration data are entered into the unified state register of legal entities, which is publicly accessible. A legal entity is

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deemed established as of the day of entering a respective record into the register of legal entities. Pursuant to Article 8 of the Federal law “On the state registration of legal entities and individual entrepreneurs”1, state registration must be effected within 5 business days upon submitting the necessary documents to the registering body, unless otherwise prescribed by law. Failure to submit or non-timely submitting of necessary information to be entered into the state registers, as well as submitting scienter inaccurate information is considered criminal and administrative offence and is punishable under respective Russian legislation (Article 25 of the said Federal law). Termination of a legal entity may be effected by reorganisation or by liquidation. Reorganisation of a legal entity is effected by the decision of its shareholders (participants) or of its body authorised therefor by the entity’s constituent document, and can be effected in the following ways (forms): — merger (the rights and duties of each of the legal entities transfer to the newly emerged legal entity); — affiliation (the rights and duties of the affiliated legal entity transfer to another legal entity); — division (the rights and duties of a legal entity transfer to the newly emerged legal entities pursuant to the transfer deed); — branching off from the structure of the legal entity (the rights and duties of the reorganised legal entity transfer to each of the newly emerged legal entities pursuant to the transfer deed); — transformation (the organisational form of the legal entity is changed, but the rights and duties of the reorganised legal entity towards third parties remain unchanged). Within three business days after the date of a decision of its reorganisation, the legal entity must provide information in writing to the state body responsible for the state registration of legal entities, about the commencement of a reorganisation procedure and the form of reorganisation (Article 60 of the Civil Code of the Russian Federation). This requirement is designed to guarantee the rights of creditors of the reorganised legal entity. The creditors are entitled to claim early performance of the debtor’s obligations; should such performance be inconceivable, the creditors are entitled to termination of the obligation and suing for damages. Liquidation of a legal entity results in its termination with no transfer of rights and duties to other entities by way of universal succession. A legal entity may be terminated by the decision of its shareholders (participants) or its body authorised therefor by the entity’s constituent document, or by court decision. 1 See Federal Law of August 8, 2008 # 129-FZ (as of July 13, 2015) “On the state registration of legal entities and individual entrepreneurs” // Rossiyskaya Gazeta. 2001. August 10. # 153–154.

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Said court decision is taken in the event of gross violation of law or of exercise of activity prohibited by law or without a proper permit (license). Section 4 Article 61 of the Civil Code of the Russian Federation specifically underlines that from the moment of decision on liquidation of a legal entity, its obligations towards its creditors are deemed mature. The shareholders (participants) of a legal entity or a body which have taken a decision on its liquidation shall appoint a liquidation commission (liquidator) and establish the procedure and the term thereof, as prescribed by law. From the moment of appointment of the liquidation commission, it assumes the authority in the management of the legal entity’s affairs, including the authority to settle the creditor’s claims. Should the liquidation commission determine insufficiency of the entity’s property to satisfy the creditor’s claims, further liquidation may only be effected as set forth by the insolvency (bankruptcy) legislation. The procedure of liquidation of a legal entity is set forth in Article 63 of the Civil Code of the Russian Federation. First of all, the liquidation commission publishes the information on the liquidation of the legal entity in mass media, also indicating the procedure and the term for the claims to be filed by the creditors. The minimum term is 2 months upon the publishing of the advertisement on liquidation. Then, the liquidation commission compiles an interim liquidation balance containing information on the structure of the legal entity’s property, on the list of the creditors’ claims, and on the results of their examination. If the monetary means at the disposal of the legal entity under liquidation prove to be insufficient to satisfy the creditors’ claims, the liquidation commission shall organise the sale of the legal entity’s property. Should the property of the legal entity under liquidation prove to be insufficient to satisfy the creditor’s claims, the liquidation commission must file an insolvency application with an arbitrazh (commercial) court. The payment of monetary amounts to the creditors of the liquidated legal entity shall be effected by the liquidation commission according to the following order of priority: — first, claims of citizens are satisfied, to whom the liquidated legal entity is liable for harm inflicted to their life or health; — second, settlements are effected for the payment of retirement allowances and remuneration for the labour of persons who work or have been working under a labour contract; — third, settlements are effected for compulsory payments to the budget and non-budget funds; — fourth, other creditors’ claims are satisfied. After the settlements with the creditors have been completed, the liquidation commission compiles the liquidation balance, the remaining property being transferred to the shareholders of the legal entity.

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The bankruptcy proceeding is governed by the Federal Law “On insolvency (bankruptcy)”1. Pursuant to Article 2 thereof, a legal entity is deemed insolvent if it has proven incapable to satisfy the claims of its creditors in relation to monetary obligations and/or to execute the duty of making mandatory payments within 3 months upon the due date. A bankruptcy proceeding may be commenced by an arbitrazh court if the claims to a legal entity add up to 300,000 rubles (Section 2 Article 6 of the Federal Law “On insolvency (bankruptcy)”). Pursuant to Article 51 of the said Federal Law, a bankruptcy case shall be considered at an arbitrazh court hearing within a term not exceeding seven months after the receipt by the court of a bankruptcy application. As a result of consideration of a bankruptcy case, the arbitrazh court adopts one of the following decisions: — a decision to declare the debtor bankrupt and to commence liquidation proceedings (proceedings applicable to the debtor which is deemed insolvent, designed to satisfy the creditors’ claims accordingly); — a decision to refuse to declare the debtor bankrupt; — a ruling on the establishment of financial rehabilitation (proceedings applicable to the debtor which is deemed insolvent, designed to restore the debtor’s solvency and have the debt repaid under a debt repayment schedule); — a ruling on the establishment of external administration (proceedings also designed to restore the debtor’s solvency); — a ruling on termination of bankruptcy proceedings; — a ruling on dismissing the bankruptcy application; — a ruling on approving a settlement agreement (voluntary arrangement between the debtor and the creditor).

16.4. Types of Legal Entities 16.4.1. Corporate Legal Entities A great number of various legal entities take part in civil transactions. These legal entities can be distinguished based on various criteria. Russian civil legislation which was drastically amended in the year 2014 upholds the position that legal entities can either be corporate or unitary (Article 65.1 of the Civil Code of the Russian Federation), and constructs further classification of legal entities based on this criterion. For instance, legal entities whose participants have the right to membership and appoint that entity’s supreme body are called corporate legal entities (corporations). 1 See Federal Law of October 26, 2002 # 127-FZ (as of July 13, 2015) “On insolvency (bankruptcy)” (with amendments entering into force on July 25, 2015) // Rossiyskaya Gazeta. 2002. November 2. # 209–210.

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The Civil Code of the Russian Federation lists the following corporate legal entities (corporations): economic partnerships and companies, peasant (farmer) households, production and consumer cooperatives, social organisations, social movements, associations (unions), homeowners association, Cossack societies and indigenous minorities’ societies of the Russian Federation. The participants of the corporation (shareholders, members, etc.) are entitled to take part in managing the corporate affairs, obtain the information on the corporation’s activity and familiarize themselves with its books and other documentation, dispute legally binding corporation’s bodies’ decisions, claim damages on behalf of the corporation and dispute its transactions. General meeting of shareholders is the higher body of the corporation (Article 65.3 of the Civil Code of the Russian Federation). A one-man executive body is formed (director, general director, chairman, etc.), along with a collegiate executive body (optional, it can be called board, directorate, etc.) A collegiate managing body may also be formed along with the executive body (supervisory council), which monitors the executive bodies’ activity and performs other functions as provided for by law or charter. Corporate legal entities may either be commercial (seeing deriving profits as the chief goal of their activity) or non-commercial (not seeing deriving profits as such a goal and not distributing the derived profit among their participants). Commercial corporate organisations are the following. 1. General partnership. Pursuant to section 1 Article 69 of the Civil Code of the Russian Federation, general partnership is the partnership, whose participants (general partners) are engaged, according to the agreement signed between them, in business activities on behalf of the partnership and are liable by its obligations with the property in their possession. General partnership is created and operates based on a constituent agreement. Each participant to a general partnership is entitled to act on behalf of the partnership, unless the constituent agreement prescribes joint management of affairs or specific distribution of authority therein between the participants. The profits and losses of the general partnership are distributed among its participants proportionately to their shares in the joint capital, unless otherwise prescribed by the constituent agreement or other arrangement between the participants. No agreement on exclusion of any participant from the distribution of profits and losses is permitted (Article 74 of the Civil Code of the Russian Federation). The participants of the general partnership jointly bear subsidiary liability by the partnership’s obligations with their entire property. 2. Limited (commandite) partnership is a partnership where, alongside with the participants engaged in the performance of business activity on behalf of the partnership and liable by its obligations with their property (the general partners), there is (are) one or several investor participants (commanditaires) who bear the risk of losses in connection with the partnership’s activity within the amount of their investments and who do not take part in the performance of the partnership’s business activity.

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The number of investor participants in a commandite partnership cannot exceed 20 persons, otherwise that partnership must be reorganised into an economic company. A commandite partnership’s affairs are managed by general partners. The investors are not entitled to partake in managing and administering the partnership’s affairs, to dispute the general partners’ actions therein, but they are entitled to receive part of the partnership’s profits proportionate to their investment, as prescribed by the constituent agreement. 3. Peasant (farm) household is a voluntary association of citizens based on membership for joint production or other economic activity in the agrarian field, which is based on personal input and unification of property investments (Article 86.1 of the Civil Code of the Russian Federation). The property of a peasant (farm) household belongs to it on the basis of the right of ownership, but the members thereof (the household being established as a legal entity) bear subsidiary liability by its obligations. 4. Limited liability company is a company whose authorised capital is divided into shares. As opposed to the above organisations, the participants of a limited liability company are not liable by its obligations and bear the risk of losses in connection with the company’s activity within the cost of shares they hold (section 1 Article 87 of the Civil Code of the Russian Federation). The number of participants in a limited liability company cannot exceed fifty, otherwise it must be reorganised into a joint stock company. It follows from the above said that a limited liability company can have a sole participant thereto. The founders of a limited liability company enter into an agreement in writing on the company’s establishment defining the procedure for their joint activities aimed at the company’s establishment, the amount of the company’s authorised capital, the rates of their shares in the company’s authorised capital, and other terms. 5. Joint stock company is an economic company whose authorised capital is divided into a definite number of shares. The participants of a joint stock company are not liable by its obligations and bear the risk of losses in connection with its activity within the cost of shares in their possession. A joint stock company is deemed public if its shares and negotiable instruments convertible into shares are publicly offered or listed in the manner prescribed by negotiable instruments laws (Article 66.3 of the Civil Code of the Russian Federation). Pursuant to section 5 Article 97 of the Civil Code of the Russian Federation, a number of shares in possession of one shareholder, as well as the maximum number of votes at one shareholder’s disposal cannot be limited. Therefore, a joint stock company may include (or be founded by) single person. A joint stock company’s constituent document is its charter approved by the founders.

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A joint stock company’s charter must indicate the name of the legal entity and the place of its location, the terms on the categories of shared issued by the company, on their face value and number, on the size of the company’s authorised capital, on the rights of the shareholders, on the structure and scope of authority of the company’s management bodies, on the procedure of decision-making (section 3 Article 98 of the Civil Code of the Russian Federation). 6. Production cooperative is a voluntary association of citizens, based on membership and established for joint production or other kind of economic activity (manufacture, processing, and sale of industrial, farming, and other type of produce, performance of works, trade, rendering of everyday and other services), based on their personal labour and other input and on unification of property participation shares of its members (Article 106.1 of the Civil Code of the Russian Federation). The members of a production cooperative bear subsidiary liability by the cooperative’s obligations. A production cooperative’s constituent document is its charter approved by the general meeting of its members, whose quantity may not be less than five. The property in possession of a production cooperative is divided into shares of its members as provided for by the charter. The profit of a production cooperative is distributed among its members in accordance with their labour input, unless otherwise provided for by the law and by the charter. Non-commercial corporate organisations include the following legal entities: 1. Consumer cooperative is a voluntary association of persons or entities based on membership, established for satisfying the participants’ material and other needs by its members putting together their property participation shares (Article 123.2 of the Civil Code of the Russian Federation). As opposed to a production cooperative, the consumer cooperative is a nonprofit organisation, and its members have no obligation of labour input. Consumer cooperatives include house-hold and dacha cooperatives; 2. Social organisation is a voluntary association of citizens based on the community of their interests for the purpose of satisfying their spiritual or other non-material needs, for representation and protection of their common interests and for achieving other legitimate goals (architecture, science, patriotic societies, etc.). Pursuant to section 2 Article 123.4 of the Civil Code of the Russian Federation, a social organisation is the owner of its property. Its participants (members) do not retain the right to property which they have transferred into the possession of these organisations, including membership fees. The participants of a social organisation are not liable by its obligations, and vice versa; 3. Social movement is a mass, non-membership based social association pursuing socially useful purposes supported by its participants1; 1 For greater detail see Federal Law of May 19, 2005 # 82-FZ (as of March 8, 2015) “On social associations” // Rossiyskaya Gazeta. 1995. May 25. # 100.

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4. Association (union) is a community of legal entities and (or) citizens based on voluntary or, as prescribed by law, obligatory membership and established for the representation and protection of common interests (including professional), for the achievement of socially useful purposes, as well as of other legitimate and non-profit purposes. Such an organisational legal form is utilised by associations of persons pursuing the aim of coordination of their entrepreneurial activities, representation and protection of common property interests, by professional unions of persons who do not aim for protecting labour rights and interests; 5. Partnership of housing owners is a voluntary association of real property owners (office in a building, apartment in a condo, dacha land plot, etc.) established for joint ownership and enjoyment of property (chattels) which are by operation of law in their community property or common use. Non-profit corporate organisations also include Cossack societies, indigenous minorities’ societies of the Russian Federation, legal chambers and legal practices. 16.4.2. Unitary Legal Entities As opposed to the above commercial and non-profit corporate legal entities, the founders of unitary legal entities are not their participants and do not acquire the right of membership therein. Commercial unitary legal entities include state and municipal unitary enterprises. Pursuant to Article 113 of the Civil Code of the Russian Federation, a unitary enterprise is a commercial organisation, not endowed with the right of ownership to the property allotted thereto by its owner. The property of a unitary enterprise is indivisible and cannot be distributed according to instalments (participation shares, shares), including among its employees. The property of a state-run or municipal enterprise remains in the state or municipal ownership, and it belongs to the respective enterprise by the right of economic or operative management. Section 2 Article 2 of the Federal Law of November 14, 2002 “On staterun and municipal unitary enterprises” lists the following types of unitary enterprises established and operating in Russia: — unitary enterprises established on the basis of the right of economic management (federal state enterprise, state enterprise of a subject of the Russian Federation, and municipal enterprise); — unitary enterprises established on the basis of the right of operative management (federal treasury enterprise, treasury enterprise of a subject of the Russian Federation, and municipal treasury enterprise)1. Article 295 of the Civil Code of the Russian Federation sets forth that the owner of the property in economic management in conformity with law 1 See Federal Law of November 14, 2002 # 161-FZ (as of July 13, 2015) “On state-run and municipal unitary enterprises” // Rossiyskaya Gazeta. 2002. December 3. # 229.

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resolves the issues involved in the establishment of the enterprise, in defining the objective and goals of its activity, in its reorganisation and liquidation, appoints the director (head) of the enterprise, exerts control over the use in conformity with the stipulated purpose and over the maintenance of the property assigned thereto. The owner has the right to a share of profit derived from the use of the property in economic management of the enterprise. The enterprise is entitled overall to dispose of the profit derived. Alongside with that, an enterprise is not entitled to sell the immovable property which belongs to it by the right of economic management, nor is it entitled to rent it out, mortgage it, contribute it as an investment into authorised (joint) capital of economic companies and partnership or otherwise dispose of it without the owner’s consent. However, an enterprise is entitled to independent disposal of movable property. An enterprise and treasury enterprise which possess property by the right of operative management solely possess and use this property as prescribed by law, in strict accordance with the purposes of their activity and designation of that property. They are entitled to dispose of such property with the owner’s consent. The owner of the property has the right to withdraw excessive property, property not used or used not to the purpose. The owner of this property determines the manner of distribution of profits. Non-profit unitary legal entities include: 1. fund is a unitary non-profit, non-membership based organisation established by citizens and (or) legal entities on the basis of voluntary property contributions and pursuing public, charity, cultural, educational or other socially useful goals; 2. institution is a unitary non-profit organisation established by the owner for the performance of managerial, sociocultural or other functions of nonprofit nature; 3. autonomous non-profit institution is a unitary non-profit, non-membership based organisation established on the basis of property contributions made by citizens or legal entities for the purpose of rendering services in non-profit spheres: education, medicine, culture, science, etc.; 4. religious organisation is a voluntary association of citizens and other individuals who reside permanently and lawfully at the territory of the Russian Federation, established for the purpose of joint confession and amplification of faith and duly registered as a legal entity.

16.5. Objects of Civil Rights Objects of civil rights include material and non-material benefits (or the process of their creation) which are the reason for the subject’s engagement in civil relations. An object of civil rights and an object of civil relations are synonymous.

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It is quite natural that not every benefit can become an object of civil relations, but only those that can satisfy the subjects’ interests. Article 128 lists the objects of civil rights. They include items, including money and documentary securities, other property, including noncash money, non-documentary securities, property rights; results of works and rendering of services; protected results of intellectual activity and means of individualisation which are equated to them; non-material benefits. Some of the mentioned objects of civil rights can be restricted in circulation, i.e. transactions with such objects are allowed only by authorisation of competent authorities (land, subsoil, weapons, precious metals, etc.). The primary share of objects of civil rights is property, which represents a total of items, property rights, and obligations. Items include means of production and consumer goods, they can be movable or immovable (such objects cannot be shifted without causing disparate damage to their purpose). Items can be represented in the form of a unified property complex (enterprise), be divisible and indivisible (whose division is impossible without destructing, damaging, or changing their purpose). Money and securities are a special type of items. Non-material values (benefits) as objects of civil rights, pursuant to Article 150 of the Civil Code of the Russian Federation, include life and health, personal dignity and immunity, honor and good name, business reputation, immunity of private life, personal and family secret, right to free movement and choice of place of residence, right to name, authorship rights, and other non-material values. The lawmaker underlines that non-material values which belong to the citizen since his birth or by operation of law are inalienable and cannot be transferred to another person. Article 151 of the Civil Code of the Russian Federation sets forth that if moral damage (physical or moral sufferings) is inflicted upon a citizen by actions violating his personal non-property rights, the court may impose upon the culprit the duty to pay out monetary compensation for said damage. The means of protecting non-material values also include the citizen’s right to claim in court to refute the information discrediting his honor, dignity or business reputation, unless the person who has disseminated that information can show that such information is authentic. Pursuant to Article 152 of the Civil Code of the Russian Federation, the refutation shall be effected in the same or analogous manner in which it was disseminated. In 2013, Article 152.2 was introduced into the Civil Code of the Russian Federation, devoted to the protection of a citizen’s private life. The article sets forth that collection, keeping, dissemination or usage of any private life related information is disallowed without such citizen’s consent, namely information on his descent, place of residence or stay, personal and family life.

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16.6. Deals and their Invalidity One of the primary grounds for arising of civil relations lies in deals, which are actions performed by citizens and legal entities (including public formations — the state, subjects and municipal entities of the Russian Federation) aimed at establishment, modification or cessation of civil rights and obligations. Therefore, a deal is a willful action committed with a certain intention — induce, change, or terminate some legal relation. A legal purpose which is pursued by the deal is called the ground of a deal. In the meaning of Article 154 of the Civil Code of the Russian Federation, a deal can be either unilateral (one party’s will is required and sufficient for its performance — e.g., last will and testament) or bilateral, or multilateral (such deals are contracts). Thus, expression of concerted will is required for entering into a contract (either of two parties — bilateral deal, or three or more parties — multilateral deal). Apart from the above, deals can be: — consensual (these give rise to civil rights and obligations from the moment of the parties’ achieving agreement on all the terms of the deal — sale and purchase, lease, work contract) and real (mere agreement between the parties does not suffice; transfer of the item or commission of other action is required — donation, loan, warehousing); — non-gratuitous (one party’s obligation to provide some material or other benefit corresponds to the other party’s obligation to perform some other action — lease, sale and delivery, etc.) and gratuitous (no obligation of consideration); — causal (the purpose of the deal, along with the parties’ rights and obligations are clear — sale and purchase, lease, sale and delivery, freight, etc.) and abstract (the parties’ rights and obligations may not correspond to the ground, or the purpose of the deal — issuance of a bill of exchange, transfer of securities. The following textbook case epitomizes the above: a buyer issued a bill of exchange to the seller. The latter failed to deliver the goods and transferred the bill of exchange to a third party. Even though the goods were never delivered and the sale and delivery contract was considered invalid, the buyer may not dishonor the bill of exchange, since it is a non-stipulated obligation of the drawer of the bill to pay to the payee the sum indicated on the bill at the time specified1); — fixed-term (the term of the contract is specified — sale and delivery, performance of works) and open-end (lease contract concluded for an indefinite term); — fiduciary (trust-based relations — agency, etc.) and non-fiduciary. Deals can be concluded orally or in writing (simple written or notarised forms). 1

See Civil Law. Textbook / Under the editorship of E. A. Sukhanov. M., 2004. P. 454.

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Pursuant to Article 159 of the Civil Code of the Russian Federation, a deal for which no written (simple or notarised) form is stipulated by law or by agreement of the parties, can be effected orally. All deals may be effected orally which are performed at their execution, with the exception of deals for which notarised form has been established and of deals the non-observance of simple written form of which causes their invalidity. Article 161 of the Civil Code of the Russian Federation lists the requirements under which simple written form is obligatory for the deals of legal entities between themselves and with citizens, the deals of citizens between themselves for the sum exceeding 10 thousand rubles, and, if stipulated by law, regardless of the sum of the deal. The non-observance of the simple written form of the deal shall, in the case of a dispute, deprive the parties of the right to refer to testimony for confirmation of the deal and of its terms, but does not deprive them of the right to show written or other evidence. In cases expressly provided for by law or by the parties’ agreement, non-observance of the simple written form of the deal entails its invalidity (Article 162 of the Civil Code of the Russian Federation). Notarial certification of deals is required if expressly stipulated by law (e.g., life estate agreement) or by the parties’ agreement (even though not obligatory by operation of law). If state registration is stipulated by law for certain deals, such deals entail legal consequences upon such registration (sale of real property). Invalidity of a deal means that it does not possess the properties of a legal fact entailing civil consequences anticipated by the subjects. In other words, invalid deals do not entail legal consequences, except for those connected to their invalidity. Pursuant to Article 166 of the Civil Code of the Russian Federation, invalid deals can be divided into disputable and void. A disputable deal is one that has been deemed invalid by court on the grounds set forth by law (deals made by a person restricted in legal capacity). A void deal is a deal that is invalid on the grounds set forth by law, regardless of the fact of being deemed invalid by court (a deal made by a young minor). A claim for recognising a disputed deal invalid may be filed with the court by a party to the deal or by other person indicated by law. A disputable deal may be deemed invalid if it infringes the rights and legitimate interests of the claimant or entailed unfavorable consequences for him. A claim for application of the consequences of a void deal may be filed with the court by a party to the deal or by other person indicated by law. Pursuant to the Civil Code of the Russian Federation, the following deals are deemed invalid: — violating legal or other lawful requirements (Article 168 of the Civil Code of the Russian Federation); — aimed at a goal contrary to the foundations of law and order or morality (Article 169 of the Civil Code of the Russian Federation);

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— sham and feigned deals. A sham deal is one effected for the form’s sake, without an intention to induce respective legal consequences (void); feigned deal is one effected for the purpose of covering another deal, including a deal on other terms (void) (Article 170 of the Civil Code of the Russian Federation); — effected by a person recognised as legally incapable as a result of a mental derangement (Article 171 of the Civil Code of the Russian Federation); — effected by minors under fourteen years (Article 172 of the Civil Code of the Russian Federation); — effected by legal entities contrary to purposes of their activity (Article 173 of the Civil Code of the Russian Federation); — effected without required by operation of law prior consent of a third party, a legal entity’s body, a state or municipal body (Article 173.1 of the Civil Code of the Russian Federation); — effected by citizens whose legal capacity has been restricted by court (Article 176 of the Civil Code of the Russian Federation); — effected by citizens who are incapable of understanding the meaning of their actions or of keeping them under control, or under misrepresentation (Articles 177 and 178 of the Civil Code of the Russian Federation); — effected as a result of fraud, coercion, threat or ill-intentioned agreement (Article 179 of the Civil Code of the Russian Federation).

16.7. Enjoyment and Protection of Civil Rights Enjoyment of a civil right is fulfilment by an entitled person of those opportunities that comprise the essence of the right, for satisfying his material and spiritual needs. Pursuant to section 1 Article 9 of the Civil Code of the Russian Federation, citizens and legal entities exercise the civil rights at their sole discretion, i.e. they take independent decisions on enjoyment of their subjective rights and fulfilment of their legal obligations. Alongside with that, the principle of personal discretion in enjoyment of rights by the subjects of legal relations is not absolute, since current Russian legislation established reasonable restrictions thereto. Despite the fact that bona fide feature of the participants and rationality of their actions are assumed, Article 10 of the Civil Code of the Russian Federation prohibits enjoyment of civil rights exclusively with the aim to inflict damage onto another person (nuisance), actions pursuing a wrongful aim, as well as abuse of civil rights. Abuse of civil rights for the purpose of restricting competition and abuse of the dominating position on the market are also prohibited. Should the abuse of rights have led to infringement to another’s right, the latter is entitled to claim for damages caused (section 4 Article 10 of the Civil Code of the Russian Federation).

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Generally, parties to civil relations exercise their rights and perform their obligations independently. However, in some cases, their representatives may act on their behalf. A deal can be effected by a person (the representative) on behalf of another person (the principal) by operation of a power of attorney, law, or act of a competent state or municipal body. The remedies for civil rights are listed in Article 12 of the Civil Code of the Russian Federation and include: — recognition of right; — restoration of state which existed prior to the infringement of right or creation of such threat; — recognition of a disputed deal invalid and application of the respective consequences, application of the consequences of invalidity of a void deal; — recognition as invalid of a board act (in corporate relations); — recognition as invalid an act of a state or municipal body which contradicts the law or other legal acts and violates civil rights and protected legal interests of a person or an entity; — self-defense (the respective means should be reasonable and should not exceed the actions necessary for prevention of violation); — granting damages; — claiming for penalty; — compensation of moral damage; — termination or modification of a legal relation, as well as other means stipulated by law. Thus, the lawmaker provides for two forms of protection or rights: jurisdictional (the aggrieved person seeks protection in a state or other competent body) and non-jurisdictional (the aggrieved person protects their rights on their own — self-defense).

Test questions and tasks 1. What is a civil legal relation and what is its structure? 2. What are the grounds for arising of civil rights and obligations? 3. What is the difference between a citizen’s passive and active capability? 4. What is an individual entrepreneur’s insolvency? 5. What is the difference between patronage and guardianship, trusteeship? 6. Please name the primary features of a legal entity. 7. How is a legal entity liquidated? 8. What is the difference between corporate and unitary legal entities? 9. Can a unitary legal entity be a commercial organisation? 10. Please list the types of deals and name the grounds for their invalidity. 11. What are the remedies of civil rights set forth by current legislation?

Chapter 17. RIGHT OF OWNERSHIP AND OTHER RIGHTS IN REM 17.1. Notion of Right of Ownership and its Holders “Rights in rem” is a complex civil law notion which includes a combination of norms governing the legal relations of persons which possess any material goods. In other words, a right in rem is a legal form of acquiring material goods. Depending on the degree of the authority to possess any material good, rights in rem are divided into: (a) the right of ownership; and (b) other rights in rem. According to section 1 Article 209 of the Civil Code of the Russian Federation, the right of ownership includes the following legal titles: possession, use and disposal. “Possession” denotes the authority to hold the property, “use” denotes the right to enjoy various uses of the property at the discretion of the owner, and “disposal” means the right to determine the fate of the property and alienate it. The owner carries the burden of maintenance, as well as the risk of accidental loss or damage to the property owned by him. Article 212 of the Civil Code of the Russian Federation sets out that the Russian Federation acknowledges private, state, municipal and other forms of ownership. Thus, the holders of ownership right may be classified into: 1. citizens and legal entities, which may own any property apart from some types of property specified by law. The amount and cost of property which citizens and legal entities may own are not limited by law; 2. state. The property owned by the Russian Federation, is federal property, and the property owned by the subjects of the Russian Federation, is the property of the respective subject; 3. municipal entities. Local self-governments exercise the rights of the owner on behalf of their municipal entities. Section 4 Article 212 of the Civil Code of the Russian Federation has established a principle of equal protection of all owners.

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17.2. Acquisition and Cessation of Ownership Ownership may arise in various ways, which are conventionally divided into primary, i.e. not depending on the right of the previous owner to the property, and secondary, in which the ownership arises by will of the previous owner (under a contract or otherwise). Thus, in case of the secondary type, acquiring ownership by one person occurs simultaneously with cessation of this right of another person, i.e. there is a transfer of rights and obligations from the previous owner to the new one. Primary types of acquiring ownership include: — creation of new material goods (which is created by a person for himself or herself, subject to the requirements of laws and other legal acts. We note that, under Article 219 of the Civil Code of the Russian Federation, the right of ownership to immovable property arises at the moment of its registration); — collection of fruits, manufacture of products, generation of revenues, appropriation of items commonly available for collection. The latter denotes cases when it is allowed by law, by permit of the land plot’s owner, or a local custom, to pick berries, catch fish, etc. on a certain territory (Article 221 of the Civil Code of the Russian Federation); — acknowledgement by a court of a right to unauthorised constructions. That said, courts acknowledge such a right not always, but only subject to compliance to a number of requirements: if the person which has performed construction has the rights to the land plot allowing the construction of the facility; if the facility at the date of application to court corresponds to the parameters set out in the territorial planning documentation, etc. (section 3 Article 222 of the Civil Code of the Russian Federation); — processing (recycling). As set out by Article 220 of the Civil Code of the Russian Federation, the right of ownership to a new movable item, which the person has manufactured by processing the materials he does not own, shall be acquired by the owner of the materials. However, if the cost of the processing essentially exceeds the cost of the materials, the right of ownership to the new item shall be acquired by the person who, while acting in good faith, has performed the processing for their own purposes. Mutual obligations of the owner and processor are regulated as follows: the owner of materials who has acquired the right of ownership to the processed item, reimburses the cost of processing; and if the processor acquires the right of ownership, he compensates to the owner of the materials their cost; — appropriation of a derelict (an item without an owner, the owner of which is either unknown or has renounced their ownership). Under section 2 Article 218 of the Civil Code of the Russian Federation secondary types of acquiring ownership include: sale and purchase agreement, barter, gift or other transactions for alienation of property; inheritance (by law

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or by will); reorganisation of a legal entity and transfer of ownership rights to its successor(s). Under the current legislation, the grounds for cessation of the ownership right may be classified into two types: cessation by the owner’s will (voluntarily) and regardless of the owner’s will (compulsory cessation). In the former case the right of ownership terminates: — if the owner alienates their property to other person(s); — if the owner renounces their ownership; — in case of a loss or destruction of the property and in case of forfeiture of ownership rights in other cases specified by law (section 1 Article 235 of the Civil Code of the Russian Federation); — in case of privatisation, i.e. transfer of state or municipal property into the ownership of citizens or legal entities (Article 217 of the Civil Code of the Russian Federation). Under a general rule of section 2 Article 235 of the Civil Code of the Russian Federation, compulsory expropriation of property from the owner is not allowed. However, there are several grounds for cessation of ownership regardless of the owner’s will: — turning of a penalty onto the property by the owner's obligations; — cessation of the right of ownership to the property of the person who may not own it; — alienation of the realty in connection with the expropriation of the land plot due to its undue use or for state or municipal purposes; — redemption of mismanaged cultural valuables or domestic animals (in case of their mishandling); — requisition (under Article 242 of the Civil Code of the Russian Federation, any property may be expropriated in case of natural disasters, accidents and other circumstances of extraordinary nature, under the procedure and on conditions set out by law, subject to the payment of compensation to the owner); — confiscation (Article 243 of the Civil Code of the Russian Federation sets out that property may be gratuitously confiscated from the owner under a court order as a sanction for committing a crime or other legal offence); — expropriation to the budget of the Russian Federation of property, in relation to which there is no proof of acquisition for lawful income under the anti-corruption laws of the Russian Federation or under other circumstances stipulated by law.

17.3. Common Property Common property is the property owned by two or more persons. Under Article 244 of the Civil Code of the Russian Federation common property may be shared (if each of the owners has a defined share) or joint (if the owners’ shares are not defined).

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As a general rule, common ownership to property is shared, except for the cases where the law explicitly stipulates that the joint property arises. That said, by an agreement between the participants in joint ownership (and if no agreement can be reached — by a court decision), shared ownership to the common property may be established. Unless otherwise provided by law or contract, the shares of owners of the shared property are deemed equal (section 1 Article 245 of the Civil Code of the Russian Federation). However, an agreement between all the holders of shared ownership may establish the order of determining and changing their shares, depending on the contribution of each of them to the formation and the increment of the common property. Shared property may be disposed of by the agreement of all its owners. Participants of shared ownership may at their discretion sell, donate, bequeath, pledge their shares or otherwise dispose of them subject to the requirements of Article 250 of the Civil Code of the Russian Federation (in case of non-gratuitous alienation). Under the above mentioned article, in case of a sale of a share in common property to a third party, other participants of shared ownership have a preferential right to purchase a share to be sold at the price of its offering. Participants of joint ownership, unless otherwise stipulated by an agreement between them, use and dispose of their common property together. Disposal of such common property is exercised subject to the consent of the participants of joint ownership, which is presumed if any one of them carries out a transaction for the disposal of such property (section 2 Article 253 of the Civil Code of the Russian Federation). For the division of common property between joint owners, or setting apart of a share of one of them, it is necessary to determine the amount of each of the participants’ shares in the common property. The amounts of such shares may either be determined on the basis of the law or contract (in certain cases) or are deemed equal. The Civil Code of the Russian Federation provides two types of joint property: joint property of spouses and joint property of a peasant (farm) household. Under Article 256 of the Civil Code of the Russian Federation the property acquired by spouses during the period of their marriage shall be deemed their joint property, unless a contract between them stipulates another regime of such property. However, the property owned by each of the spouses before the marriage, and the property received by one of the spouses as a gift or inheritance during the period of the marriage, shall be such spouse’s own property. Besides, an exclusive right to the intellectual property created by one of the spouses, is not considered joint property. However, revenues obtained while using such intellectual property, are deemed joint property of the spouses, unless a contract between them provides otherwise. The property of a peasant (farm) household is also joint property of the household members, unless otherwise provided by law or by a contract among them.

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Russian civil laws provide that a contract as a result of free expression of parties’ will plays a crucial role in practically all cases, when determining the amount of shares in common property.

17.4. Limited Rights in Rem Apart from the right of ownership, Russian civil legislation acknowledges other (limited or secondary) rights in rem. Such rights may arise in respect of property which already has an owner and are, by their nature, more “limited” than the right of ownership since they do not entitle their holder to all of the owner’s rights. Under Article 216 of the Civil Code of the Russian Federation rights in rem of non-owners include: 1. right of inheritable life possession of a land plot. Such a plot may be in state or municipal ownership, and a citizen may obtain such freehold in accordance with the land laws of the Russian Federation. Under Article 266 of the Civil Code of the Russian Federation, a person enjoying such freehold shall have the right of the possession and of the use of the land plot, which shall be passed by the right of succession. However, there are no other options for disposal of such land plot (it may not be sold, gifted, etc.). However, the possessor of such land plot is entitled to construct buildings and other realty on it and obtain the right of ownership to such facilities; 2. right of permanent (perpetual) use of a land plot. Under Article 39.9 of the Land Code of Russian Federation, land plots which are in state or municipal ownership may be granted on the basis of the right of permanent (perpetual) use only to: 1) state or municipal agencies; 2) state or municipal entities (budget or autonomous); 3) budget enterprises; 4) centers of historical heritage of ex-presidents of the Russian Federation. The above entities may not dispose of such land plots; 3. servitudes. Article 274 of the Civil Code of the Russian Federation sets out that an owner of a land plot or other realty may demand from the owner of the adjacent land plot the right of limited use of the adjacent land plot (servitude). A servitude may be established for the right of passage or drive-through through the adjacent land plot, for other actions which do not hinder the use of the land plot under its permitted use category, and for other needs of the owner of realty which cannot be satisfied without establishing a servitude. The owner of the land plot encumbered by servitude retains the rights of possession, use and disposal of this land plot. Moreover, in certain cases he or she may demand payment for establishing servitude. Servitude may be established under an agreement between the person demanding servitude and the owner of the adjacent land plot. Servitude is subject to

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registration under the procedure established for the registration of rights to immovable property. 4. rights of economic management and operative management, described in para. 16.4.2 hereof.

17.5. Ownership Protection The right of ownership is acknowledged by the Constitution of the Russian Federation as well as by the Civil Code of the Russian Federation. The mechanisms of its protection are also clearly established by the legislator. The mechanism of protection of the ownership right (and other rights in rem) includes a complex of forms, means and methods aimed at restitution of the proprietary interests if their holders1. Forms of protection of rights in rem include jurisdictional (protection under a court or administrative procedure) and non-jurisdictional forms. Means and methods of protection of rights in rem may be classified into the following groups: 1. In rem means of protection — measures specifically established by the legislator against various infringements on rights in rem, which are aimed at either restitution of the owner’s possession, use and disposal rights to their property, or eliminate the obstacles or doubts in exercising such rights. These matters are resolved by courts once the respective lawsuit has been filed. In rem lawsuits (claims) include: а) reclamation lawsuit — a claim of the owner demanding reclamation of their property from adverse possession of another person. In other words, a non-possessing owner files a lawsuit against a possessing non-owner. Under Article 302 of the Civil Code of the Russian Federation, if property has been purchased from a person who had no right to alienate it, and the acquirer has been unaware and could not have been aware of it (bona fide acquirer), the owner shall have the right to reclaim this property from the acquirer only if the said property has left the owner’s possession contrary to their will. If the property has been acquired gratuitously, the owner is entitled to demand its reclaim even from a bona fide acquirer; b) elimination lawsuit — is a claim of elimination of violations of owner’s rights not entailing the loss of possession. Such lawsuits are regulated by Article 304 of the Civil Code of the Russian Federation, which sets out that the owner may demand the elimination of any violations of their rights even if such violations do not entail the loss of possession.; c) lawsuit for the recognition of the right of ownership. 2. In personam means of protection. Such means of protection are relevant when the owner and the infringing person participate not only in legal relations in rem, but also in personam (under a contract or otherwise). Such 1

See Ivanchak A.I. Ibid. P. 193.

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means of protection include, e.g. claims to reimburse damages inflicted upon the owner; lawsuits for the reclamation of unjustly acquired or saved property, reclamation of the property provided under a contract. 3. Other means of protection (related to neither in rem nor in personam means of protection — those means which arise out of different civil law institutes). They include, e.g. provisions on of rights of the owner who has been pronounced missing or dead, in case of protecting the interests of parties when declaring a transaction null and void, etc. Other means of protecting rights in rem which belong to this group include: — lawsuits against state or municipal agencies; — compulsory payment of compensation established by law in case of requisition of property in the interests of society under circumstances of extraordinary nature in accordance with a public agency’s decision; — or in case of requisition of a land plot for state or municipal needs, etc.

Test questions and tasks 1. Please differentiate between the notions of “right in rem” and “right of ownership”. 2. What is the difference between the primary and secondary types of acquiring ownership? 3. Please list limited rights in rem and provide their brief description.

Chapter 18. GENERAL PROVISIONS ON OBLIGATIONS AND CONTRACTS 18.1. The Definition of an Obligation and Its Performance An obligation is a type of civil relation by operation of which one party (the debtor) is obliged to perform in favor of another party (the creditor) a certain action: transfer property, perform works, render services, etc. or to abstain from taking a certain action, while the creditor is entitled to claim for discharge of that obligation (section 1 Article 307 of the Civil Code of the Russian Federation). As opposed to legal relations governed by the norms of property law, obligations bind certain persons. Therefore these legal relations are characterised as relative (as opposed to absolute legal relations, where the owner of an item is opposed by an indefinite number of persons; in obligations, the scope of parties is strictly limited). An obligation can arise on the following grounds: — from contracts or unilateral deals (transfer of property, performance of works, rendering of services, etc.); — as a result of infliction of harm; — as a result of unjust enrichment, as well as other grounds set forth by civil legislation. An object of an obligation is a certain benefit for which the subjects enter into a legal relation. Subjects of an obligation are the debtor and the creditor, and their number is unlimited. As a result, obligations with plurality of persons can be in place (with joint debtors and (or) creditors). Obligations may be arranged by other criteria. If an obligation is structured in such a manner that one debtor is present, who has only obligations, and one creditor, who has only rights, such an obligation is unilateral (e.g., a loan agreement, tortious obligations). However, it is more frequent that one encounters mutual, or bilateral obligations, where both parties have rights and obligations (e.g., sale and purchase, lease, etc.). Pursuant to Articles 308.1 and 308.2 of the Civil Code of the Russian Federation, obligations can be divided into alternative and optional. For in-

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stance, an obligation is alternative if a debtor therein is obliged to perform or abstain from performing one of two or several actions which he may choose as prescribed by contract. An obligation is optional if a debtor therein is entitled to substitute the primary performance by an optional (facultative) one as prescribed by the terms of the obligation. If an obligation may be performed in parts it is deemed divisible (delivery of goods by instalments); if it involves an obligation to transfer to a debtor a specified item (specific equipment), such an obligation is deemed indivisible. Obligations may also be divided into primary and subsidiary (accessory), the latter providing proper performance of the former (bank loan being the primary obligation and payment of penalty being the accessory obligation). Russian civil legislation sets forth a number of principles and requirements connected with the performance of obligations. Article 309 of the Civil Code of the Russian Federation sets forth a provision pursuant to which obligations shall be discharged in a proper manner in conformity with the terms of the obligation and requirements of the law, other legal acts, and, in the absence thereof — in conformity with the customs of business turnover or with other normally presented demands. An obligation is deemed performed in a proper manner if it is performed to a proper person, in a timely manner, in a specified place and in a proper way. For instance, pursuant to section 1 Article 312 of the Civil Code of the Russian Federation, a debtor is entitled while discharging an obligation to demand proof of the fact that the discharge is accepted by the creditor himself or by an authorised person, and shall take the risk of the consequences of his failure to present such a demand. A definition of “proper term” follows from Article 314 of the Civil Code of the Russian Federation, which envisages that if an obligation stipulates or allows to stipulate the day of its discharge or the period of time within which it shall be discharged, the obligation shall be subject to discharge on that particular day or, accordingly, at any moment within that period. If an obligation does not stipulate the term of its discharge, it shall be discharged within seven days after the creditor has demanded such discharge. A debtor has the right to discharge an obligation early (in advance) unless otherwise stipulated by law or contract, and if the parties are involved in business activity — only if early discharge is expressly stipulated by the parties. The place of discharge of an obligation is defined by Article 316 of the Civil Code of the Russian Federation. For instance, in an obligation to transfer a land plot, a building, a structure, or other immovable property, the obligation is discharged at the place of location of such property; in an obligation to transfer goods or other property which is to be shipped, the obligation is discharged at the place of transferring the property to the first shipper in order to deliver it to the creditor. Manner of discharging obligations means a way of committing actions directed at satisfying creditor’s claims. Current legislation sets forth a rule

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whereby the debtor bears costs of performing an obligation, unless otherwise prescribed by law or contract (Article 309.2 of the Civil Code of the Russian Federation), and unilateral refusal to discharge an obligation is generally prohibited. A creditor is also entitled not to accept discharge of obligation by parts, unless otherwise stipulated by law, contract, and nature of obligation (Article 311 of the Civil Code of the Russian Federation).

18.2. Providing for the Discharge of Obligations Each obligation is based on the assumption that the debtor will properly perform it. At the same time, certain measures are in place providing for the creditor’s property interests by creating certain guarantees of performance by debtor. Pursuant to Article 329 of the Civil Code of the Russian Federation, the performance of obligations may be provided for by the following: 1. forfeit (fine, penalty) is a sum of money defined by law or contract which the debtor is obliged to pay to the creditor in case of his non-discharge or improper discharge of an obligation, in particular, in case of late discharge (section 1 Article 330 of the Civil Code of the Russian Federation). The nature of this measure lies in the risk of creating undesirable financial consequences for the debtor in case of improper discharge. However, if the debtor is not responsible for improper discharge, the creditor is not entitled to claim payment of forfeit. 2. pledge is a measure by which operation the creditor in an obligation guaranteed by pledge (the pledge holder) has the right of priority before other creditors of the owner of that property (the pledger) in case of the debtor’s non-discharge of that obligation to obtain satisfaction from the cost of the pledged property — section 1. Article 334 of the Civil Code of the Russian Federation. Unless otherwise prescribed by law, pledge between the pledger and the pledge holder arises based on a contract which indicates the subject matter of the pledge, the nature, amount, and term of performance of the obligation guaranteed. Any property may be pledged, including goods and property rights, with the exception of property prohibited from attachment or foreclosure. Section 2 Article 336 of the Civil Code of the Russian Federation sets forth the right of parties to a contract to establish pledge of future property; 3. retention of debtor’s property. Pursuant to section 1 Article 359 of the Civil Code of the Russian Federation, a creditor who bears custody of an item which is subject to transfer to debtor or to the person named by debtor, in the event of debtor’s failure to timely discharge the obligation of payment for that item or of compensation to the creditor of the expenses and other losses he has borne in connection therewith, is entitled to retain such item until the corresponding obligation is discharged. The creditor may retain the

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item regardless of the fact that after it has passed into the creditor’s custody, the rights thereto have been acquired by a third party. Participants of business activities may retain debtor’s items for guaranteeing discharge of those obligations which are not directly connected to paying for that particular item; 4. surety by operation of which the surety is obliged to the creditor of another person to be liable for the latter’s discharge of that obligation in full or in part. Contract of surety may be concluded to provide security for pecuniary and non-pecuniary obligation, as well as for future obligation (section 1 Article 361 of the Civil Code of the Russian Federation). A surety contract shall be concluded in writing. By operation of Article 363 of the Civil Code of the Russian Federation, the surety is liable to the creditor to the same extent as the debtor, including payment of interest, compensation of judicial expenses connected with the collection of debt, and other losses borne by the creditor, which had been caused by the debtor’s non-discharge or improper discharge of the obligation, unless otherwise stipulated by the contract of surety. The surety who has discharged the obligation obtains the creditor’s rights by that obligation, and he obtains the right to claim its discharge from the debtor, including compensation of losses; 5. independent guarantee, by operation of which the guarantor assumes upon the request of another person (the principal) an obligation to pay to the creditor (the beneficiary) a certain amount of money according to the terms of the obligation given by the guarantor, regardless of the validity of the secured obligation (section 1 Article of the Civil Code of the Russian Federation). However, the guarantor refuses to satisfy the creditor’s claim if the latter or the documents attached thereto do not conform to the terms of the independent guarantee or are presented upon the termination of the independent guarantee. Independent guarantees can be issued by banks and other commercial organisations. Pursuant to Article 379 of the Civil Code of the Russian Federation, the principal is obliged to return to the guarantor the money paid under the independent guarantee, unless otherwise prescribed by the agreement between the guarantor and the principal; 6. downpayment, meaning the sum of money issued by one of the contracting parties to offset the payments to the other party due thereunder, as a proof that the contract has been concluded and that its discharge has been secured against (section 1 Article 380 of the Civil Code of the Russian Federation). A downpayment agreement shall be effected in writing. Pursuant to Article 381 of the Civil Code of the Russian Federation, if the responsibility for non-performance of the contract lies with the party which has provided the downpayment it shall remain with the other party. If the responsibility for non-performance of the contract lies with the party which has received the downpayment, it shall be obliged to pay to the other party the double amount of the downpayment.

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The downpayment shall be distinguished from the advance. The latter carries no security, i.e. if the obligation has not been performed or has not arisen, while advance has been transferred, it shall be returned; 7. security deposit, meaning the sum of money transferred to one party by another and securing an obligation to pay damages or penalty for breaching the contract. If the circumstances stipulated by contract arise, the sum of the security deposit is offset against the respective obligation (section 1 Article 381.1). Other measures of securing performance of obligation may be set forth by parties or by law.

18.3. Liability for Violation of Obligations Civil liability is debtor’s obligation to compensate the creditor for the losses caused by non-discharge or improper discharge of the obligations and (or) to suffer respective negative consequences. The grounds for civil liability lie within the legal corpus of the civil violation (for greater detail on legal offence and legal liability, see Chapter 9 of the textbook). However, civil legal liability has specific features set forth by law. Pursuant to Article 15 of the Civil Code of the Russian Federation, a person whose right has been violated shall be entitled to demand full recovery of losses, unless the recovery of losses in a smaller amount has been stipulated by law or agreement. Full recovery of losses means that the creditor holds a position as if the obligation were properly discharged. Article 401 of the Civil Code of the Russian Federation sets forth grounds of liability for violation of obligations. Namely, a person who has not discharged the obligation or who has discharged it in an improper way, shall bear responsibility therefor, if it has happened through his fault (willful misconduct or negligence), with the exception of cases where other grounds of such liability has been stipulated by law or contract. Generally, a person is recognised as not guilty if, taking into account the extent of care and caution which has been expected from him under the terms of the obligation, he has taken all the necessary measures for properly discharging the obligation. In civil law, the benefit of the doubt principle is not applicable — on the contrary, guilt is assumed, i.e. the absence of guilt shall be shown by the person who is in breach of an obligation. Unless otherwise prescribed by law or contract, a person who has not discharged or has improperly discharged an obligation while performing business activity, shall bear liability, unless he proves that the proper discharge has been impossible due to force majeure, i.e. extraordinary circumstances which were impossible to avert under given conditions. Such circumstances do not include, in particular, violations of obligations by the debtor’s counterparties, the lack

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on the market of necessary commodities, the lack of the necessary monetary means (section 3 Article 401 of the Civil Code of the Russian Federation). In other words, the law sets forth liability regardless of guilt. Other cases of such liability include the debtor’s liability for his employees’ actions (Article 402 of the Civil Code of the Russian Federation), the debtor’s liability for the actions of third persons (Article 403 of the Civil Code of the Russian Federation) and other similar cases. In certain cases, civil liability may arise regardless of infliction of harm (for instance, the creditor is not obliged to show losses when claiming penalty). In other cases, the Civil Code of the Russian Federation sets forth the possibility of reducing the amount of debtor’s liability. Pursuant to section 1 Article 404 of the Civil Code of the Russian Federation, if the non-discharge or the improper discharge of obligation occurred through the fault of both parties, the court shall have the right to reduce the scope of the debtor’s responsibility accordingly. Civil legal liability may be classified by various criteria. Depending on the grounds of arising it can be contractual and non-contractual. Depending on the participants, liability may be: a) shared, where each debtor is liable within the amount of his share; b) joint and several, where each of the debtors individually and all of the debtors collectively are liable until the obligation is fully discharged; c) subsidiary (ancillary) liability, where the creditor, if an obligation has not been discharged by the principal debtor, has the right to address his claim to the ancillary debtor (Article 399 of the Civil Code of the Russian Federation). By its nature, civil legal liability may be non-monetary and monetary (Article 1082 of the Civil Code of the Russian Federation). Specific performance means providing an item of identical type and quality, repair of damaged item, etc.

18.4. Termination of Obligations Legal relations connected with obligations cannot be eternal. Termination of an obligation is the termination of a legal bond, of certain legal relations between the parties. An obligation may be terminated on the grounds set forth by the Civil Code of the Russian Federation (common grounds), as well as on the grounds set forth by the parties’ agreement (specific grounds). Pursuant to the general rule set forth in Article 408 of the Civil Code of the Russian Federation, the proper discharge terminates the obligation. The creditor, when accepting discharge, shall be obliged, upon debtor’s claim, to give him a receipt for accepting the discharge in full or in the corresponding part thereof. Besides, the Civil Code of the Russian Federation sets forth the following grounds of termination of an obligation (Articles 409-419 of the Civil Code of the Russian Federation):

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1. indemnity — by an agreement between the parties, an obligation may be terminated by way of paying an indemnity instead of being discharged (payment of money, transfer of property). The amount of money or property shall be established by the parties; 2. offset of obligations — where an obligation is terminated in full or in part by offsetting mutual claims. In this case, mutual obligations are in question (where each party is both the creditor and the debtor); 3. novation — the parties enter into a novation agreement (on replacing the primary obligation with another obligation); 4. forgiveness of debt takes place if the creditor releases the debtor from performance of his obligations, if such dismissal does not violate the rights of other persons as to the creditors property; 5. frustration — where circumstances arise after the coming about of the obligation, which make its performance impossible. Such circumstances should not arise through the fault of parties; 6. issuance of an act by a state or municipal body. Persons who have suffered losses are entitled to claim recovery. However, section 2 Article 417 of the Civil Code of the Russian Federation indicates that an obligation is not deemed terminated if the issuance of an act by a state or municipal body which has led to frustration is caused by wrongful conduct of the debtor; 7. death of creditor or debtor — if the performance of an obligation is directly connected to the personality of the deceased; 8. liquidation of a legal entity (except for cases where law or other legal acts impose the discharge of the obligation of the liquidated legal entity upon another person).

18.5. Definition and Terms of Contract A civil contract is a legal form of economic relations of exchange which have arisen in the society, especially in the market conditions. Pursuant to section 1 Article 402 of the Civil Code of the Russian Federation, a contract is an agreement between two or several persons on the institution, modification, or termination of civil rights and duties. Therefore, a contract is also a form of self-regulation of market relations, which, when instituted in a proper manner, legally binds its parties. A contract is a multilateral deal which is the most common grounds for arising of legal relations and, therefore, obligations. A contract may be characterised with the following primary features: — coordinated actions of its parties, which express their mutual will; — direction of these actions (will) at institution, modification, or termination of civil rights and duties of the parties. The principle of freedom of the contract follows from the abovesaid, meaning that persons and legal entities are free to enter into contracts (section 1 Article 421 of the Civil Code of the Russian Federation). Compulsion to

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conclude contract is prohibited, with the exception of cases where the duty to conclude the contract is stipulated by the Civil Code of the Russian Federation, other law or a voluntarily assumed obligation. The freedom of contract is also epitomised by the fact that the parties may enter into contract which is or is not stipulated by law or other legal acts, as well as into contract containing elements of various contracts stipulated by law or other legal acts (mixed contract). Pursuant to section 4 Article 421, contractual terms are defined by the parties at their discretion. Also, if a contract provision has been stipulated by the norm applied so far as it has not been otherwise stipulated by the agreement between the parties (the dispositive norm), the parties may by their own agreement exclude its application or may introduce a provision which is different from that which has been stipulated by the dispositive norm. If a contract provision has not been defined either by the parties or by the dispositive norm, the respective terms shall be defined by the customs of the business turnover applicable to the relationships between the parties. However, a contract shall be in conformity with the binding rules set forth by law or other legal acts (imperative norms) which operate at the moment of its conclusion (section 1 Article 422 of the Civil Code of the Russian Federation). Terms of contract are a sum total of conditions of the contract set forth by the parties. Essential terms of contract are the necessary and sufficient terms for the arising of contractual obligation. Should the parties disagree on at least one of these terms, the contract is deemed as not concluded and non-existent. Pursuant to section 1 Article 432 of the Civil Code of the Russian Federation, the following terms are deemed essential: — on the subject matter of the contract (name and quantity of goods to be shipped); — conditions which are named by law or other legal acts as essential or necessary for the contracts of such kind (price in the retail sale of goods); — other terms on which, by the statement of one of the parties, an accord shall be reached. The essential terms of contract may be prescribed by law or initiated by one of the parties. The first kind are the conditions which are designated by the Civil Code of the Russian Federation or by other legal act as necessary for conclusion of a contract of such kind. They shall be agreed on by the parties — otherwise the contract shall be deemed as non-concluded (e.g., conditions on the subject matter of the contract). Initiated conditions are those which it is not demanded by law to include into the contract but which are included at the parties' will (specifying time periods or quality of work performed). Upon including these terms into the contract, these become essential.

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Academic writers also highlight the common (regular) terms of contract. They include the terms which are set forth by dispositive norms and, despite their lack in the body of the contract (including the cases where the parties did not deem it rational to modify them), they do govern the terms of contractual obligations. For instance, if a storage agreement does not define the time period of storage, the keeper, pursuant to Article 889 of the Civil Code of the Russian Federation shall store the goods until called for.

18.6. Types of Contracts There is a great deal of types of contract which are distinguished based on various criteria. Pursuant to Article 423 of the Civil Code of the Russian Federation, a contract under which a party shall receive a pay or other consideration for the discharge of her duties, shall be non-gratuitous. On the contrary, a contract is deemed gratuitous where a party assumes an obligation to provide something to the other party without receiving a pay or other consideration. In the civil turnover, non-gratuitous nature of contract is assumed, i.e. a contract is deemed non-gratuitous unless otherwise prescribed by law or contract itself. Contracts may be typical, where their terms coincide with those prescribed by law, and mixed, which combine the elements of various types of contracts. Depending on the distribution of rights and obligations between the parties, contracts may be: — unilateral — one party has solely rights and the other has solely obligations (loan agreement); — bilateral (mutually binding) — each of the parties has rights and obligations (sale and purchase). Based on legal effect, contracts may be primary and preliminary. Pursuant to section 1 Article 429 of the Civil Code of the Russian Federation, under a preliminary contract the parties shall assume an obligation to conclude in the future a contract on the transfer of property, on the performance of works or on rendering services (the primary contract) on the terms stipulated by the preliminary contract. The preliminary contract shall indicate the time period within which the parties are obliged to enter into the primary contract. If the time period is not defined, the parties shall enter into the primary contract within one year upon concluding the preliminary contract. If a party who has concluded the preliminary contract is avoiding the conclusion of the primary contract, it may be coerced to enter into the primary contract by court. The Civil Code of the Russian Federation in Article 426 describes the public contract which is deemed a contract concluded by a commercial organisation and establishing its duties by the sale of goods, performance of works, rendering services which such organisation shall effect in conformity with the nature of

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its activity with respect to anyone who turns to it (retail trade, passenger traffic in the public transport vehicles, communications services, supply of electric energy, medical services, hotel accommodation, etc.). A person who carries out business activities shall have no right to show preference to some persons as opposed to others as regards the conclusion of a public contract and may not refuse to enter into a public contract. Depending on the manner of coordinating the terms of contract, contracts may be mutually agreed upon and adhesion contracts. Pursuant to Article 428 of the Civil Code of the Russian Federation, an adhesion contract is a contract whose terms have been defined by one of the parties in official form and can be accepted by the other party solely by way of adhesion to the offered contract as a whole. However, the party which has joined the contract shall have the right to demand that the contract be dissolved or amended, if such adhesion contract, while being in conformity with law or other legal acts, deprives the party of the rights which are usually granted by the contracts of such kind, if it excludes or limits the liability of the other party for the violation of the obligations or contains other terms which are clearly onerous for the party. Depending on who is the beneficiary under the contract, these can be in favour of the parties of in favour of third persons. A contract in favour of third person is a contract under which the debtor shall discharge the obligation to a third person rather than the creditor who has the right to claim discharge from the debtor (section 1 Article 430 of the Civil Code of the Russian Federation). Unless otherwise prescribed by law or contract, from the moment of the third person expressing to the debtor his intention to avail himself of his right by the contract, the parties shall have no right to terminate or amend the contract without the consent of the third party. Depending on the purpose, contracts may be connected with the transfer of property into ownership or usage and connected with the performance of works or rendering of services.

18.7. Concluding a Contract Concluding a contract means reaching accord on the essential terms as prescribed by law. Pursuant to section 2 Article 432 of the Civil Code of the Russian Federation, a contract is concluded by manner of forwarding the offer (proposal to enter into a contract) by one of the parties and of its acceptance by the other party. The offer is a proposal addressed to one or several persons which is sufficiently comprehensive and expresses the intention of the person who has made the proposal, to regard himself as having concluded the contract with the addressee who will accept the proposal. The offer shall contain the es-

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sential terms of the contract (section 1 Article 435 of the Civil Code of the Russian Federation). After the addressee has received the offer, it may not be revoked, unless otherwise specified by law or the offer itself. Advertisement and other proposals addressed to an indefinite circle of persons shall be regarded as an invitation to make an offer and not as an offer itself. However, if such proposal contains all the essential terms of contract and directly expresses the intent to enter into contract with any responding person, such proposal is deemed as a public offer. The acceptance is the response of the person, to whom the offer has been addressed, about the offer being accepted. Based on Article 438 of the Civil Code of the Russian Federation, acceptance shall be full, unconditional, and sent to the person who sent the offer within set time period. Generally, silence is not deemed acceptance, as well as consent to enter into contract on different terms. Such consent, however, may be deemed a new offer. Article 434.1 of the Civil Code of the Russian Federation sets forth provisions whereby persons and legal entities are free to conduct negotiations on entering into contract, bear expenses connected with such negotiations, and are not liable for not reaching an agreement. However, when entering into negotiations on conclusion of contract, during such negotiations and upon their completion the parties are obliged to act bona fide, i.e. they shall not conduct such negotiations scienter lacking the intent to agree. The following circumstances operate as the moment of conclusion of a contract: — receiving of acceptance by the person who sent the offer; — transfer of property, if it is by law required for conclusion of contract; — the moment of state registration, if it is prescribed for that type of contract. If no place of its conclusion has been indicated in the contract, it shall be recognised as concluded at the place of residence of the citizen or at the place of location of the legal entity who has forwarded the offer (Article 444 of the Civil Code of the Russian Federation). Contract may be concluded in any form prescribed for deals (for greater details, see para 16.6). Contract may also be concluded by way of organising a tender, unless otherwise set forth by law or nature of contract. Tender (including electronically) may be conducted in the form of an auction or contest. The winner of the bidding at an auction shall be recognised as the person who has offered the best price, and at the contest — the person who, as it has been concluded by the commission appointed in advance by the organiser, has offered the best terms (section 4 Article 447 of the Civil Code of the Russian Federation). The right to define the form of tender is vested with the owner of the item for sale or with the owner of the interest.

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18.8. Modification and Rescission of Contract Generally, as prescribed by Article 450 of the Civil Code of the Russian Federation, modification and rescission of contract is only allowed by parties' agreement, unless otherwise prescribed by the contract itself or by law. Multilateral contracts, parties whereto exercise business activities, may envisage the possibility of their modification or rescission by consent of all or majority of the parties. A contract may be modified or rescinded by a party's claim only by court decision in the following cases: 1) in case of essential violation of the contract by the other party (where one party's action inflicts such damage to the other party that the latter is deprived of what it could have counted upon when concluding the contract); 2) in other cases expressly stipulated by law or contract. However, the principle of freedom of contract suggests that the contract itself may grant the right to unilateral modification of contract to one party. The Civil Code of the Russian Federation sets forth the possibility of modification or rescission of contract due to essential change of circumstances. The change of circumstances is deemed essential if it is to such an extent that in case the parties could have anticipated it, they would not have concluded the contract or would have concluded it on essentially different terms (section 1 Article 451 of the Civil Code of the Russian Federation). If the parties could not reach accord on modifying the contractual terms according to the changed circumstances or on rescinding the contract, the latter may be rescinded by court at the interested party's claim where: 1) at the moment of concluding the contract, the parties have proceeded from the fact that no such change of circumstances would take place; 2) the change of circumstances has been called forth by the causes which the interested party could not overcome; 3) the performance of the contract without amending its provisions would inflict such damage to the party that it is deprived of what it could have counted upon at the conclusion of the contract; 4) neither the customs of the business turnover nor the nature of the contract suggest that the risk of change of circumstances is borne by the interested party. Generally, the agreement on the amendment or on the rescission of the contract shall be executed in the same form as the contract itself (Article 452 of the Civil Code of the Russian Federation). The claim for the amendment or for the rescission of the contract may be filed by a party with the court after it has received the refusal from the other party or if it has received no response within a 30-day term. In case of amendment or rescission of a contract, the parties' obligations are deemed amended or terminated from the moment of the parties' concluding the respective agreement or from the moment of coming into force of the respective court decision.

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Pursuant to section 4 Article 453 of the Civil Code of the Russian Federation, the parties have no right to claim for the return of what has been discharged up to the moment of the amendment or rescission of the contract, unless otherwise stipulated by law or contract.

Test questions and tasks 1. Please list the primary types of contracts. 2. What is proper discharge of obligations? 3. What are the ways of securing the performance of obligations set forth in the Civil Code of the Russian Federation? 4. How do you understand the principle of presumption of guilt in civil law? 5. What are the essential terms of contract? 6. Please list the primary kinds of contracts. 7. What is the procedure of conclusion of contracts? 8. What are the ways of rescinding a contract, as per Russian civil legislation?

Chapter 19. INHERITANCE LAW 19.1. General Provisions on Inheritance Inheritance law is a sub-branch of civil law and a sum total of norms governing the process of succession of a deceased person’s rights and duties to another person. Pursuant to section 1 Article 1110 of the Civil Code of the Russian Federation, in case of succession the deceased person’s estate (assets) shall pass to other persons by universal succession, i.e. in an unchanged, single whole at the same time. The right of ownership to the estate passes to the persons indicated in the will, and in the absence thereof — by operation of law. The estate includes chattels, property rights, and duties belonging to the testator. The estate does not include: — rights and obligations closely connected to the deceased’s personality (right to alimony, right to recovery of damage inflicted upon life or health); — personal incorporeal rights and other intangible wealth; — rights and obligations which by operation of law may not be inherited (Article 1112 of the Civil Code of the Russian Federation). An estate shall be opened on the death of a citizen, and the announcement of a citizen’s death by court shall cause the same legal consequences as the death of a citizen. The subjects of inheritance relations are the heir and the testator. While the testator may only be represented by a person, the heirs can be persons and legal entities: persons who are alive at the moment of opening of estate or who have been conceived within the lifetime of the testator and are born alive after the opening of the estate, all legal entities which exist at the moment of opening of the estate, the Russian Federation, its subjects, municipal entities, foreign states, international organisations, etc. Russian civil law distinguishes between inheritance by will and by operation of law. However, Russian civil legislation does not entitle the following to inherit either by operation of law or by will: citizens who by their deliberate illegal

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actions directed against the deceased or any of the deceased’s heirs or against the exercise of the deceased’s last intentions expressed in a will assisted or attempted to assist to increase the share of the estate which they or other persons were entitled to. These persons, pursuant to Article 1117 of the Civil Code of the Russian Federation, are deemed unworthy heirs, and their actions shall be shown in court. However, the citizens to whom the deceased has bequeathed property after they lost their right to inherit, shall still be entitled to inherit that property. Section 1 Article 1117 of the Civil Code of the Russian Federation sets forth that parents shall not be entitled to inherit from their children in respect to whom the former had been deprived of their parental rights by court and have not been restored as of the date of opening of the inheritance. Court may also (by claim of an interested person) refuse entitlement to all citizens who deliberately and persistently evaded from performing their lawful rights and duties of upkeep of the deceased.

19.2. Inheritance by Will Under Article 1118 of the Civil Code of the Russian Federation, a will is a disposition of a citizen for the case of his death of his property, which is produced personally by a citizen in full capacity. The production of will through a representative is prohibited. A will may only be created by one citizen, “joint” will is prohibited. Therefore, a will is a unilateral deal which creates rights and obligations after opening of the estate. Article 1119 of the Civil Code of the Russian Federation sets forth the principle of the freedom of the will, according to which the testator is entitled to: — bequeath the property to any persons; — define in any way the shares of the heirs in the estate; — deprive of the inheritance several or all heirs at law without explaining the reasons for such deprivation, and in the cases stipulated by law, to include other orders into the will; — cancel or amend the will. The testator is not obliged to inform anybody of the content, creation, alteration or revocation of the will. The testator is also entitled to: — dispose of future property; — dispose of property or a portion thereof; — produce one or several wills; — bequeath the property to one or several persons who may or may not be his legal heirs; — indicate another heir in the will (sub-appointment) for the case if the appointed heir dies before opening the state or fails to accept the estate or refuses to accept it or is not entitled to inherit or is recognised unworthy heir.

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However, the freedom of will is restricted by rules of compulsory share in the estate. Pursuant to Article 1149 of the Civil Code of the Russian Federation, the minor or disabled children of the testator, his disabled spouse and parents and disabled dependants of the testator inherit irrespective of the content of the will at least half of the share which each of them is entitled to in case of inheritance by operation of law (the compulsory share). Article 1123 of the Civil Code of the Russian Federation sets forth the principle of secrecy of will, whereby a notary public, another person attesting to a will or having access to the unified database of the notary, as well as the citizen who signs the will on the testator’s behalf shall not disclose information concerning the content of the will, its creation, alteration or revocation before opening of the estate. Generally, a will shall be created in writing and certified by a notary public. Certification of a will by other persons is admissible as expressly prescribed by the Civil Code of the Russian Federation (the list of such persons is exhaustive and includes, for instance, chief physician, chief of a hospital, captain of a maritime vessel under the State Flag of the Russian Federation, chiefs of expeditions, etc.). Non-compliance with these rules results in the invalidity of a will. The creation of a will in a simple written form is only admissible by way of exception, where a citizen is in a situation that obviously threatens his life and is by virtue of prevailing extraordinary circumstances deprived of an opportunity to create a will in proper form. In that case, the citizen’s last wishes set out in simple written form shall be deemed his will, if the testator has written a document in his own hand in the presence of two witnesses, the content whereof evidences that it is a will (Article 1129 of the Civil Code of the Russian Federation). Pursuant to Article 1125 of the Civil Code of the Russian Federation, a will attested by a notary public shall be signed by the testator or written by a notary public on the testator’s words. A will written by a notary public on the testator’s words shall be read in full by the testator in the presence of the notary public before it is signed. If the testator cannot read the will by himself, the notary public shall read out the text for him, and then the testator shall sign the will in his own hand. If a testator, due to a physical disability, grave illness or illiteracy, cannot sign a will in his own hand, it can be signed on his behalf by another citizen in the notary public’s presence. A witness can be present when a will is drawn up and attested by a notary public. The witness and the citizen who signs a will on the testator’s behalf shall be warned by the notary about the obligation to observe the secret of the will. However, Article 1126 of the Civil Code of the Russian Federation sets forth the testator’s right to a closed will, where no other person, including the notary public, shall have an opportunity to familiarize themselves with

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the content thereof. A closed will shall be hand-written and signed by the testator, passed in a sealed envelope to a notary public in the presence of two witnesses who shall put their signatures on the envelope. The envelope signed by the witnesses shall be put into another envelope where the notary public indicates the testator’s data. The Civil Code of the Russian Federation sets forth that a will may contain a testamentary refusal or a testamentary burden. Pursuant to Article 1137 of the Civil Code of the Russian Federation, a testamentary refusal is the testator’s right to vest in one or several heirs the execution of a duty of property nature for the benefit of one or several persons (beneficiaries) who acquire a right to claim execution of a duty. For instance, a testator may vest in an heir who has acquired a dwelling house, apartment, or other premises, an obligation to provide to another person for a term of his life or for other time period the right to use the premises or a part thereof. Testamentary burden is a testator’s right to burden his heirs by law or by will to take some action aimed at some socially beneficial purpose. The testator is also entitled to burden one or several heirs with an obligation to upkeep and take care of his pets, and the interested persons as well as any of the heirs are entitled to claim performance of that duty in court.

19.3. Inheritance by Operation of Law Inheritance by operation of law takes place, where: — there is no will or a will is deemed invalid; — only a part of the estate is covered by the will, and the rest of the estate is not disposed of by the testator; — the heir died prior to the opening of the estate or refuses to accept it. Heirs by law shall be called upon to inherit in compliance with the priority ranking, and the heirs of each next category shall inherit if there are no heirs of the preceding categories. Heirs of one category shall inherit in equal shares, except for heirs who inherit by right of representation (pursuant to Article 1146 of the Civil Code of the Russian Federation, the share of a legal heir who has died before the opening of the estate or simultaneously with the testator shall pass by right of representation to his relevant descendants). Legal heirs of the first category are the children, spouse, and parents of the testator (Article 1142 of the Civil Code of the Russian Federation). If there are no legal heirs of the first category, the heirs of the second category are the full and half brothers and sisters of the testator, his grandmother and grandfather both on the side of the father and on the side of the mother (Article 1143 of the Civil Code of the Russian Federation). If there are no heirs of the first and second category, the legal heirs of the third category are the full and half brothers and sisters of the parents of the testator (uncles and aunts of the testator) (Article 1144 of the Civil Code of the Russian Federation), and if there are no heirs of the first, second, and third

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categories, the right to inherit by law shall be acquired by the testator’s relatives of the third, fourth, and fifth degree of kinship who do not qualify as heirs of the preceding categories (Article 1145 of the Civil Code of the Russian Federation). The degree of kinship shall be determined by the number of births that separate the relatives from one another, and the birth of the testator does not count. The legal heirs also include citizens who do not qualify as the above, but who had been disabled as of the date of opening of the inheritance and had lived for at least one year with the testator and were dependent on him. If there are no legal heirs and heirs by will or if neither of the heirs has a right to inherit or all heirs have been deprived of their right to inherit or neither of the heirs has accepted the estate or all of the heirs have refused their inheritance, the deceased’s estate is deemed escheat (Article 1151 of the Civil Code of the Russian Federation) and passes into the ownership of the municipal entity or the subject of the Russian Federation (depending on the type of property).

19.4. Acquisition of Inheritance To acquire inheritance, an heir shall accept it, i.e. express his intent to become the owner of the estate. Pursuant to Article 1153 of the Civil Code of the Russian Federation, an inheritance is accepted by way of the heir’s filing an inheritance acceptance application or an application for a certificate of the right to inheritance with the notary public or other official at the place of opening of the inheritance. The fact that the heir accepted the inheritance may also be confirmed with the following: — the heir has commenced possession or administration of assets of the estate; — the heir has taken measures for preserving assets of the estate; — the heir has incurred expenses on his account towards maintenance of the estate; — the heir has paid the testator’s debts or received from third persons amounts of money payable to the testator (section 2 Article 1153 of the Civil Code of the Russian Federation). Generally, estate may be accepted within six months after the date of its opening. However, if there is a legitimate reason (the heir did not know and was not supposed to know of the opening of the estate), the court may reinstate the term provided that the heir filed an application to the court within six months after such reasons ceased to exist. The estate may be accepted upon expiry of the said term without filing an application with the court if all other heirs who had accepted the estate consent thereto. An heir is entitled to disclaim the estate for the benefit of other persons (who qualify as heirs by will or by law of any category and who have not been

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deprived of the estate) or without indicating a person for whose benefit he rejects the estate. A certificate of right to inheritance is issued to heirs at any time upon the expiry of six months after the date of opening of the inheritance at the place of its opening. However, such certificate may be issued before expiry of six months after the opening of the inheritance if there is reliable information evidencing that there are no other heirs entitled to the estate, apart from the persons who have applied for the certificate (section 2 Article 1163 of the Civil Code of the Russian Federation). The heirs who have accepted the estate are jointly and severally liable by the testator’s debts within the monetary value of the estate which they acquired.

Test questions and tasks 1. Who can qualify as an heir? 2. What is the difference between inheritance by law and compulsory share in the estate? 3. Please name the general rules of drawing up a will. 4. What is the time period within which a citizen may accept the estate?

PA RT 4 . BASICS OF LABOUR LAW Chapter 20. LABOUR LAW AND ITS ACTORS 20.1. Definition, Subject Matter, and Method of Labour Law Labour law is a branch of Russian law which is a sum total of norms governing labour relations arising out of hired labour and established through a labour contract, as well as other relations directly connected with labour. Pursuant to Article 1 of the Labour Code of the Russian Federation, the primary goals of labour legislation are as follows: — the institution of state guarantees of labour rights and liberties of citizens; — the creation of favorable labour conditions; — the protection of rights and interests of employees and employers. The tasks of labour law as a branch of law include: — the creation of the necessary legal conditions to achieve the optimal coordination of interests of the parties of labour relations and interests of the state; — the legal governance of legal relations and other relations directly connected to them. The relations comprising the subject matter of labour law include the relations in: — organisation of labour and labour management; — employment; — professional training, retraining, and professional development of employees at the given employer; — social partnership in the labour sphere; — participation of employees and trade unions in the establishment of working conditions and application of labour legislation; — material liability of employers and employees in the labour sphere; — state and trade union control over observation of the labour legislation; — settlement of labour disputes; — mandatory social insurance in the cases envisaged by federal laws.

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Thus, the subject matter of labour law includes the sum total of social relations arising in the course of application of labour. At the same time, some labour relations are governed by civil law (e.g., labour relations connected with authorship contracts, work contracts, freight contracts, etc.), as well as by administrative law (e.g., labour of certain categories of citizens — military men, employees of the Ministry of Internal Affairs of the Russian Federation, etc.). The method of labour law is the sum total of legal measures, ways, and practices which facilitate the governance of labour relations and those directly connected to them. The method of labour law has common and branch-specific features. As well as many other branches of Russian law, the method of labour law is a certain combination of permissions, prescriptions, and prohibitions — i.e., of imperative and dispositive principles. It can be characterised with a mix of public law (established and controlled by the state) and private law (based on the equality of parties and their free will) regulation of labour relations. However, the method of labour law possesses its specific features based on the following: 1. balance of federal, regional, municipal, and local governance of labour relations. The authorities on all of the levels indicated, as well as the employer himself, adopt legal acts aimed at the governance of labour relations, which cannot deteriorate the employee’s position as compared to acts of higher authority; 2. application of normative (federal, regional, municipal, and local) and contractual governance. The contractual manner of regulation of labour relations lies in the conclusion of individual labour contract with an employee, as well as in the conclusion of collective labour contract between the representatives of employees and those of employers; 3. possibility of governance of legal relations through the employees’ representatives and organisation (professional unions and other entitled entities). For instance, pursuant to Article 372 of the Labour Code of the Russian Federation, the employers (in cases expressly stipulated by law or by collective agreement) direct the draft local normative acts to the professional unions for approval); 4. possibility of recovery of the infringed right with the assistance of special bodies which settle labour disputes. In particular, there is a certain procedure of resolving individual labour disputes — addressing the commission on labour disputes. The system of labour law as a branch of law represents the division of labour law norms into general and special. The general part of labour law contains norms which anchor the aims, principles, and tasks of the legal governance of the labour sphere, rights and obligations of employees and employers, mechanisms of social partnership in the labour sphere, etc. The special part of labour law contains norms which govern the conclusion and termination of a labour contract, working time and rest time, remuneration, labour discipline, employees’ material liability, etc.

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20.2. Principles of Labour Law Principles of labour law are the primary fundamentals and ideas reflecting the specifics of legal governance of the labour sphere. These fundamentals are based on the commonly recognised principles and norms of international law, the Constitution of the Russian Federation, and current normative acts. They reflect the political and economic level of the society’s development and operate as landmarks for labour law evolution. Pursuant to Article 2 of the Labour Code of the Russian Federation, these principles include: — freedom of work, including the right to work which is chosen freely by everybody, or to which everybody agrees freely; — right to be master of one’s own abilities to work, to choose a profession and occupation; — prohibition of forced labour and discrimination in the labour sphere; — protection against unemployment and assistance in employment; — ensuring the rights of each employee to fair working conditions, including working conditions meeting the safety and hygiene requirements; — right to leisure, including restriction of working time, providing daily rest, days-off, holidays, and paid annual leave; — equality of rights and opportunities of employees; — ensuring the right of each employee to the timely payment in full of fair earnings providing for a humane existence of the employee himself and his family at no less than the minimum amount of labour remuneration fixed by federal law; — ensuring equality of opportunities of employees without any discrimination in promotion taking into account labour productivity, qualification, and tenure in the occupation, as well as in professional training, retraining, and professional development; — ensuring the right of employees and employers to unite to protect their rights and interests, including the right of employees to create trade unions and to join them, and the right of employers to create their unions and to join them; — ensuring the right of employees to take part in the management of the organisation in the form envisaged by legislation; — combination of state and contractual regulation of labour relations and other relations directly associated with them; — social partnership, including the right of employees, employers, and their associations in contractual regulation of labour relations and other relations directly associated with them; — obligatory compensation for the harm incurred by the employee due to his execution of labour duties; — institution of state guarantees to ensure the rights of employees and employers, implementation of state enforcement of and control over their observation;

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— ensuring the right of everyone to protection of their labour rights and liberties by the state, including judicial protection; — ensuring the right to resolution of individual and collective labour disputes, including the right to strike according to the procedure specified by the Labour Code of the Russian Federation and other federal laws; — obligation of the parties to a labour contract to observe the terms of the concluded contract, including the right of the employer to demand that the employees execute their labour duties and treat carefully the property of the employer and the right of the employees to demand that the employer observe their duties with respect to employees, labour legislation, and other acts containing labour legislation norms; — ensuring the rights of the representatives of trade unions to implement trade union control over observation of labour legislation and other acts containing labour legislation norms; — ensuring the right of employees to protect their dignity in the course of work; — ensuring the right for obligatory social insurance of employees. The fundamentals of governance of labour relations also include the prohibition of discrimination in the labour sphere, providing everyone’s right to equal opportunities to implement their labour rights. For instance, Article 3 of the Labour Code of the Russian Federation sets forth that nobody may be subject to restrictions in labour rights and liberties or gain any advantages depending on sex, race, skin color, nationality, language, origin, property, family, social status and occupational position, and other circumstances not pertaining to business qualities of the employee. The primary prohibition which corresponds to the principle of freedom of labour is the prohibition of forced labour (Article 4 of Labour Code of the Russian Federation). Forced labour is the carrying out of work under the threat of punishment (violence), including: — to maintain labour discipline; — as retribution for participation in a strike or as other punishment; — as a means of discrimination based on racial, social, national, or religious affiliation. Pursuant to Article 4 of the Labour Code of the Russian Federation, forced work also includes work which an employee is forced to carry out under a threat of punishment (duress), while, in accordance with legislation, he is entitled to refuse to perform such work. The above and other principles of Russian labour law are closely connected to or directly follow from the fundamental international documents, including: 1. The Universal Declaration of Human Rights (adopted by the General Assembly of the United Nations in 1948); 2. The International Covenant on Economic, Social, and Cultural Rights (adopted by the General Assembly of the United Nations in 1966); 3. The Convention on the Elimination of All Forms of Discrimination against Women of 1979;

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4. The International labour Organisation Declaration on Fundamental Principles and Rights at Work of 1998.

20.3. Labour Relations Pursuant to Article 15 of the Labour Code of the Russian Federation, labour relations means relations based on an agreement between an employee and an employer on the performance in person by the employee for payment of a labour function, on the employee’s compliance with the in-house employee rules, provided that the employer ensures the working conditions envisaged by the labour legislation, collective agreement, labour agreement, and other documents. Basically, this Article describes labour legal relations, i.e. the strictly labour and the relations associated with them, which are governed by labour law norms. The specific feature of governance of these legal relations lies in the fact that the lawmaker does not provide for conclusion of civil law contracts on labour relations between the employee and the employer. Generally, labour relations arise between the employee and the employer based on a labour contract as a result of the following: — being elected to a position; — being elected to an appropriate position on a contest basis; — being assigned to or endorsed for a position; — being sent to work by competent authorities; — court decision on conclusion of a labour contract; — acknowledgment of personal work relations based on a civil law contract as labour relations. Labour relations between an employee and an employer also emerge on the ground of actual admittance of the employee to work on the consent or instructions of the employer, even if a labour contract had not been properly drawn up. Such relations may be deemed labour relations by the person using hired work or by court at the application of the contractor. The parties to a labour contract are the employee and the employer (Article 20 of the Labour Code of the Russian Federation). Employee is a person who has entered into labour relations with the employer. Generally, a person may enter into labour relations as an employee if he has reached the age of sixteen, but there are a number of exceptions to this rule. Pursuant to Article 63 of the Labour Code of the Russian Federation, persons who are receiving general education and have reached the age of fifteen may enter into a labour contract for the purpose of carrying out light work which does not harm their health. A labour contract may be concluded with a student who has reached the age of fourteen at the consent of one of the parents (guardian) or at the permission of a guardianship body, for the purpose of performing light work that does not harm the employee’s health and interfere with the educational process.

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In organisations of cinematography, theatre, theatrical and concert organisations, circuses, it is also permitted to enter into a labour contract with persons who have not reached the age of fourteen, with the consent of one of the parents (guardian) or permission of a guardianship body, for participation in the creation and performance of pieces of art, provided that such do not damage health and moral development of the employee. In that case, the permission of the trusteeship and guardianship body shall include an indication of the duration of the daily working hours and other conditions under which the work may be performed. Employers may be represented by legal entities and capable persons of age, as well as minors upon obtaining full legal capacity (Article 20 of the Labour Code of the Russian Federation). Minors aged from fourteen to eighteen may enter into labour contracts with employees, provided that they have independent income, at their legal representatives’ (parents, guardians) written consent. Labour relations are characterised with the following features: — they are of personal nature (the employee is obliged to perform the work function personally); — they are gratuitous (work is performed for payment) and continuous; — they are of mutual character, i.e. the rights and obligations belong to each of the parties. The above employees’ and employers’ mutual rights comprise the content of labour relations. The primary rights of an employee include his rights to: — conclusion, modification, and termination of labour contract; — being provided with work stipulated by the labour contract; — a work place corresponding to state labour protection regulations and terms envisaged by the collective agreement; — timely and full payment of earnings according to his qualification, labour complexity, quantity, and quality of the fulfilled work; — rest, providing weekly days-off, public holidays, paid annual leave; — full and valid information on the working conditions and safety requirements at the work place; — professional training and professional development; — unification, including the right to establish trade unions and to join them to protect their labour rights, liberties, and legal interests; — participation in the management of the organisation in the forms envisaged in legislation and collective contract; — protection of labour rights, liberties, and legal interests using all methods not prohibited by law; — resolution of individual and collective labour disputes, including the right to strike as prescribed by the Labour Code of the Russian Federation and other federal laws;

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— recovery of damage incurred by the employee due to his execution of labour duties, compensation of moral damage, etc. Pursuant to Article 21 of the Labour Code of the Russian Federation, the employee shall be obliged to: — conscientiously fulfil his labour duties; — observe internal labour rules and labour discipline; — fulfil specified labour quotas; — observe safety requirements; — treat carefully the property of the employer, etc. The employer’s rights and obligations are set forth in Article 22 of the Labour Code of the Russian Federation. The main rights of the employer include the following: — right to conclude, modify, and terminate labour contracts with employees; — right to conduct collective negotiations and conclude collective contracts; — right to award employees for efficient conscientious work; — right to demand that employees fulfil labour duties and treat carefully the property of the employer; — right to impose disciplinary and material liability on employees according to legislation; — right to adopt local normative acts governing legal relations; — right to establish associations of employers in order to represent and protect their interests and to join them. The employer shall be obliged to: — comply with the labour legislation; — provide to the employees work stipulated by the labour contract; — ensure safety and all the necessary working conditions; — ensure equal pay for equal labour and timely and full payment of wages; — have employees familiarise themselves with local normative acts which are directly related to their working activities, against their signatures; — consider representations made by relevant trade union bodies concerning revealed breaches of labour legislation and take measures for eliminating them; — compensate for harm inflicted on employees due to their execution of work duties, etc.

Test questions and tasks 1. 2. 3. 4. 5.

What is the main task of labour law as a branch of law? Please list the main principles of labour law. Please list the grounds for arising of labour relations. What is the minimum age of the employee? Please characterize the main rights and obligations of the employer and the employee.

Chapter 21. LABOUR CONTRACT 21.1. Definition of Labour Contract and Its Conclusion Pursuant to Article 56 of the Labour Code of the Russian Federation, a labour contract is an agreement between an employer and an employee, whereby the employer undertakes to provide work to the employee in line with the labour function stipulated, to ensure the working conditions envisaged by labour legislation and other acts, to pay wages in due time and in full, and the employee undertakes to carry out in person the labour function defined by the agreement and to observe the employer’s in-house rules. A labour contract contemplates on a variety of factors and circumstances connected with the performance of work. It must indicate full information about the employee and the employer, as well as the information on the place of work; labour function; date of commencement and ending of work (if a fixedterm contract is concluded); the terms of remuneration for labour; working hours and leisure hours; guarantees and compensations for work in harmful and (or) hazardous working conditions; terms of working conditions at the place of work and defining the nature of work; the clause on the mandatory social insurance of the employee. A labour contract may include additional terms which do not deteriorate the employee’s position in comparison with the conditions set forth by labour legislation and collective agreements. Labour contracts shall be distinguished from civil contracts connected with hire (work contract, other contracts on rendering of services). The definition of the legal nature of a contract is necessary in order to define the legal status of its parties, because if an employee works under a labour contract, he is entitled to annual paid leave, compensations due to sick leave, awards as per the system of remuneration for labour, as well as other rights and guarantees set forth by labour legislation. Employees who work under civil contracts are not entitled to such. The following are the main differences between labour and civil contracts: 1. while the subject matter of a civil contract is the product of labour, the subject matter of a labour contract is the labour itself according to the quali-

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fication and position of the employee. After the performance of a certain task labour relations survive; 2. in the course of work under a labour contract, the employee is obliged to comply with the internal work rules, which is not the case for a civil contract; 3. an employee working under a labour contract is paid wages, the major part whereof being paid regardless of the results of labour for the period due. An employee working under a civil contract receives remuneration for the product of his work or for a certain time period. Labour contracts may be concluded for an indefinite period of time or may be fixed-term contracts. Under Article 58 of the Labour Code of the Russian Federation, a fixed-term labour contract is concluded where labour relations cannot be established for an indefinite period of time, given the nature of the work and the terms of its performance. The employer may not require the employee to perform work which is not stipulated by the labour contract. A labour contract shall enter into force from the day of its signing by the employee and the employer, unless otherwise envisaged by legislation or by the labour contract itself, or from the day when the employee is actually admitted to work with the knowledge or at the instruction of the employer. The employee must begin to execute his labour duties from the day specified in the labour contract, and if such day is not defined — on the next working day after the contract enters into force. Pursuant to Article 64 of the Civil Code of the Russian Federation, unreasoned refusal to conclude a labour contract is prohibited. The employer may not refuse to conclude a labour contract based on sex, race, skin color, nationality, language, origin, and other circumstances not pertaining to the business qualities of the employee (with the exception of cases where a right or an obligation to set forth these restrictions is envisaged by federal law. For instance, Article 253 of the Labour Code of the Russian Federation restricts hiring women at work with harmful or hazardous conditions, Article 351.1 of the Labour Code of the Russian Federation sets forth restrictions on work in educational sphere for persons with criminal record for crimes against life and health, freedom, honor and dignity of a person). It is also prohibited to refuse to conclude a labour contract with women for reasons associated with pregnancy or having children. Russian labour legislation sets forth the opportunity to appeal in court the refusal to conclude a labour contract. When concluding a labour contract, the hired person shall present to the employer a certain number of documents (other than which the employer is not entitled to request): — passport or another identification document; — labour book (except for the cases where a labour contract is concluded for the first time); — insurance certificate of state pension insurance;

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— military registration documents — for persons subject to military service; — educational record and (or) document on qualification or special knowledge — for persons hired for work requiring special knowledge or special training; — certificate on the lack of criminal record or a fact of criminal prosecution, or a certificate on the termination of criminal prosecution on rehabilitating grounds — when being hired for work connected with activity which people who have or had a criminal record are not admitted to. Article 66 of the Labour Code of the Russian Federation sets forth that a labour book is the primary document on the work activities and tenure of the employee. It contains the data about the employee, the work performed by him, transfers to other permanent work positions, as well as grounds of termination of labour contract and data on awards for work achievements. Data on penalties are not indicated in the labour book, except for the fact where redundancy was the penalty. Pursuant to Article 66 of the Labour Code of the Russian Federation, an employer (except for employers who are persons not deemed individual entrepreneurs) shall keep a labour book for each employee who has worked for the employer for over five days if such work was the main job for the employee (as opposed to second job, which may be performed by the employee under a labour contract within time free from work at the same employer (internal second job) and (or) at another employer (external second job)). Under Article 67 of the Civil Code of the Russian Federation, a labour contract shall be drawn up in writing in two hard copies, each of those signed by the parties. One of the copies is transferred to the employee; the other is for the employer. After a labour contract is concluded, the employer issues an order (decree) on hiring, which is shown to the employee against his signature. The parties to a labour contract may set forth a provision on probation of the employee to test his fitness for the job. Such probation period may not be established for pregnant women and women who have children younger than one and a half years; for minors under 18; for specialists who have graduated higher educational institutions and are hired for the first time in the trade acquired within one year upon graduation; for persons elected to an office to work for payment, and other categories. The probation period may not exceed 3 months, and for persons who apply for managerial office — it may not exceed 6 months. In the event of an unsatisfactory result of probation, the employer shall have the right to terminate the labour contract before the end of the probation period upon three days’ written notice indicating the reasons that served as grounds to recognize the employee as having failed to pass the probation period. The employee has the right to contest the employer’s decision in court (Article 71 of the Civil Code of the Russian Federation).

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21.2. Modification and Termination of a Labour Contract The parties to labour relations may modify the terms of a labour contract by mutual written agreement. Labour legislation recognises transfer to another job as a form of modifying labour relations. Under Article 72.1 of the Labour Code of the Russian Federation, transfer to another job means a permanent or temporary modification of the labour function of the employee while the latter continues to work for the same employer, as well as the employee’s relocation to another region together with the employer. Transfer to another job is only allowed with the employee’s written consent, except for the cases which threaten the life or regular living conditions of the whole population or a part thereof (acts of God, man-made catastrophes, industrial disasters, fires, etc.), as well as where it is necessary to prevent the destruction or damage of the employer’s property or to replace another employee who is temporarily absent due to extraordinary circumstances. In any case, the time period of the extraordinary transfer to another job may not exceed one month. At the same time, Article 72.1 of the Labour Code of the Russian Federation prohibits to transfer or relocate an employee to a job which he is not fit due to his state of health. The terms of a labour contract may be modified at the initiative of the employer due to a change in organisational or technological working conditions, which the employer shall notify the employee of within two months before such change. If the employee refuses to work in the changed working conditions, the employer is obliged to offer him in writing another job the employer has. If there is no such job or if the employee refuses to accept the job offered, the labour contract is deemed terminated. Article 75 of the Labour Code of the Russian Federation envisages that in the case of change of proprietor of the organisation, the new proprietor may within three months from the day of arising of his property right terminate labour contract with the manager of the organisation, his deputies, and the chief accountant. However, the change of proprietor of the organisation may not serve as grounds to terminate labour contracts with other employees of the organisation. However, if an employee refuses to continue to work because of the change of the proprietor of the organisation, the labour contract is deemed terminated. Termination of labour contract is the discontinuance if its legal force, termination of the parties’ legal and contractual rights and duties. Article 77 of the Labour Code of the Russian Federation lists the grounds for termination of a labour contract. These include: 1) the parties’ agreement; 2) the expiry of the effective term of the labour contract (except for cases where labour relations actually continue, and neither of the parties has demanded that they be terminated);

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3) the rescission of the labour contract at the employee’s initiative; 4) the rescission of the labour contract at the employer’s initiative; 5) the transfer of the employee at his request or with his consent to another job with another employer or his transfer to an elected job; 6) the employee’s refusal to continue working due to the change of the proprietor of the organisation; 7) the employee’s refusal to continue working due to a change in the labour contract terms defined by the parties; 8) the employee’s refusal to be transferred to another job as might be required according to his medical certificate; 9) the employee’s refusal to be transferred to a job in another area together with the employer; 10) circumstances beyond the parties’ control; 11) the violation of the rules of the conclusion of a labour contract, if such violation makes the continuation of work impossible. Thus, a labour contract may be terminated due to the following: а) at the parties’ initiative (joint initiative or one of the parties’ initiative); б) circumstances beyond the parties’ control. A labour contract may be terminated at any given moment at the parties’ agreement. If the employee initiates termination of labour contract, he shall give to the employer a two weeks’ written notice. Article 80 of the Labour Code of the Russian Federation sets forth that the employee may withdraw his application any time before the expiry of the time of notice. In this case, resignation is not effected if no other employee has been invited for this job that the employer may not reject. Upon the expiry of the time of notice of resignation, the employee may cease to work. On his last day at work, the employer must hand the labour book and other documents pertaining to work, to the employee at his application, and settle accounts with the employee. If the labour contract has not been terminated and the employee does not insist on dismissal upon expiry of the time of notice of resignation, the labour contract is not deemed terminated. Article 81 of the Labour Code of the Russian Federation sets forth the following cases of redundancy at the initiative of the employer: — the liquidation of the organisation or termination of the activities of an individual entrepreneur; — staff cuts at the organisation, individual entrepreneur (if it is impossible to transfer the employee at his written consent to another job at the same employer); — the employee’s failure to meet the requirements associated with his position or job due to insufficient qualifications as confirmed by the results of attestation (if it is impossible to transfer the employee at his written consent to another job at the same employer);

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— the change of the proprietor of the organisation (with respect to the manager of the organisation, his deputies, and chief accountant); — numerous failures by the employee to fulfil his labour duties without justifiable reasons, if he has been reprimanded); — a single severe violation by the employee of his labour duties. Such single severe violations include: а) absenteeism, i.e. absence from the workplace without a good reason during the whole working day, irrespective of the duration thereof, as well as in the event of absence from the workplace without a good reason for longer than four consecutive hours within the working day; b) appearance of the employee at the workplace in the state of alcoholic, narcotic, or another intoxication; c) disclosure of a secret protected by law (state, commercial, service, and other) that became known to the employee as a result of his execution of labour duties, including the disclosure of the personal data of another employee; d) committing larceny at the place of work (including petty) of others’ property, embezzlement, willful destruction or damage to property as determined by a court ruling that has entered into legal force, or by a decision of other competent official; e) violation by the employee of labour protection requirements, if such has resulted in severe consequences (industrial accident, disaster) or is known to have created a real hazard of such consequences; f) commitment of culpable actions by an employee handling money or valuables, if such actions provide grounds to lose confidence in him on the part of the employer; g) commitment of an employee engaged in educational functions of an immoral deed that is incompatible with the given work; h) a single severe violation by the manager of the organisation (its branch, representation office) or his deputies of their labour duties; i) presentation of forged documents by the employee to the employer at the conclusion of the labour contract; j) other cases stipulated by law or contract. Dismissal of an employee at the employer’s initiative is prohibited (except for due to liquidation of an organisation or termination of business activities of an individual entrepreneur) during the employee’s sick leave or annual paid leave. As for the circumstances beyond the parties’ control, which constitute grounds for termination or a labour contract, these include (under Article 83 of the Labour Code of the Russian Federation): the employee being recruited for military service; restoration of an employee who had previously fulfilled this work at the decision of the state labour inspectorate or court; employee being sentenced to a punishment ruling out the continuation of the previous work; arising of extraordinary circumstances hindering the continuation of labour relations, etc.

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The termination of labour contract shall be established by an order (decree) of the employer. The employee shall familiarize himself with the respective order (decree) against his signature.

21.3. Social Partnership in Labour and Collective Agreements Social partnership in the labour sphere is the manner of governance of the employee-employer relations which is based on mutual respect and taking into account the interests of the parties while rejecting coercion and any destructive forms of interaction. Social partnership is an instrument which helps the parties to labour relations to find the optimal ways of improving their relations (economically, socially, and politically fit). Pursuant to Article 23 of the Labour Code of the Russian Federation, social partnership in labour sphere is a system of relations between employees, employers, bodies of state authority, municipal bodies, aimed at ensuring coordination of the interests of employees and employers in the issues of governing labour relations and other relations directly associated with them. The main principles of social partnership include: equality of parties, respect for and taking into account the interests of the parties, interest of the parties in participation in contractual relations, assistance of the state in the strengthening and development of social partnership on a democratic basis, observation of labour legislation, and other principles. Pursuant to Article 25 of the Labour Code of the Russian Federation, the parties of social partnership are employees and employers represented by authorised persons. Governmental and municipal bodies are deemed parties to social partnership when they act as employers, as well as in other cases envisaged by labour legislation. Social partnership shall be implemented as collective negotiations regarding the preparation of draft collective agreements; mutual consultations (negotiations); the employees’ and their representatives’ participation in the management of the organisation; labour dispute resolution. The main representatives of the employees are trade unions. The employer’s interests are represented by the manager or other authorised persons during negotiations, conclusion or modification of collective agreements, as well as during resolution of collective labour disputes. As a result of various collective negotiations, a collective agreement is concluded, which is a legal act governing social labour relations within the organisation or of an individual entrepreneur and entered into between the employees and employer (Article 40 of the Labour Code of the Russian Federation). The content and structure of a collective agreement shall be defined by the parties at their discretion. Pursuant to Article 41 of the Labour Code of

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the Russian Federation, a collective agreement may include the employees’ and employer’s duties regarding the following: — forms, systems, and amounts of wages; — payment of allowances and reimbursements; — mechanism of remuneration taking into account inflation and increase in prices; — working time and leisure time, including the matters of granting annual leave and its duration; — improvement of working conditions and labour protection, including of that of women and minors; — partial or full reimbursement of the employees’ meals; — waiver from strikes if respective terms of collective agreement are observed, and other issues. A collective agreement is concluded for the term up to three years (it may be prolonged) and enters into force upon its signing by the parties or at a certain date set forth by the agreement itself. Breach of a collective agreement leads to liability prescribed by law and labour contract. Thus, while a labour contract governs the relations of an employer with a certain employee, a collective agreement governs the employer’s relations with all of his employees. While the effective term of a labour contract depends on the existence of labour relations with a certain employee, a collective agreement remains in force for three years and is a local legal act.

Test questions and tasks 1. 2. 3. 4. 5. 6.

What are the differences between a labour contract and a civil law contract? What is a probation period? Who may initiate the modification of a labour contract? Please briefly characterize the grounds for termination of labour contract. What shall be understood by social partnership in the labour sphere? What is a collective agreement?

Chapter 22. WORKING TIME AND LEISURE TIME 22.1. Definition and Types of Working Time The notion of working time is of high social importance and is also fiercely debated over due to various reasons. First of all, working time is the main manner of standardising labour, secondly, working time is the crucial indicator of the quality of life, since the less time one spends at work, the more time one has to spend with his family, devote to self-improvement, etc. Pursuant to Article 91 of the Labour Code of the Russian Federation, working time is the time when the employee must fulfil his labour duties in compliance with the internal labour rules and with the terms of the labour contract, i.e. the time when the employee is at the employer’s disposal. The law sets forth an imperative requirement whereby the normal duration of working time may not exceed forty hours per week, the employer being obliged to keep track of time each employee actually worked. Reduced working hours shall be established for a number of categories of citizens: employees aged below 16 (up to 24 hours a week); for employees aged from 16 to 18 (up to 35 hours a week); for disabled employees — disability groups I or II (up to 35 hours a week). However, reduced duration of a working week may be established for other categories of employees by federal law. For instance, the duration of working hours for pedagogical employees is set forth based on the reduced working hours (not exceeding 36 hours a week). As opposed to reduced duration of working time, which reduction is envisaged by law, the employee and the employer may agree to set forth part-time work regime for the employee. Said agreement may be concluded upon entry into labour agreement or later. Hence, the establishment of an incomplete working day is the right of the parties to a labour contract, and the employer may refuse to grant that right to the employee. However, under Article 93 of the Labour Code of the Russian Federation, the employer is obliged to set forth an incomplete working day at the request of an expectant mother, one of the parents (trustee) of a child up to fourteen years of age, and in other cases. Work under part-time arrangement does not incur any restrictions of the length of paid annual leave, calculation of the length of service, and other

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labour rights, with the exception of the wage amount, which shall be paid proportionally to the time spent at work. Generally, the duration of a working day directly preceding a public holiday and at nighttime (from 10 p.m. to 6 a.m.) shall be reduced by one hour. In the procedure established by law and pursuant to Article 97 of the Labour Code of the Russian Federation, an employer is entitled to have an employee work outside the working hours for overtime work. Thus, overtime work is work performed by the employee at the employer’s initiative outside of the employee’s working hours. An employer may have employee work overtime with the employee’s written consent in the following cases: 1) where there is a need to complete work started which, due to an unforeseen delay relating to technical conditions, could not be completed within the working hours established for the employee, if the non-completion of such work can lead to damage to or peril of the employer’s property, or can endanger human life and health; 2) where temporary works are carried out in terms of repair and restoration of mechanisms and structures in case their inoperability can cause termination of work for a significant number of employees; 3) for the purpose of continuing work in case of absence of the next-shift employee, if the work cannot tolerate a break. In such cases, the employer is to take immediate measures to replace the employee with another one. An employer may have employee work overtime without the employee’s consent in the following cases: 1) where works are performed as required for the prevention of a catastrophe, an industrial disaster, or for the elimination of the consequences of a catastrophe, an industrial disaster, or a natural calamity; 2) where works are performed for the public benefit to eliminate unforeseen circumstances that disrupt the normal operation of water supply, gas supply, heating, lighting, transport, and communication systems; 3) where works are performed due to the declaration of a state of emergency or martial law, as well as where necessary in emergency situations endangering the lives or normal living conditions of the whole population or a part thereof. An employee may perform his job duties in an unregulated working day arrangement. Unregulated working day is a special working regime where individual employees may be engaged in fulfilling their labour functions from time to time at the order of the employer outside of their regular working hours. The list of positions of employees with unregulated working day shall be fixed in the collective agreement or a local normative act which is adopted taking into account the opinion of the representative body of employees (Article 101 of the Labour Code of the Russian Federation). Unregulated working day, as a rule, is applicable to employees engaged in administrative, managerial, creative work which is not subject to strict tracking

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and who may be granted the opportunity to spread their time at their discretion (lawyers who take part in court hearings; employees entering into contracts with foreign counterparts; employees of scientific research institutions, etc.). Flexible hours are at the disposal of certain categories of employees, where the parties define the beginning, the end, and the total length of the working day. In this case, the employer provides for the employee to work the total number of working hours within respective registered periods (working day, week, month, etc.). Exceeding the duration of working day within the said registered periods may not be deemed overtime work.

22.2. Labour Regulations and Labour Discipline Under Article 189 of the Labour Code of the Russian Federation, labour discipline is the mandatory subordination for all employees to the rules of conduct determined under current legislation, collective agreement, local normative acts, and labour contract. The employer shall establish the conditions necessary for the observance of labour discipline by employees. Labour discipline is more than a mere unilateral act of subordination to certain norms, but it is also mutual responsibility of the employer and the employee, illustrated by bona fide attitude to their duties and the other party’s rights. Labour discipline primarily suggests strict observance of the internal labour regulations which are a local standard governing, in accordance with the law, the manner of hiring and dismissal of employees, the basic rights, obligations, and accountability of the parties to labour contract, work regime, leisure time, incentive and punitive measures applied toward employees, as well as other issues of the regulation of labour relations with this employer. It is obvious that necessary labour conditions alone cannot guarantee effective use of the employee’s work time and bona fide attitude to his job duties. Therefore, labour legislation establishes special legal means facilitating the maintenance of labour discipline. These include awards for success at work and disciplinary liability. Pursuant to Article 191 of the Labour Code of the Russian Federation, the employer shall encourage employees who conscientiously perform their labour duties. Performance of labour duties is deemed conscientious if it strictly conforms to the requirements set for the job, to the rules and norms of the job instruction, professional characteristics of the job, and other standards. Labour incentives may take the following forms: declaration of gratitude, granting a bonus, rewarding with a valuable gift and an honorary certificate, and nomination for the title of the best in the profession. The internal labour regulations may set forth other types of incentives, as well as application of several incentives (declaration of gratitude along with granting a bonus).

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Employees may be nominated for state awards for particular labour services. These awards are the ultimate form of incentives for achievements in the spheres of statecraft, science, economics, culture, art, and education, in the consolidation of legality, and for other merits to the state. The following types of state awards are in place in Russia: a) supreme ranks (Hero of the Russian Federation and Hero of Labour of the Russian Federation); b) orders (order “For Merit to the Fatherland” and others); c) badges of merit (badge of merit “For Honorable Service” and others); d) medals (medal “For bravery” and others); e) titles of honor (Meritorious Scientist of the Russian Federation, etc.). Disciplinary liability is envisaged for an employee’s disciplinary misdeed, which is the non-performance or improper performance by an employee of the labour duties assigned to him. Pursuant to Article 192 of the Labour Code of the Russian Federation, the employer is entitled to apply the following disciplinary punishments: 1) a warning; 2) a reprimand; 3) discharge based on the relevant grounds. However, federal laws, by-laws, and regulations on discipline may also stipulate other disciplinary punishments for certain categories of employees. Imposition of disciplinary penalties which are not envisaged by federal law is prohibited. Article 192 of the Labour Code of the Russian Federation expressly indicates that while imposing a disciplinary penalty, one shall take into account the degree of gravity of the misdeed and the circumstances in which it took place. According to Article 193 of the Labour Code of the Russian Federation, prior to the imposition of a disciplinary penalty, the employer shall request explanations in writing from the employee. If no such explanations have been submitted within two business days, a relevant report shall be drawn up. However, the non-provision of explanations by the employee shall not be impediment to the application of a disciplinary punishment. A disciplinary punishment shall be applied within one month after the day of discovery of a misdeed, without taking into account the period of an employee’s illness, his vacation, as well as the time necessary to obtain the opinion of the employees’ representative body. A disciplinary punishment may not be applied later than six months after the day of commission of a misdeed, and, if based on the results of an inspection and examination of financial and economic activity or an audit, later than two years after the day of its commission. Only one disciplinary punishment may be applied for each disciplinary misdeed. An employer’s order (instruction) on the application of a disciplinary punishment shall be announced to an employee against his signature within

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three working days upon the day of its issuance, without account taken of the period of the employee’s absence at his workplace. An employee may appeal a disciplinary punishment with the state labour inspectorate and (or) authorities for individual labour dispute settlement. Article 194 of the Labour Code of the Russian Federation governs the issues of lifting off disciplinary punishments. For instance, if an employee is not subjected to a new disciplinary punishment within a year of the day of the application of a disciplinary punishment, he shall be considered as not having had a disciplinary punishment. In other words, a disciplinary punishment is only valid for one year. An employer shall have the right before the expiration of one year from the day of the application of a disciplinary punishment to remove it from the employee at his own initiative, or at the request of the employee himself, or at the petition of his immediate supervisor or the employee’s representative body.

22.3. Definition and Types of Leisure Time Right to leisure is a constitutional right of every citizen and is set forth in section 5 Article 37 of the Constitution of the Russian Federation, whereby each employee working under a labour contract shall be guaranteed the statutory duration of work time, days off, holidays, and paid annual leave. Article 106 of the Labour Code of the Russian Federation defines leisure time as time when the employee is free from the execution of labour duties and which he may use at his own disposal. The following are the types of leisure time: 1. breaks during the working day. These are provided for rest and meals at least thirty minutes and not greater than two hours in duration. The time in break is not included in the working time. The time of the break and its length shall be specified in the internal labour rules or by agreement between the employee and the employer. Pursuant to Article 109 of the Labour Code of the Russian Federation, in certain types of works, special breaks shall be envisaged for employees during the working time stipulated by the technology and organisation of the production process and labour. Employees working in cold seasons in the open air and other employees shall be entitled to special breaks for warming up and rest which are included in the working time. The employer must outfit rooms for employee warming up and rest; 2. daily rest is the time from the ending of a workday until its beginning the next day. The Labour Code of the Russian Federation does not set forth minimal duration of this type or leisure, but customarily the working regime is organised in such a manner that the minimal duration of daily (intershift) rest, together with the lunchtime comprised at least double duration of work time on the preceding working day (shift). Law can envisage different duration of daily rest for certain categories of employees (bus or cargo vehicle drivers, etc.);

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3. days off (weekly continuous rest), which, pursuant to Article 111 of the Labour Code of the Russian Federation are granted to all employees. As a general rule, with a five-day working week arrangement, the employees shall be provided with two days off per week, with a six-day working week arrangement, one day off. Sunday shall be the common day off. The second day off with a five-day working week arrangement shall be specified in the collective contract or internal labour rules. The duration of weekly continuous rest under Article 110 of the Labour Code of the Russian Federation may not be less than forty-two hours; 4. public holidays, which are the following in the Russian Federation: January 1, 2, 3, 4, 5, 6 and 8 — New Year Holidays; January 7 — Christmas Day; February 23 — Fatherland Defender’s Day; March 8 — International Women’s Day; May 1 — Spring and labour Holiday; May 9 — Victory Day; June 12 — Day of Russia; November 4 — Day of National Unity. Work on these days shall be prohibited, except for the cases expressly set forth by current legislation (prevention of a catastrophe, elimination of the aftermath of natural calamities, etc.). In other cases, engagement of employees for work on days off and public holidays is allowed with their written consent and with account taken of the opinion of the elected body of the primary trade union organisation. However, labour legislation does allow performance of work on public holidays, if such work cannot be suspended due to production-technical conditions (uninterrupted-cycle organisations) and work needed to provide services to the public, as well as due to repair and loading/unloading works. With a few exceptions, should a day off and a public holiday coincide, the day off shall be transferred to the working day following the public holiday; 5. leave, which is granted to the employees annually preserving the place of work and average earnings. The duration of main annual paid leave comprises 28 calendar days or longer for certain categories of employees. For instance, extended main leave of 42 and 56 days in duration is granted to employees of educational institutions, to citizens employed at facilities with chemical weapons, etc. Additional paid leave under Article 116 of the Labour Code of the Russian Federation shall be provided to employees engaged in work with adverse or hazardous working conditions, to employees having a special nature of work, to employees having unregulated working day, to employees working in the regions of Far North or similar locations, as well as in other cases set forth by law. However, employers, taking into account their production and financial resources, may institute additional leave for their employees. The procedure and terms for providing this leave shall be defined in the collective agreement or other local act adopted with the account taken of the opinion of the trade union organisation.

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The right to paid leave within the first year of employment shall be granted to the employee upon the expiry of six months of continuous work for this employer, but this term may be shortened by the parties’ agreement. The order of granting the annual paid leave shall be defined annually in accordance with the leave schedule endorsed by the employer not later than two weeks before the beginning of the calendar year. This leave schedule is obligatory both for the employer and the employee. Due to family circumstances and for other justifiable reasons the employee may request in writing unpaid leave, its duration being defined by the employer’s and employee’s agreement. However, Article 128 of the Labour Code of the Russian Federation lists the cases where such unpaid leave shall be granted (e.g., to disabled employees — up to sixty calendar days per year; to employees in cases of child birth, registration of a marriage, death of close relatives — up to five calendar days, as well as in a number of other cases).

Test questions and tasks 1. What are the differences between reduced duration of working time and parttime working arrangement? 2. In which cases is it admissible to engage an employee in overtime work? 3. Please list the main forms of labour incentives. 4. Please describe the disciplinary punishments which may be imposed on employees. 5. What are the types of leisure as per Russian labour legislation?

Chapter 23. LABOUR PROTECTION. PROTECTION OF LABOUR RIGHTS AND FREEDOMS 23.1. Protection of Labour and Its Organisation The protection of labour is the priority of Russian socioeconomic policy, which is illustrated in Article 7 of the Constitution of the Russian Federation, whereby in the Russian Federation labour and health shall be protected, minimal wage amount shall be established, and other measures of social protection are envisaged. Protection of labour is a system for the preservation of employee’s life and health in the process of labour activity, which includes legal, socioeconomic, organisational, technical, sanitary, medical, preventive, rehabilitative, and other measures. Under Russian labour legislation, the obligation to provide safe working conditions and to organise labour protection is primarily vested with the employer, who must provide: — the safety of employees during the operation of buildings, structures, and equipment; — the creation and maintenance of the labour protection management system; — labour conditions corresponding to the labour protection requirements at each place of work; — employees’ labour and leisure regime in accordance with the labour legislation and other legal acts containing labour law norms; — training in provision of first aid to victims of industrial accidents, instructing personnel on labour protection, probation, and examining the knowledge of labour protection requirements; — the organisation of special evaluation of labour conditions; — non-admittance to work of employees who have not undergone mandatory medical examinations, mandatory psychiatric examinations, as well as in the event of medical contraindications; — informing employees of the conditions and protection of labour in work places, of the risk of an injury, of compensations therefor, and of means of individual protection;

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— the familiarisation of employees with the labour protection requirements; — the elaboration and approval of rules and instructions in the area of labour protection, as well as other measures. Article 214 of the Labour Code of the Russian Federation sets forth the corresponding employees’ obligations, which include: — the observance of labour protection requirements; — the proper use of means of individual and collective protection; — the undergoing training in safe methods and measures for the performance of work and the provision of first aid; — the immediate notification of their higher supervisor of any situation threatening human life and health, of each accident that occurs in the workplace or of a deterioration of the state of his health, including the manifestation of symptoms of an acute occupational illness; — the undergoing of mandatory preliminary (when starting work) and periodic (during labour activity) medical checkups. The bodies exercising state labour protection management include: the Government of the Russian Federation, federal bodies of executive authority, which may conduct state inspection of labour conditions. Said inspection shall be organised for evaluation of actual labour conditions, as well as for evaluation of correctness of providing guarantees and compensations for work in harmful and hazardous conditions of labour. The system of labour protection in the Russian Federation shall be created and managed by the state, and the employee incurs no expenses in connection with measures devoted to the protection of labour. As prescribed by Article 217 of the Labour Code of the Russian Federation, in the interests of ensuring observance of labour protection requirements and monitoring their fulfilment, each employer performing production activity with a contingent of more than fifty employees shall establish a labour protection service or introduce the position of a labour protection specialist possessing appropriate training or work experience in the field. If an employer is not obliged by law to establish such labour protection service, he is obliged to observe the proper labour conditions personally. An employer and employees may initiate the establishment of labour protection committees (commissions) (Article 218 of the Labour Code of the Russian Federation). They shall include representatives of the employer and representatives of the elected body of the primary trade union organisation or of another representative body of employees on a parity basis. Thus, locally the labour protection issues are governed by collective agreements or individual labour contracts and labour protection instructions. Employer’s and employees’ violations in the labour protection sphere shall be punishable by material, disciplinary, administrative, and criminal liability.

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23.2. Protection of Labour Rights and Labour Disputes Protection of employees’ labour rights is their immediate activity, as well as the activity of their representatives and competent bodies centered around influencing the employer in order to eliminate any obstacles to proper exercise of employees’ rights, freedoms, and legitimate interests. Article 352 of the Labour Code of the Russian Federation sets forth everyone’s right to protect their labour rights and freedoms with non-prohibited means. The primary means of protection of labour rights include: self-protection of labour rights by employees; protection of labour rights and legitimate interests of employees by trade unions; state supervision and control over the observance of the labour legislation and other normative acts containing norms of labour law; and judicial protection. Federal state monitoring over observance of labour legislation and other normative acts containing norms of labour law is effected by the federal labour inspectorate. State monitoring of compliance with rules relating to safe work conduct in specific branches and certain sites of industry shall be carried out by the relevant federal executive bodies. Federal labour inspectorate is a unified, centralised system composed of the federal executive governmental body and its territorial bodies (state labour inspectorates). The primary tasks of the federal labour inspectorate include: — to ensure observance and protection of citizens’ labour rights and freedoms, including the right to safe working conditions; — to ensure that employers observe labour law; — to provide employers and employees with information on the most effective means and methods of observing the provisions of labour law, etc. Pursuant to Article 357 of the Labour Code of the Russian Federation, state labour inspectors in carrying out federal state supervision over observance of labour legislation are entitled to: — visit organisations of all legal and organisational forms at any hour with proper identification; — request documents, explanations, and information needed to fulfill their monitoring and enforcement functions from employers and their representatives; — investigate industrial accidents; — present to employers and their representatives binding injunctions to eliminate violations of labour law; — claim in judicial proceedings to liquidate organisations or suspend the activity of their structural subdivisions due to violations of workplace safety requirements, etc. The primary guarantee of the efficient activity of state labour inspectors is that they are authorised representatives of state and are under its protection, are independent from state bodies, officials, and subdue to law only. However, the

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decisions of state labour inspectors may be appealed to their immediate supervisors, to chief state labour inspector of the Russian Federation, or in court. State control over observance of labour law requirements in certain spheres of production is effected by the state energy control, state sanitary and health control, state control in the sphere of nuclear and radiation safety, and other bodies. Article 370 of the Labour Code of the Russian Federation envisages the trade unions’ right to monitor compliance with labour law and compliance with the terms of collective agreements by employers and their representatives. Employers are obliged within one week from the day of receiving a demand to eliminate discovered violations to inform the relevant trade union body of the results of their review of the given demand and measures taken. Employers are obliged, for the purpose of facilitating the efficient work of trade union organisation, to provide to the elective bodies of the latter the premises for conducting meetings, storing documents, and the possibility to disseminate information in the places available to employees. The self-protection of employees’ labour rights means his right (having given prior written notice to the employer or his immediate supervisor) to refuse to perform work that is not stipulated in the labour contract, as well as to refuse to perform work that presents a direct threat to his life or health, with the exception of cases expressly stipulated by law. An employer, as well as his representatives shall not be entitled to obstruct workers in exercising the protection of their labour rights (Article 380 of the Labour Code of the Russian Federation). A separate chapter of the Labour Code of the Russian Federation is devoted to the consideration and resolution of individual labour disputes which are, as a rule, connected with the exercise of employees’ and employers’ labour rights. An individual labour dispute is an unresolved disagreement between an employer and employee on issues of application of labour legislation and other legal acts containing labour law norms, collective agreement, contract, local normative act, labour contract, on which a petition is made to the individual labour dispute review body, These bodies include labour dispute commissions and courts. Under Article 384 of the Labour Code of the Russian Federation, labour dispute commissions shall be set up at the initiative of employees or employer made up of equal number of representatives of the employees and employer. The employer and the representative body of employees that have received a written proposal to set up a labour dispute commission shall send their representatives to the commission within ten days. A dispute between employee and employer shall be considered by the commission in case of failure to settle the disagreement by negotiations between employee and employer. The employee may address the labour dispute commission within three months upon the day when he discovered or should have discovered the violation of his right. A labour dispute commission shall consider an individual labour dispute within ten calendar days from the day when the employee filed his application.

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The dispute shall be considered in the presence of the employee or his authorised representative. A dispute may be heard in the absence of the employee or his representatives only upon employee’s application in writing (Article 387 of the Labour Code of the Russian Federation). A session of a labour dispute commission shall be considered legitimate if at least a half of the members representing employees and at least a half of the members representing employer are present. The decision of a labour dispute commission shall be enforced within three days upon expiry of ten days provided for an appeal thereof. In the event of non-enforcement of the decision of a labour dispute commission within established term, said commission shall issue to the employee a certificate deemed a document of execution, based on which court bailiff shall enforce the labour dispute commission’s decision in the compulsory procedure. In the event an individual labour dispute is not heard by the labour dispute commission within the ten-day period or the employee disagrees with a decision taken, he may refer the dispute for consideration by court. Pursuant to Article 391 of the Labour Code of the Russian Federation, individual labour disputes shall be considered in courts upon a petition from the employee, the employer, or trade union on behalf of the employee if they disagree with the ruling of a labour dispute commission, or upon direct petition to court from the employee, and upon petition from a prosecutor if the ruling of a labour dispute commission does not conform to the labour legislation and other acts containing norms of labour law. An employee is entitled to file a claim with the court for resolution of an individual labour dispute within three months after he discovered or should have discovered the violation of his right, and for resolution of disputes connected with dismissal, within one month from the day he was served with a copy of a termination order or his labour book. Apart from an individual labour dispute, a collective labour dispute may arise between the employee and the employer. A collective labour dispute is an unresolved agreement between employees and employers concerning the establishment and changing of working conditions (including wages), the conclusion, modification, and fulfilment of collective agreements and other agreements, as well as disagreements concerning an employer’s refusal to consider the opinion of an elected employees’ representative body in adopting local normative acts. Employees and their representatives shall have the right to present demands. The demands shall be approved at a corresponding employees’ assembly (conference), shall be in writing and sent to the employer by the authorised employees’ representative body. An employer shall accept for examination demands sent by employees and shall consider them within two business days upon receipt. Pursuant to Article 401 of the Labour Code of the Russian Federation, the procedure of resolving a collective labour dispute consists of the following

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stages: consideration of the dispute by a reconciliation commission; consideration with the participation of a mediator and (or) in labour arbitration. None of the parties may waiver from the dispute being considered by the reconciliation commission. A reconciliation commission shall be set up within two working days after the commencement of a collective labour dispute. If no agreement has been reached in the reconciliation commission, the parties are obliged to start negotiations on the invitation of a mediator. If needed, the parties to a collective labour dispute may turn to the relevant state body for the resolution of a collective labour dispute to recommend a candidate for mediator (Article 403 of the Labour Code of the Russian Federation). The next stage of a labour dispute (in case of its remaining unresolved) is its settlement in labour arbitration proceeding — a body for the consideration of a collective labour dispute which may be established by the parties to a dispute together with the relevant state body for resolution of collective labour disputes. Agreements which the parties agree during the procedure of dispute resolution, including the settlement agreement, shall be executed in writing and shall be binding on the parties. The latter shall observe their enforcement. However, if reconciliation proceedings have not resulted in the settlement of a collective labour dispute or if the employer does not perform the agreement achieved, or if the parties do not execute the decision of labour arbitration, the employees or their representatives have the right to start the organisation of a strike (except for cases envisaged by law). Participation in a strike shall be voluntary, and no one can be coerced to participate or not to participate in a strike. Parties are obliged to continue settlement of a dispute during strike by negotiations. Labour legislation sets forth rights and obligations of employees and employer during strike, as well as conditions which shall be conformed to for the strike to be deemed legitimate. Article 415 of the Labour Code of the Russian Federation expressly prohibits lockout — dismissal of employees at the initiative of the employer due to their participation in a collective labour dispute or in a strike.

Test questions and tasks 1. Please name the primary obligations of the employer and the employee connected with protection of labour. 2. What is the procedure of exercising state control over observance of labour legislation? 3. Please list the main powers of trade union organisation in the sphere of employee labour rights protection. 4. What is the difference between the procedure of resolution of individual labour disputes from the procedure of resolution of collective labour disputes?

PA RT 5 . BASICS OF ADMINISTRATIVE LAW Chapter 24. ADMINISTRATIVE LAW AND PARTICIPANTS OF ADMINISTRATIVE LEGAL RELATIONS 24.1. Subject Matter, Method and Distinctive Features of Administrative Law as a Branch of Law Administrative law is a branch of law which governs the legal relations in connection with the realisation of the executive powers of the state and arising in the sphere of state governance. The distinctive feature of administrative law is that it is a “law of management”, which directly regulates the area of state governance. Thus, state governance is the core and essence of administrative law. In the broader sense, state governance denotes the activities of any state agencies of all branches of authority (executive, legislative and judicial), aimed at the realisation of their authority. In the narrower, legal and organisational sense, state governance denotes the lawful activities of executive agencies for exercising their supervisory and executive functions in various areas of social life: in economics, social security, healthcare, culture, national security and defence, transport, communications, etc. Therefore, contrary to the activities of the legislative or judiciary state governance in the narrow sense is performed by the executive agencies in certain specific forms. Firstly, these agencies issue subordinate legal acts (regulations), which may not contradict the law and which help the executive agencies exercise their functions and achieve their objectives. Secondly, the executive agencies and their officials perform activities aimed at the realisation of laws as well as subordinate legal acts and, in some cases, are entitled to use physical force.

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State governance has a number of defining characteristics: 1. it has a purpose, which is demonstrated by the fact that it is the state that ensures its own national interests are realised and the interests of individuals and society are observed; it is the state that provides guarantees for material wellbeing of the members of society, their moral and physical self-actualisation, legal and social protection. The whole state apparatus serves this purpose by implementing the provisions of the Constitution of the Russian Federation, laws and subordinate legal acts; 2. it is connected with direct implementation, realisation of laws and subordinate legal acts; 3. it is active and dynamic, realising the exact functions of the state in different spheres and solving practical, vitally important objectives; 4. it is connected with state and is based on, among others, state coercion (enforcement); 5. for its realisation, the state creates a special apparatus (a system of state agencies organised in a specific manner), which exercises its competencies with the help of professionals specifically prepared to carry out the respective functions. Thus, the subject matter of the administrative law includes the following elements: 1. social relations connected with the implementation of state functions in economic, socio-cultural and administrative-political areas by the actors of state governance (foremostly, the executive agencies); 2. relations within the system of executive, legislative and judicial authorities, i. e. building an effective cooperation among public bodies and regulating the internal relations within the apparatus; 3. relations in connection with the realisation of administrative procedures and administrative jurisdiction. Administrative procedures are connected with the preparation and publication of administrative acts, issuance of licenses and permits (for the right to perform certain activities), and registration procedures. Administrative jurisdiction is connected with the resolution of disputes in the domain of administrative law, liability in the area of administrative law and application of administrative coercion measures1. Thus, administrative law is a branch of law which governs social relations in the three above named spheres. The method of administrative law, like methods of any other branch of law, is a system of forms and means, by which legal norms have influence on social relations under the regulation of a given legal branch. Almost all branches of law use such legal categories as instruction (placing an obligation to commit certain deeds), permission (authorisation of certain deeds) and prohibition (placing an obligation not to commit certain deeds at the threat or penalty). 1 See Migachev Y.I., Popov L.L., Tikhomirov S.V. Administrative Law of the Russian Federation: textbook for bachelors. M., 2014. Pp. 236–247.

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The specific feature of the administrative law’s method is that state governance, which is its subject matter, predetermines inequality of the parties of administrative legal relations (since there is always someone who governs and someone being governed). Because of this, administrative law is characterised by the method of legal authority or authoritative orders issued by a lawful actor of state governance. Such orders are of one-sided character and express the will of such actor1. Thus, the mechanism of administrative law is mainly based on prohibitions and authoritative means of regulation, i.e. it is mainly imperative (direct subordination of the will of the governed to the will of the governing actors). Administrative legal relations are rarely based on mutual expression of will of parties. One-sidedness of will expression is their common characteristic. However, dispositive methods may be used by the parties to administrative relations if they are state agencies and none of them is subordinated to others.

24.2. Administrative Legal Norms and Administrative Relations An administrative legal norm is a rule of conduct guaranteed by the state (either directly established or allowed by it), regulating the relations in connection with state agencies exercising their powers, their interaction, realisation of administrative procedures and administrative jurisdiction. As a rule, administrative legal norms are created by the executive agencies themselves and may govern relations which are a part of the subject matter of other legal branches (financial, land, tax law, etc.). This specific feature of administrative law is connected with the fact that state agencies regulate various areas of social relations. Hence, the norms of administrative law “penetrate” into those area where specific normative legal acts are already in force (Land Code, Tax Code, etc.). However, this does not mean that the administrative legal norms have the priority or that they have any special legal force. Numerous norms of administrative law are present in normative legal acts, which are strictly hierarchic depending on their legal force and which in any case may not contradict the laws. The norms of administrative law consist of a hypothesis, a disposition and a sanction, similarly to any other legal norms. The said elements of a legal norm are analyzed in para 7.2 hereof. There are several classifications of administrative legal norms: 1. based on their character, they may be: material (those envisaging the rights, obligations and liability of the participants of administrative legal relations) and procedural (those governing the administrative procedures and administrative jurisdiction); 2. based on their means of regulating the behavior of their subjects, they may be: prohibitive, restrictive, permissive or enabling, authorising, stimulating; 1

Migachev Y.I., Popov L.L., Tikhomirov S.V. Op. cit. P. 29.

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3. based on their territorial scope, they may be: federal (set out in federal laws and in force on the whole territory of the Russian Federation) or regional (set out in regional laws and in force on the territory of the respective subjects of the Russian Federation); 4. based on their temporal scope, they may be: temporary (with a fixed term of action) or termless (not limited in time). Administrative legal relations are relations in the area of state governance regulated by administrative legal norms. These legal relations possess the following characteristics: — they arise on the basis of administrative legal norms; — they arise in a specific area: exercising authoritative activities; — one of the participants of such relations is a state agency or public official; — although it is possible to settle administrative legal disputes in court, as a general rule they are solved according to an administrative procedure — i.e., by an authoritarian order of a competent official. Parties to administrative legal relations include state agencies, their structural units, officials, organisations, citizens and their associations. Subjects of administrative legal relations are things in connection with which such relations arise and develop. Such subjects include deeds, decisions and behavior of parties to administrative legal relations; state or private property; objects of spiritual culture; all the rights, freedoms and obligations which form the administrative legal status of citizens in their relations with state agencies. Administrative legal relations are created by legal facts, the classification of which is provided in para. 16.1 hereof. There are several types of administrative legal relations: 1. based on their content, they may be material or procedural; 2. based on the nature of the interaction between their parties, they may be vertical (if one party is subordinate to the other) or horizontal (relations between non-subordinate state agencies, enterprises, organisations or citizens which are not subordinate to each other in connection with the realisation of their rights in the area of state governance); 3. based on the nature of legal facts giving rise to such relations, they may be those that have arisen due to lawful deeds or those that have arisen due to legal offences; 4. based on their duration, they may be termless or temporary.

24.3. System of Administrative Law and Its Sources Administrative law is a system i.e. a sum total of legal norms and legal institutes structured in a certain way. The fact that administrative norms and institutes are a system may be explained by the specifics of the subject matter and method of this legal branch as well as its purposes, the main of which are: 1) creation of conditions for

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the realisation of citizen’s rights, freedoms and legitimate interests by state agencies (actors of state governance); 2) creation of legal framework for the effective operation of executive agencies; 3) creation of favourable conditions for the development of socio-economic, political, cultural and other spheres of social life; 4) protection of citizens and society from misuse or abuse of power, negligence, incompetence of state agencies. The system of administrative law includes the general and special parts. The general part of administrative law establishes institutes governing: the status of administrative law actors; forms and methods of state agencies’ activities; grounds and forms of administrative legal liability; types of administrative penalties. The special part of administrative law governs the organisation and realisation of state governance in various areas: economics, industry, agriculture, trade, defence, security, etc.; as well as organisation and realisation of political, economic and other ties to foreign nations. Sources of administrative law are external forms of manifestation of the administrative legal norms, i.e. normative legal acts of state agencies which contain such norms. The normative legal acts which are sources of administrative law include: 1. the Constitution of the Russian Federation, federal constitutional and federal laws — their administrative legal norms form the basis of the administrative legal branch; 2. universal principles and norms of international law and international treaties of the Russian Federation; 3. decrees of the President of the Russian Federation; 4. normative legal acts of the Government of the Russian Federation; 5. normative legal acts of federal ministries; 6. laws and other normative legal acts of supreme state agencies of the subjects of the Russian Federation (constitutions of the republics which are parts of the Russian Federation, charters of territories, regions and other subjects of the Russian Federation, laws on governments or administrations of subjects of the Russian Federation, etc.); 7. normative legal acts of municipal agencies if the law vests them with the respective authority.

24.4. Administrative Law Actors and Their Status 24.4.1. Citizens, Foreign Citizens and Stateless Persons Citizens are among the most important actors of administrative law, since the protection of their rights and freedoms is the priority of state governance. The administrative legal status of citizens is formed by their rights, freedoms and legitimate interests, their guarantees and the obligations and liability envisaged by administrative legal norms.

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Administrative legal status of citizens is determined by their administrative legal capacity: active and passive. Passive administrative legal capacity is the recognised ability of a citizen to be a party to administrative legal relations, to have rights and bear obligations under administrative law. The fundamental rights and freedoms of a man arise from birth and cease only with death. However, a person may acquire some rights, especially those in the area of state governance, later on. Besides, some of those rights cease long before death. Passive administrative legal capacity is in many cases dependent on age, state of health, education and other factors and circumstances. Active administrative legal capacity is the capacity to exercise rights and perform obligations envisaged by administrative legal norms, and bear the liability in accordance with such norms. Partial active administrative legal capacity arises from 14 years old (when a citizen obtains a passport), full active administrative legal capacity — from 16 years old. Administrative liability arises from the age of 16. The rights which the citizens receive later than at the age of 18 may be exercised from the moment of their acquisition. Administrative legal status may be general or special. The fundamentals of general legal status of man and citizen are provided in Chapter 2 of the Constitution of the Russian Federation — “Rights and freedoms of man and citizen”, whereas Article 2 of the Constitution of the Russian Federation sets out that “man, his rights and freedoms are of supreme value. Recognition, adherence to and protection of rights and freedoms of man and citizen are the obligations of the state”. The fundamental constitutional rights and freedoms of man and citizen are described in more detail in para. 12.1 — 12.2 hereof. However, although the Constitution of the Russian Federation is the most important source of law in the area of rights and freedoms of man and citizen, but it is not the only one. Among the most important legal acts in this area, there are: the Code of the Russian Federation on administrative offences of 30 December 20011; Federal Law of 31 May 2002 “On the citizenship of the Russian Federation”2; Federal Law of 25 June 1993 “On the right of citizens of the Russian Federation to free movement, choice of the place of stay and residence in Russian Federation”3; Federal Law of 12 June 2002 “On the fundamental guarantees of electoral rights and right to participate (vote) 1 See the Code of the Russian Federation on administrative offences of 30 December 2001 # 195-FZ (as of 28 November 2015) // Rossiyskaya Gazeta. 2001. 31 December. 2 See Federal Law of 31 May 2002 # 62-FZ (as of 31 December 2014) “On the citizenship of the Russian Federation” // Rossiyskaya Gazeta. 2002. 5 June. 3 See Law of the Russian Federation of 25 June 1993 # 5242-1 (as of 28 November 2015) “On the right of citizens of the Russian Federation to free movement, choice of the place of stay and residence in Russian Federation” // Rossiyskaya Gazeta. 1993. 25 June.

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on a referendum of citizens of the Russian Federation”1 and many other normative legal acts. Apart from the complex normative legal acts, some of which have been mentioned above, the administrative legal status of citizens is governed by a variety of special legal acts which relate to specific elements or aspects of their status (e. g. Federal Law of 2 May 2006 “On the procedure for handling appeals of citizens of the Russian Federation”2, etc. Thus, fundamental rights and obligations of citizens form their general legal status, whereas their special legal status is formed by specific rights and obligations of citizens in certain areas and spheres of state governance. Guarantees of rights, freedoms and legitimate interests of citizens denotes the sum total of legal, political, economic, social and organisational means which make possible and create proper conditions for a person to exercise their rights and freedoms and which ensure their legitimate interests. Administrative legal guarantees of citizens’ rights are legally established means and instruments which ensure the enjoyment and protection of citizens’ rights in the area of state governance. Apart from rights, freedoms and legitimate interests, citizens carry certain responsibilities to the state. For a breach of such obligations, administrative liability may be imposed on the citizen, which is provided in the Code of administrative offences or laws of subjects of the Russian Federation. Under section 3 Article 62 of the Constitution of the Russian Federation foreign citizens and stateless persons enjoy the same rights and carry the same obligations on an equal basis with citizens of the Russian Federation, apart from the cases specified by federal laws or international treaties of the Russian Federation. Legal status of foreign citizens and stateless persons is governed by Federal Law of 25 July 2002 “On the legal status of foreign citizens in the Russian Federation”3. Under the current legislation, foreign citizens and stateless persons may not: elect and be elected into state agencies, as well as participate in referenda; work as state or municipal servants; acquire land plots into their ownership; engage in business activities or other activities if such activities are connected with the national security and defence or handling of state secrets. There is a specific administrative penalty for foreign citizens and stateless persons — their administrative extradition out of the Russian Federation (Article 3.10 of the Code of administrative offences of the Russian Federation). 1 See Law of the Russian Federation of 12 June 2002 # 67-FZ (as of 3 November 2015) “On the fundamental guarantees of electoral rights and right to participate in a referendum of citizens of the Russian Federation” // Rossiyskaya Gazeta. 2002. 15 June. 2 See Federal Law of 2 May 2006 # 59-FZ (as of 3 November 2015) “On the procedure for handling appeals of citizens of the Russian Federation” // Rossiyskaya Gazeta. 2006. 5 May. 3 See Federal Law of 25 July 2002 # 115-FZ (as of 28 November 2015) “On the legal status of foreign citizens in the Russian Federation” // Rossiyskaya Gazeta. 2002. 31 July.

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Under Article 5 of Federal Law “On the legal status of foreign citizens in the Russian Federation” the term of temporary stay of foreign citizens in the Russian Federation depends on the expiry date of their visas. The term of temporary stay in the Russian Federation of foreign citizens if they do not need a visa to arrive in the Russian Federation is ninety days in total within any 180-day period. The term of temporary stay of foreign citizens who are highly qualified specialists if they do not need a visa to arrive in the Russian Federation depends on the expiry date of the work permit issued to such specialist. The term of temporary stay in the Russian Federation of a foreign citizen who has joined the military service on the basis of a contract is determined on the basis of the procedure specified by the Government of the Russian Federation. A foreign citizen who has arrived in the Russian Federation for academic purposes and who has become a student may stay in the country until their graduation. Foreign citizens are entitled to the freedom of movement at the territory of the Russian Federation for personal or business purposes, except for the territories which require an additional special permit. 24.4.2. President and Executive Agencies As the head of state, the President of the Russian Federation plays the main role in the structure of state governance. The Government of the Russian Federation being the supreme executive agency in the Russian Federation, as well as other executive agencies, also play an important role. Para. 14.1 and 14.4 hereof describe in more detail the main rights and obligations of the President of the Russian Federation, as well as the status of the Government of the Russian Federation. In the context of administrative law, the President is both the supreme state official and, at the same time, a state authority (agency). Although the President of the Russian Federation is not de jure the head of the executive branch of power, he has significant influence on the activities of the executive agencies and the Government of the Russian Federation. E.g., the President, subject to the approval of the State Duma, appoints the Chairman of the Government of the Russian Federation; may preside at the meetings of the Government of the Russian Federation; may dismiss the Government of the Russian Federation; upon the recommendation of the Government of the Russian Federation, may approve or change the system and structure of federal executive agencies and has a number of other competencies in this area. The Administration of the President of the Russian Federation plays an important role in realising the broad spectrum of functions and competencies of the President. Under Decree of the President of the Russian Federation of 6 April 2004 “On the approval of the Regulation on the Administration of the President of

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the Russian Federation”1 the Administration is a state agency established in accordance with the Constitution which supports the activities of the President and monitors the implementation of his decisions. Under paragraph 5 of the Regulation on the Administration of the President of the Russian Federation, the Administration performs the following functions: — preparing the bills to be proposed by the President to the State Duma as the presidential legislative initiative; — preparing proposals for the President to sign federal laws or decline them; — preparing draft decrees, orders, instructions and addresses of the President of the Russian Federation, as well as analytical reports, memoranda and other documents required for the President; — ensuring that federal laws are published, promulgating decrees and orders of the President of the Russian Federation, as well as other documents signed by the President; — preparing materials for the annual address of the President to the Federal Assembly of the Russian Federation and for other keynote speeches and addresses; — preparing recommendations for the President of the Russian Federation on ensuring coordinated functioning and cooperation of state agencies; — supporting the cooperation of the President with political parties, social and religious associations, trade unions, business associations and chambers of trade and commerce; — ensuring that there is a dialogue with the civil society and that its structures develop and strengthen; — supporting the cooperation of the President with foreign state agencies and officials, Russian political and social leaders, international and foreign organisations; — assistance to the President of the Russian Federation in HR-related matters. Many scholars note that the Administration of the President of the Russian Federation and its structural units is not an independent state agency and may not take decisions which are mandatory for other state agencies. The only purpose of the Administration is to assist in the decision-making of the President and ensure that his decisions are implemented. However, de facto the Administration plays a crucial role in the organisation and functioning of the whole state mechanism and its chief is an influential political heavyweight2. As regards the status and legal capacity of executive agencies, the following is of note: 1 See Decree of the President of the Russian Federation of 6 April 2004 # 490 (as of 31 December 2014) “On the approval of the Regulation on the Administration of the President of the Russian Federation” // Rossiyskaya Gazeta. 2004. 8 April. 2 See Bratanovsky S.N. Administrative Law: Textbook. М., 2013. P. 303.

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1. the nature of executive agencies is based on the constitutionally established principle of separation of powers: the legislative, the executive, and the judiciary; 2. the main task of an executive agency is to ensure the enforcement and practical realisation of laws and other normative legal acts; 3. the activities of executive agencies are of the organising, executing, supervising and regulating nature and the results of such activities solve the tasks and objectives of the state1. Para. 14.4 provides the analysis of the structure of federal executive agencies (the Government of the Russian Federation, federal ministries, agencies and services). The structure of executive agencies of subjects of the Russian Federation can be described in the following manner. Executive agencies of subjects of the Russian Federation form the single system of the executive jointly with the federal executive agencies. Federal Law of 6 October 1999 “On general principles of the organisation of legislative (representative) and executive agencies of subjects of the Russian Federation”2, as well as legislative and other normative acts of subjects of the Russian Federation, determine the single system of the executive in Russia. Subjects of the Russian Federation are free to regulate their system of executive as well as legislative agencies in accordance with the fundamentals of the constitutional order of the Russian Federation as well as with the above mentioned federal law. Under the Constitution of the Russian Federation, federal executive agencies and executive agencies of subjects of the Russian Federation may agree to transfer to each other a part of their functions unless it contradicts the law. Under section 4 Article 17 of Federal Law “On general principles of the organisation of legislative (representative) and executive agencies of subjects of the Russian Federation” the supreme state official of a subject of the Russian Federation (chairman of the supreme executive agency of the subject) determines the structure of executive agencies of the respective subject in accordance with its constitution or charter. The supreme state official of a subject of the Russian Federation is elected by citizens of the Russian Federation permanently residing on the territory of the respective subject. This post may be held by a citizen of the Russian Federation who is over thirty years old who has no foreign citizenship or residence permit or other document allowing him or her to permanently reside on the territory of a foreign state. 1

Bratanovsky S.N. Op. cit. P. 304. See Federal Law of 6 October 1999 # 184-FZ (as of 28 November 2015) “On general principles of the organisation of legislative (representative) and executive agencies of subjects of the Russian Federation” // Rossiyskaya Gazeta. 1999. 19 October. 2

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The supreme state official of a subject of the Russian Federation may not hold office longer than two terms in a row, whereas a term of office may not exceed five years. The supreme state official of a subject of the Russian Federation: а) represents the subject of the Russian Federation in its relations with federal agencies, state agencies of the subject of the Russian Federation, municipal agencies; represents it in foreign trade. The supreme state official may sign treaties and agreements on behalf of the subject of the Russian Federation; b) promulgates laws, either attesting their promulgation by signing them or declining laws adopted by the legislative (representative) agency of the subject of the Russian Federation; c) forms the supreme executive agency of the subject of the Russian Federation in accordance with the laws of the subject and takes decisions on the dismissal of this agency; d) ensures the coordination between the executive agencies of the subject with other state agencies of the subject; e) exercises a number of other functions. The supreme executive official of a subject of the Russian Federation issues decrees (orders) and instructions which are compulsory on the territory of the respective subject of the Russian Federation. The permanently operating executive agency of a subject of the Russian Federation is the supreme executive agency of the respective subject. The most important area of its activities is the observance of the Constitution of the Russian Federation and other laws on the territory of the Russian Federation. Besides, this agency develops and implements measures to ensure socio-economic development of a subject of the Russian Federation and participates in the implementation of the single state policy in the areas of finance, science, education, healthcare, culture, social security, etc. The supreme executive agency of a subject of the Russian Federation is responsible for: — implementing measures aimed at the realisation and protection of rights and freedoms of man and citizen, protection of property and public order; — developing and submitting to the legislative agency of a subject of the Russian Federation of draft budget of the subject of the Russian Federation and ensures its further observance; — forming the system of the executive of the subject of the Russian Federation; — managing and disposing of the property of the subject of the Russian Federation. 24.4.3. State Civil Servants State service is one of the most important institutes of administrative law and is governed by a number of normative legal acts. The most important

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of them are the Constitution of the Russian Federation and Federal Law of 27 May 2003 “On the system of state service of the Russian Federation”1. Under Article 1 of the said law the state service of the Russian Federation denotes the professional activities of citizens of the Russian Federation for ensuring the execution of competence: — of the Russian Federation; — of federal state agencies; — of subjects of the Russian Federation; — of state agencies of subjects of the Russian Federation; — of persons holding offices specified in the Constitution of the Russian Federation and federal laws which allow the direct execution of competences of federal state agencies; — of persons holding offices specified in constitutions, charters and laws of subjects of the Russian Federation which allow the direct execution of competences of state agencies of subjects of the Russian Federation. In other words, laws of the Russian Federation distinguish between state offices and offices of state service. A person holding state office (state official) directly exercises the competence of a state agency, whereas a person holding an office of state service (state servant) ensures the execution of competence by a person holding state office — state official. E.g. the minister of foreign affairs is a state official and the employees of various departments of the ministry are state servants. The system of state service includes state civil service and military service. Federal Law of 27 July 2004 “On state civil service of the Russian Federation”2 regulates state civil service. Under section 1 Article 3 of this law, state civil service is a type of state service which denotes professional activities of citizens of the Russian Federation (state civil servants) for ensuring the execution of competence of federal state agencies, state agencies of subjects of the Russian Federation, federal state officials and state officials of subjects of the Russian Federation. A civil servant is a citizen of the Russian Federation who has taken obligations to join the civil service, who performs professional duties of a civil servant in accordance with the order on his appointment and his labour contract and which receives remuneration at the expense of the federal budget or budget of a subject of the Russian Federation. Only citizens of the Russian Federation over 18 years old who speak the state language of the Russian Federation and meet the qualification requirements for their office (i.e. requirements to professional education, experience 1 See Federal Law of 27 May 2003 # 58-FZ (as of 13 July 2015) “On the system of state service of the Russian Federation” // Rossiyskaya Gazeta. 2003. 31 May. 2 See Federal Law of 27 July 2004 # 79-FZ (as of 14 December 2015) “On state civil service of the Russian Federation” // Rossiyskaya Gazeta. 2004. 31 July.

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in civil service or in the area of qualification, professional knowledge and skills) may join the civil service. The main elements of the legal status of civil servants include their rights, obligation, restrictions, prohibitions and liability. The main rights of civil servants include the right to: — due working conditions for the performance of his tasks; — access to their office rules, key performance indicators and the information on the requirements for their promotion; — rest, which is ensured by standard working hours, days off and public holidays, as well as an annual vacation; — remuneration and other compensations in accordance with the law and labour contract; — access (under a due procedure) to information and materials necessary for the execution of their office duties; — access (under a due procedure) to state agencies, municipal agencies, social associations and other organisations in connection with the execution of their office duties; — protection of the information on the civil servant; — promotion on a competition basis; — protection of the rights and legitimate interests of a civil servant, including by appeal to court in case of their violation; — state protection of their life and health, as well as life and health of their family members; — state pensions, etc. The main obligations of civil servants include the obligations: — to adhere to the Constitution of the Russian Federation and other laws; — to exercise office duties and execute instructions of their management in accordance with the office rules; — to abide by rights and legitimate interests of citizens and legal entities; — to follow the daily office routine of the respective state agency; — to maintain the level of qualifications necessary for proper execution of the office duties; — not to disclose state secrets or any other secret information protected by federal laws, as well as other information which they have learned in connection with their professional activities; — provide, as prescribed by law, required information on themselves and their family members, etc. Restrictions which apply to civil servants are the circumstances which would prevent a citizen from being admitted to civil service and which would not allow them to continue exercising the duties of a state servant in case such circumstances arise. Such restrictions include: declaration by court of a citizen as not legally capable or as a person with limited active legal capacity; application of penalties which do not allow a citizen to exercise the duties of a state servant,

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as well as a non-cancelled or non-lifted criminal record; refusal to undergo procedures for access to state secrets and other secret information protected by federal laws; an illness preventing the person from being admitted to state service or exercising the respective duties; close relation to another civil servant (parents, spouses, children, brothers, sisters, as well as brothers, sisters, children of spouses and spouses of children) in case of direct subordination or responsibility of one civil servant to the other; cessation of the citizenship of the Russian Federation or adoption of citizenship of another state; loss of confidence by the employer to the civil servant in case of violation of restrictions, prohibitions, conflict of interests requirements or non-performance of obligations set out in anti-corruption laws, etc. Prohibitions are the direct restrictions which apply to a civil servant. E.g., under Article 17 of Federal Law “On state civil service in the Russian Federation”, a state servant may not: 1. hold an office of state service if: а) he is elected or appointed to state office; b) he is elected to a municipal agency; c) he is elected to a paid position in a trade union body; 2. do business in person or through trustees; 3. in cases set out by a federal law — acquire securities; 4. receive remuneration from individuals or legal entities in connection with their duties (gifts, money, loans, services, payment for entertainment, vacation, transport expenses, and other forms of remuneration). 5. leave the borders of the Russian Federation in connection with their duties at the expense of individuals or legal entities; 6. make public statements, speeches or evaluations, including in mass media, in respect of the activities of state agencies, their chiefs, including the decisions of a higher state agency or a state agency where a civil person holds office, unless it is a part of their duties; 7. use their duties in the interests of political parties, other social associations, religious associations or other organisations, as well as publically express their attitude to the said associations or organisations, unless it is a part of their duties; etc. A civil servant, his or her spouse and his minor children, may not open and have accounts, store their money and valuables in foreign banks which are situated outside of the border of the Russian Federation. They may not hold or use foreign financial instruments. For the purposes of strengthening the discipline of state civil servants they may be rewarded (their accomplishments may be officially recognised and they may be paid a bonus); they may be granted an honorable title of the Russian Federation; distinction awards, and they may be subject to disciplinary penalties. E.g., for a disciplinary misdemeanor, i.e. for a culpable non-performance or undue performance of their duties, the following disciplinary penalties may

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be imposed on civil servants: an admonition, a reprimand, a declaration on the state servant’s lack of qualification; dismissal from the state service. The maximum age for holding an office of state service is 60 years. However, a competent agency may prolong this term until the person is 65 years old subject to his or her approval. In some exceptional cases the President of the Russian Federation may take a decision to prolong the term of office of a civil servant who holds a senior position until 70 years. 24.4.4. Military Servicemen The legal status of military servicemen is determined by the Constitution of the Russian Federation and a number of federal laws, the most important of them being Federal Law of 28 March 1998 “On military duty and military service”1 and Federal Law of 27 May 1998 “On the status of military servicemen”2. Article 59 of the Constitution of the Russian Federation provides that the protection of the Fatherland is a duty and obligation of a citizen of Russian Federation, who undergoes military service in accordance with the federal law. However, if military service contradicts the religion or beliefs of a citizen and in some other cases, he has the right to opt for alternative civil service instead. Military service is a special type of federal state service exercised by citizens who have no foreign citizenship. Citizens may undergo military service both in the Military Forces of the Russian Federation, as well as in other types of military forces, military units and bodies. Apart from the Military Forces of the Russian Federation, military servicemen may serve in: — national forces of the Ministry of internal affairs of the Russian Federation; — engineering, technical, construction military forces or lifeguard forces; — the Foreign Intelligence Agency of the Russian Federation; — the Federal Security Service of the Russian Federation; — state security bodies, military divisions of the federal firefighter service and special units created for wartimes. Article 2 of Federal Law “On military duty and military service” allows foreign citizens to become military servicemen in the Military Forces of the Russian Federation or special military units on the basis of a contract. Foreign citizens may hold positions equivalent to the military ranks of soldiers, seamen, sergeants and foremen. Russian citizens may serve as draftees or on the basis of a contract (voluntarily). Before enlisting into the military forces, citizens must undergo a compulsory medical examination. 1 See Federal Law of 28 March 1998 # 53-FZ (as of 5 October 2015) “On military duty and military service” // Rossiyskaya Gazeta. 1998. 2 April. 2 See Federal Law of 27 May 1998 # 76-FZ (as of 13 July 2015) “On the status of military servicemen” // Rossiyskaya Gazeta. 1998. 2 June.

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Male citizens aged from 18 to 27 are eligible for draft. The law provides for some circumstances which free citizens from draft (a PhD degree, or inability to serve in the military due to health problems, etc.) and some circumstances which suspend their eligibility for draft (having two or more children; being elected as a member of a legislative agency of the Russian Federation; full-time studying in a university, etc.). If a citizen wishes to undergo voluntary military service (besides his conscription obligation), he enters into a contract with the Ministry of Defence of the Russian Federation or another federal executive agency which has military units. A contract for enlisted military service may last three, five or ten years or may be equal to the duration of the education in a military college or university plus five years. The parties of such contract are a citizen and the federal executive agency where the citizen will serve. One of the distinguishing characteristics of voluntary enlistment is the fact that foreign citizens may also conclude military contracts, not only Russian citizens1. Article 1 of Federal Law “On the status of military servicemen” defines the status of a military serviceman as a sum total of his rights and freedoms safeguarded by the state, as well as his obligations and liability determined under the legislation. Article 5 of the said federal law provides that military servicemen are protected by the state. Insult of military servicemen, violence or threat of violence, encroachment on their life, health, honour, dignity, dwelling, property, as well as other acts or omissions infringing on their rights in connection with the exercise of their professional duties, give rise to liability as prescribed by law. Military servicemen have the following rights: — freedom of movement and choice of place of residence (this right should be enjoyed on condition that military servicemen must maintain combat readiness of their military units and be able to timely arrive at the place of duty); — free speech, freedom to participate in demonstrations, gatherings, marches and pickets (however, they may not disclose state or military secrets, discuss or criticize the orders of their commander, or participate in strikes); — freedom of thought and religious freedom (although they may not refuse from carrying out their duties on religious grounds or use their powers for the propaganda of any religious beliefs or create religious organisations on the territory of military units); — right to labour, rest, monetary allowance, subsistent and material support, housing, protection of healthcare and medical aid, as well as other rights provided by law. 1

See Bratanovsky S. N. Op. cit. P. 310.

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Duties of a military serviceman may be classified into general duties (being loyal to the oath, devotedly serving the nation, courageously and skillfully protect the Fatherland), as well as professional and special duties, which are envisaged by laws, military service manuals and other normative legal acts. Unless otherwise specified by law, military servicemen also have the same obligations, restrictions and prohibitions which are established for state civil servants (Article 27.1 of Federal Law “On the status of military servicemen”). A military serviceman or a citizen called out for military training, depending on the nature and gravity of the committed offence may be brought to disciplinary, administrative, material, civil or criminal liability.

Test questions and tasks 1. 2. 3. 4. 5.

Why is administrative law often called law of state governance? What are the specifics of the administrative law method? Please provide a classification of administrative legal norms. What does special administrative legal status of a citizen denote? Please describe the structure of executive agencies of subjects of the Russian Federation. 6. What is the difference between state offices and offices of state service? 7. Please list general restrictions and prohibitions which apply to civil servants. 8. Please describe the specifics of the administrative legal status of military servicemen.

Chapter 25. ADMINISTRATIVE COERCION AND ADMINISTRATIVE LIABILITY 25.1. Definition and Types of Administrative Coercion Administrative coercion is one of the types of state coercion designated for ensuring the effectiveness of state governance. Various executive agencies and officials may impose administrative coercion measures for the realisation and optimisation of their executive competence. Therefore, such measures are of authoritative and forcible (coercive) nature. Administrative coercion denotes external psychological and physical influence on the mind and behavior of a person by means of enforcing restrictive and unfavourable consequences of a personal, organisational or material nature. In other words, all measures of administrative coercion are applied to force a person perform certain actions or refrain from them, or obey the established restrictions1. There are some specific characteristics of administrative coercion: 1. it is a type of legal coercion — therefore, administrative coercion measures must be envisaged by the respective normative legal acts; 2. its forms and methods must also be fully in line with the legislation; 3. it may be imposed only by specially authorised agencies and officials; 4. it may be imposed by bodies of executive power and by certain officials individually, without addressing the court, as well as by court bodies empowered with the right of administrative jurisdiction and authority to adjudicate certain administrative offences; 5. it is enforced outside of subordination, meaning that this legal relation arises without one party being subordinate to the other (which distinguishes this measure of influence from disciplinary penalty). The grounds of imposing measures of administrative coercion are the commission of a violation by a person — an administrative offence, as well as arising of certain circumstances which are not connected to the offence (natural calamities, epidemic, and other emergency situations where such measures 1

See Migachev Y.I., Popov L.L., Tikhomirov S.V. Op. cit. P. 190.

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are used in the absence of an offence and of guilt for preventing dangerous consequences). The possibility to apply the measures of administrative coercion in the absence of corpus delicti of an administrative offence is their special feature. Depending on the purposes and the manner of observing public order, there are the following groups of measures of administrative coercion: 1. administrative measures of prevention, which are directed at the prevention of possible unlawful deeds (inspection of a vehicle by a policeman, checking of documents, changing the routes of traffic due to mass events, customs inspection, etc.); 2. measures of administrative constraint, which are directed at taking prompt measures by executive bodies for the elimination of a possible unlawful deed. These measures may be applied to the person directly and may be individual (detention and delivery to the police, etc.), of property nature (forfeiture of firearms, demolition of unauthorised constructions, etc.), of technical nature (suspension of construction works due to infringement of safety technique, etc.), operate as a measure of exclusive imposition (using firearms, water cannons, etc.), and be connected with cancellation or suspension of licenses, etc.; 3. measures of administrative liability, which are closely connected with the measures of administrative constraint and usually follow them (administrative fine, administrative arrest — i.e. the types of administrative punishment); 4. measures of administrative procedural enforcement, which are directed at the efficient functioning of adjudication procedure (administrative detaining, personal inspection, etc.). These measures are also closely connected to the measures of administrative constraint.

25.2. Definition and Types of Administrative Offences Administrative offence is the grounds for administrative liability. Pursuant to section 1 Article 2.1. of the Code of Administrative Offences of the Russian Federation, administrative offence is a wrongful, culpable action (inaction) of a person or an entity which is administratively punishable under the Code of Administrative Offences of the Russian Federation or laws of the subjects of the Russian Federation. Pursuant to section 2 Article 2.1. of the Code of Administrative Offences of the Russian Federation, a legal entity is deemed guilty of committing an administrative offence, if it is shown that it had the opportunity to abide by the rules and norms, for violation of which administrative liability was imposed, but did not take all the measures in its control to observe them. However, imposition of an administrative penalty to a legal entity does not release from administrative liability the guilty person, as well as imposition of criminal or administrative penalty to a person does not release from administrative liability the legal entity.

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Administrative offence possesses the following crucial features (for greater detail on the features of an administrative violation, see para. 9.1 of the textbook); — social danger (it inflicts or may inflict actual damage to protected social relations); — unlawfulness (the deed breaches norms of law and is punishable by administrative liability); — culpability (intentional and negligent); — punishability (an administrative offence is the deed which is punishable by administrative liability). Administrative offence (as any other offence) shall contain corpus delicti — a sum total of elements which makes offence an offence. As noted above, corpus delicti of any violation, including an administrative one, shall contain the object, actus reus, the subject, and mens rea. The object of an administrative violation is represented by protected social relations, encroachment upon which is punishable with administrative liability. Common object of an administrative offence is all the social relations which arise in the sphere of state management and governed by norms of administrative, as well as constitutional, ecologic, customs, labour, land, financial, and other branches and institutions of law. Nevertheless, these relations are only protected by the Code of Administrative Offences of the Russian Federation and laws of subjects of the Russian Federation on administrative offences. Generic object is social relations united by the Code of Administrative Offences of the Russian Federation into certain chapters. The generic object (i.e., social relations in the certain sphere of state management or social life) is the main criterion of division of administrative offences into types. Based on above, there are the following types of administrative offences: — encroaching on rights of citizens (chapter 5 of the Code of Administrative Offences of the Russian Federation); — encroaching on health, sanitary, and epidemiological well-being of people, and social morality (chapter 6 of the Code of Administrative Offences of the Russian Federation); — in the sphere of protection of property (chapter 7 of the Code of Administrative Offences of the Russian Federation); — in the sphere of protection of the environment and its use (chapter 8 of the Code of Administrative Offences of the Russian Federation); — in the sphere of industry, production, and energy (chapter 9 of the Code of Administrative Offences of the Russian Federation); — on transport (chapter 11 of the Code of Administrative Offences of the Russian Federation); — in the sphere of finances, taxes, fees, and securities market (chapter 15 of the Code of Administrative Offences of the Russian Federation) and others. Direct object is the social relations breached as a result of commission of a certain administrative violation and described in a certain article of ad-

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ministrative legislation (e.g., operating a vehicle in breach of rules of setup of license plate, etc.). Actus reus of an administrative violation is the system of features prescribed by norms of administrative law, which characterize the external aspect of the offence committed. Actus reus includes, in particular, the following features: a) unlawful action or inaction and its consequences; b) causality between the committed deed and its consequences. Depending on corpus delicti, violations may be formal and material. In violations with formal corpus delicti, the fact of committing a violation suffices to impose administrative liability, regardless of the fact whether socially dangerous consequences arose or not (operating a vehicle in the state of alcoholic intoxication, etc.). In violations with material corpus delicti, the one may be brought to administrative liability only in case socially dangerous consequences arose (e.g., section 6.1 Article 20.4 of the Code of Administrative Offences of the Russian Federation — violation of fire safety requirements which resulted in the origination of fire and infliction of grave harm to one’s health or death, etc.). Subjects of administrative liability include persons who have reached by the time of commission of an administrative offence the age of sixteen years, as well as legal entities. The Code of Administrative Offences of the Russian Federation identifies special subjects of administrative liability, i.e. the persons whose bringing to administrative liability is connected with certain peculiarities (officials, military servicemen, foreign citizens, stateless persons, etc.). Mens rea of an administrative offence includes the guilt of the wrongdoer, motives of his behavior, and the purpose of the deed committed. Pursuant to Article 2.2 of the Code of Administrative Offences of the Russian Federation, an administrative offence is deemed committed intentionally if the wrongdoer realised the illegal nature of his action (inaction), foresaw its harmful consequences and wished for these consequences to arise or deliberately tolerated them, or treated them indifferently. An administrative offence is deemed committed through negligence if the wrongdoer could foresee the possibility of harmful consequences of his action (inaction), but self-conceitedly hoped to prevent such consequences, or did not foresee their arising, although he should have and could foresee them.

25.3. Administrative Liability and Its Principles Administrative liability is a legally prescribed type of legal liability imposed for the commission of an administrative offence and connected with application of an administrative penalty. Administrative liability is the consequence of an administrative offence (as opposed to preventive measures of administrative enforcement).

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Liability for administrative offences is liability towards the state, which empowers the respective bodies or officials to adjudicate cases on administrative offences and to impose administrative liability (administrative jurisdictional activity). The following are features of administrative liability: — it is imposed only for a committed administrative offence; — it is governed by the norms of administrative law; — it lies in imposition of administrative penalties; — it may be applied by officials of executive bodies of state authority, by collective subjects (commissions on juveniles, administrative commissions, etc.) as well as by judges (courts); — it does not result in criminal record, as opposed to criminal liability; — as opposed to civil liability, it may arise regardless of certain material damage; — as opposed to disciplinary liability, it is imposed on persons who are not subordinate to the subject applying the certain measure of liability. There is a number of principles of administrative liability, some of which were expressly listed in the Code of Administrative Offences of the Russian Federation. They include: — the principle of equality before law (Article 1.4. of the Code of Administrative Offences of the Russian Federation), according to which persons who have committed administrative violations are subject to administrative liability regardless of the sex, race, nationality, language, origin, and other factors; — the benefit of the doubt (Article 1.5 of the Code of Administrative Offences of the Russian Federation), under which a person shall be brought to administrative liability only for those administrative offences, in respect to which his guilt has been established. A person who is on trial for an administrative offence shall be regarded innocent until his guilt is proven in the procedure established by the Code of Administrative Offences of the Russian Federation and determined by a lawful decision of the judge, body, or official who have adjudicated the case; — ensuring lawfulness while taking coercive measures in connection with an administrative offence (Article 1.6 of the Code of Administrative Offences of the Russian Federation), including the express indication that when taking administrative coercive measures, decisions or actions (inactions) abasing human dignity are prohibited; — liability based only on law which operated at the time and location of committing the violation. The legislation on administrative offences consists of the Code of Administrative Offences of the Russian Federation and laws of the subjects of the Russian Federation on administrative violations, adopted in conformity thereto.

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The Code of Administrative Offences of the Russian Federation establishes two grounds of releasing a person from administrative liability: extreme necessity and insanity. Pursuant to Article 2.7 of the Code of Administrative Offences of the Russian Federation infliction of harm to protected interests in the event of extreme necessity, i.e. for the prevention of direct danger to person and their rights, as well as to protected interests of the society and the state is not deemed an administrative offence, if such danger could not be eliminated by other means and if the harm inflicted is less significant than the harm prevented. Article 2.8 of the Code of Administrative Offences of the Russian Federation defines insanity as the state where a person cannot comprehend the actual nature of his actions and their unlawfulness or direct them due to a chronic or temporary mental disorder, imbecility, or other mental disease. Article 2.9 of the Code of Administrative Offences of the Russian Federation also sets forth the possibility of release from administrative liability due to the insignificancy of the administrative offence. In that case, a judge, a body, or an official authorised to adjudicate the case concerning the administrative offence, may (but are not obliged to) release the person who has committed the administrative offence, from administrative liability and limit themselves to a reprimand.

25.4. Administrative Penalty and Its Types Pursuant to Article 3.1 of the Code of Administrative Offences of the Russian Federation, an administrative penalty is a punitive measure for committing an administrative offence and is imposed for the purpose of prevention of new offences either by the offender himself or by other persons. An administrative penalty is a type of administrative coercion and shall be distinguished from above measures of administrative coercion, including measures of prevention, constraint, and administrative procedure. An administrative penalty is imposed on behalf of the state and is always connected with unpleasant restrictions and deprivations for the person who has committed the offence. However, an administrative penalty may not be aimed at the abasement of human dignity of a person who has committed an administrative offence, or at inflicting physical suffering, or at damaging the business reputation of a legal entity. Pursuant to Article 3.2 of the Code of Administrative Offences of the Russian Federation, the following types of administrative penalties may be established and imposed for committing administrative offences: 1) warning, which shall be issued in writing and operates as an official censure of a person or an entity. It may be imposed for an administrative offence made for the first time, if there is no harm caused or there is no threat of such, to the protected interests;

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2) administrative fine, which is a monetary sanction expressed in rubles. For persons, the amount of fine may reach up to five hundred thousand rubles, for entities — sixty million rubles; 3) confiscation of the instrument or object of an administrative offence — compulsory transfer to federal ownership or subject of the Russian Federation of items which are not withdrawn from civil turnover. This penalty shall be imposed by a judge; 4) deprivation of a special right granted to a person (operating a vehicle, going hunting, etc.). The term of deprivation of a special right may not be less than one month or more than three years; 5) administrative arrest, which consists of keeping the offender isolated from society and is established for a term up to fifteen days, and up to thirty days for violating the demands of a state of emergency or in other cases established by law. Administrative arrest shall be imposed by a judge, and in certain cases for certain kinds of administrative offences may not be imposed on several categories of persons (pregnant women, women having children of fourteen years or less, persons who have not attained the age of eighteen years, etc.). 6) administrative deportation from the Russian Federation of a foreign citizen or of a stateless person, which lies in the compulsory and controlled transportation of said citizens and persons across the State Border of the Russian Federation beyond its boundaries; 7) disqualification, i.e. deprivation of a person of their right to occupy positions in the federal state civil service, positions in the state civil service of a subject of the Russian Federation, positions in a municipal service, occupy positions in the executive managerial body of a legal entity, sit on a board of directors (supervisory board), pursue entrepreneurial activity of managing a legal entity, or to pursue other activities expressly stipulated by the Code of Administrative Offences of the Russian Federation. Disqualification shall be imposed by a judge only; 8) administrative suspension of activity, which lies in the temporary termination of the activity of persons engaged in business activity without creating a legal entity, or legal entities, their affiliates, structural subdivisions, as well as of the running of aggregates, objects, buildings and structures, of the performance of individual types of activities (works), rendering services. This type of penalty may only be imposed by a judge for the term up to ninety days, in case the less strict type of administrative penalty may not provide achievement of its aim; 9) compulsory works are the performance by the offender of free, socially useful works in the free time. Compulsory works shall be imposed by a judge for the term from twenty to two hundred hours and shall be performed within four hours per day. The Code of Administrative Offences of the Russian Federation sets forth that this type of punishment may not be imposed to pregnant women, women having infants, disabled person in groups I and II, servicemen, and other categories of citizens;

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10) administrative prohibition to attend the places where official sports competitions are held on the days such competitions are held. It shall be established for the violation of rules of spectators’ conduct during official sports competitions and is imposed for the term from six months up to seven years by judge. It is worth mentioning that in respect of a legal entity, the administrative penalties may be imposed which are listed under numbers 1, 2, 3, and 8. Administrative penalties listed under numbers 3 — 10 are only established by the Code of Administrative Offences of the Russian Federation and may not be established by the legislation of the subjects of the Russian Federation. The types of punishments established by the Code of Administrative Offences of the Russian Federation, may be divided into primary and additional. Primary are the penalties which may not be imposed as an addition to other administrative penalties. Pursuant to section 1 Article 3.3 of the Code of Administrative Offences of the Russian Federation, these include: warning, administrative fine, deprivation of a special right granted to a person (except the right to operate a vehicle of certain type), administrative arrest, disqualification, administrative suspension of activity, and compulsory works. Additional are the penalties which may be imposed separately or as an addition to the primary types of penalty. They include: confiscation of an instrument or an object of the administrative offence, deprivation of a special right to operate a vehicle of certain type, administrative deportation outside of the Russian Federation of a foreign citizen or a stateless person, administrative prohibition to attend the places where official sports competitions are held on the days when such competitions are held (section 2 Article 3.3 of the Code of Administrative Offences of the Russian Federation). When imposing a penalty, the following rule shall be taken into account: only one primary or one primary and additional administrative penalty may be imposed for one administrative offence. Under section 2 Article 4.1 of the Code of Administrative Offences of the Russian Federation, when imposing an administrative penalty on a person, the nature of the offence, the personality of the culprit, his property statues, the circumstances mitigating or aggravating administrative liability shall be taken into account. Nevertheless, imposition of an administrative penalty does not release one from the obligation to perform the duty for the non-performance of which the penalty was imposed. Pursuant to Article 4.2 of the Code of Administrative Offences of the Russian Federation, the following are the circumstances mitigating administrative liability: — repentance of the wrongdoer; — voluntary termination of wrongful behavior by the wrongdoer; — voluntary provision of information about an administrative offence to the competent authority by the wrongdoer; — assistance of the wrongdoer to competent authorities in establishing the circumstances connected with the offence;

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— — — —

prevention by the wrongdoer of harmful consequences of his deed; voluntary compensation or elimination of the harm inflicted; voluntary performance of a prescription to eliminate the offence; commission of an administrative offence in the condition of grave mental disarrangement or in severe personal or family circumstances; — commission of an administrative offence by a minor, a pregnant woman, or a woman having an infant child. The list of these circumstances is open¸ i.e. a judge, a body, or an official who adjudicate the case, may deem other circumstances as mitigating administrative liability, apart from those indicated by the Code of Administrative Offences of the Russian Federation and other legislation. This illustrates the principle of humanism of administrative legislation. The circumstances aggravating administrative liability are as follows: — continuance of unlawful behavior, regardless of the demand of authorised persons to stop it; — repeated commission of an analogous administrative offence, i.e. commission of an administrative offence during the period within which one is deemed brought to administrative liability (within one year after issuance of a decree of imposing an administrative penalty and its serving by the wrongdoer); — involving of a minor into the commission of an administrative offence; — commission of an administrative offence by a group of persons; — commission of an offence in the conditions of a natural calamity or in other contingencies; — commission of an administrative offence in the state of alcoholic intoxication. However, a judge, a body, or an official imposing administrative penalty, depending on the type of the offence committed, are free not to deem such circumstance as aggravating¸ which illustrates the principle of humanism when imposing an administrative penalty.

Test questions and tasks 1. What is administrative coercion and how is it different from administrative punishment? 2. Please describe the classification of measures of administrative coercion. 3. Please define the term “corpus delicti of an administrative offence”. 4. What is the difference between administrative liability and measures of administrative coercion? 5. Please list the crucial features of administrative liability. 6. Please describe the primary types of administrative punishment.

PA RT 6 . BASICS OF CRIMINAL LAW Chapter 26. CRIMINAL LAW AND CRIMINAL LEGISLATION 26.1. Definition, Subject Matter, Method, and Specifics of Criminal Law Criminal law is a separate branch of Russian law which is a sum total of legal norms established by the highest lawmaking authority of the Russian Federation, defining the crime of a deed and its punishability, grounds for criminal liability, types of punishments, as well as common principles and conditions of their application. Criminal law, as well as other branches of law, governs social relations, but in a specific manner. It protects crucial social relations with punitive measures and recognizes as crime any infringement thereupon and prescribing criminal penalties therefor. The subject matter of criminal law is formed by protective criminal law relations, i.e. relations arising at the moment of committing crime between the actor and the state represented by its law enforcement authorities. These relations are bilateral: one party thereto is the state which has established a definite and exhaustive list of criminal acts punishable by criminal penalties, and the other party is the criminal who infringed upon state-protected relations by committing a forbidden act — crime. Some authors reasonably believe that the subject matter of criminal law is also represented with regulatory relations, i.e. relations which are governed by criminal law norms and which entitle citizens to inflict harm in certain circumstances: justifiable defense, the state of extreme necessity, etc. The state encourages its citizens to protect their rights and freedoms, other persons, the interests of the society and the state. Criminal law thereby stimulates the legality of their actions, on the one hand, and forms additional restraining effect with potential criminals on the other hand.

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The method of criminal law, as opposed to other branches of law, is characterised with the predominance of imperative (authoritative, providing no discretion of the actor) principles, prohibitive norms and mechanisms. The essence of the method of criminal law lies in the establishment of a ban to commit certain acts under the threat of imposing a criminal punishment. This method of legal governance is special and is not common to any other branch of Russian law. However, some specialists underline that in some cases the method of criminal law suggests granting certain rights to citizens (e.g., the right to reasoned risk, right to justifiable defense, right to non-abidance by unlawful order or instruction, etc.). Infringement of protected social relations is admissible when realising these rights, and in some cases even homicide. Article 2 of the Criminal Code of the Russian Federation defines the tasks of criminal legislation and, hence, criminal law as a branch of law. These tasks include the protection of rights and freedoms of man and citizen, public order and public security, environment, and the constitutional system of the Russian Federation against criminal encroachment, the maintenance of peace and security of the mankind, as well as prevention of crimes. Obviously, the protective function is prioritised by the lawmaker. For the fulfilment of the said tasks, the Criminal Code of the Russian Federation sets forth the grounds and the principles of criminal liability, defines the criminality of acts which pose a danger to the society and the state, and establishes the types of penalties and other measures for their commission.

26.2. Principles of Criminal Law In governing social relations, criminal law is based on a number of principles united into a single system and interacting with one another. The following are the principles: — principle of legality. This principle means that the criminality of a deed, its punishability, and other legal consequences shall be determined by the Criminal Code of the Russian Federation and by no other acts. Application of criminal law by analogy shall not be allowed; — principle of equality of individuals before the law. Article 4 of the Criminal Code of the Russian Federation prescribes that persons who have committed crimes shall be equal before the law and shall be brought to criminal liability, regardless of their sex, race, nationality, language, origin, property or official status, and other circumstances; — principle of guilt which means that a person shall be brought to criminal liability only for those socially dangerous actions (inaction) and socially dangerous consequences in respect to which his guilt has been established. Objective imputation, i.e. criminal liability for innocent injury, shall not be allowed.

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— principle of justice, i.e. punishment and other legal measures applicable to a person who has committed an offence shall correspond to the character and degree of the social danger of the offence, the circumstances of its commission, and the personality of the guilty party. Pursuant to section 2 Article 6 of the Criminal Code of the Russian Federation, no one may bear double criminal liability for one and the same crime; — principle of humanism. Article 7 of the Criminal Code of the Russian Federation underlines that criminal law of the Russian Federation shall ensure the safety of man, and that punishment and other legal measures applicable to a person who has committed a crime may not pursue the aim of causing physical suffering or debasement of human dignity.

26.3. Criminal Law of Russia and Its Structure Criminal law is a federal normative act adopted by the Federal Assembly of the Russian Federation, signed by the President of the Russian Federation, and published in a certain procedure, establishing the principles, grounds, and conditions of criminal liability or release therefrom and from punishment, as well as defining the list of actions deemed crimes and establishing types of punishment and other criminal legal measures for their commission. The criminal legislation of the Russian Federation consists solely of the Criminal Code of the Russian Federation. In other words, criminal legal norms may not be included into any other normative act (law or regulation), except in the Criminal Code of the Russian Federation. Criminal legislation (the Criminal Code of the Russian Federation) is the only source of criminal law. Pursuant to section 1 Article 1 of the Criminal Code of the Russian Federation, new laws providing for criminal liability are subject to inclusion into the Criminal Code of the Russian Federation. While being the sole source of criminal law, the Criminal Code of the Russian Federation is based on the Constitution of the Russian Federation and the generally recognised principles and norms of international law. The Criminal Code of the Russian Federation consists of two parts — General and Special, which unite parts, chapters, and articles containing criminal law norms. The General Part of the Criminal Code of the Russian Federation consists of six parts, sixteen chapters, and one hundred and seven articles devoted to: a) the criminal legislation and its principles; operation of law in time and space; b) the crime and its types; preliminary criminal activity, joint participation in crime; circumstances excluding the criminality of an act; c) punishment, its types, and its imposition; d) release from criminal liability and punishment; e) criminal liability of minors; f) other measures of criminal law nature.

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The norms of the Common part of the Criminal Code of the Russian Federation are quite specific. They do not consist of the classic elements: the hypothesis, the disposition, and the sanction. Therefore, depending on the content and the purposes of a norm established by this part of the Criminal Code of the Russian Federation, they may be divided into norms-definitions, norms-principles, norms-declarations, norms-rules, obligating and entitling norms. The Special Part of the Criminal Code of the Russian Federation contains the description of certain crimes and establishes punishments imposed onto persons who are guilty in their commission. It consists of six parts, nineteen chapters, and two hundred and fifty-five articles. Norms which are included into the Special Part of the Criminal Code of the Russian Federation, consists of two structural elements: the disposition and the sanction. The former indicates the features of a crime, and the latter — the type, duration or amount of the punishment. Hypothesis is common for all the norms of the Special Part of the Criminal Code of the Russian Federation — it is the commission of a crime described in the Criminal Code of the Russian Federation.

26.4. Operation of Criminal Law in Time and Space Section 1 Article 9 of the Criminal Code of the Russian Federation establishes that the criminality and punishability of an action are defined by criminal legislation which is in operation at the time of commission of that act. The time of a socially dangerous action (inaction) shall be deemed the time of committing a crime, regardless of the time of the onset of consequences. Criminal law is deemed operating if it has been adopted, signed, and published in the set procedure (for greater detail, see para. 14.3 of the textbook). By a general rule, criminal law (as any other law) has no retroactive force. This means that if the new law leads to tightening of liability, the relations which had arisen before the promulgation of that law shall be governed by the old, abrogated law. In other words, a criminal law that establishes the criminality of a deed and increases punishment or in any other way worsens the position of a person shall have no retroactive force. This epitomizes the principle according to which the criminality and punishability of a deed shall be governed by a law operating at the time of its commission. At the same time, Article 10 of the Criminal Code of the Russian Federation establishes an exception from this rule and sets forth that criminal law which removes the criminality of a deed, mitigates punishment or in any other way improves the position of a person who has committed a crime shall have retroactive force, i.e. shall be applicable to persons who have committed the respective deeds before the entry of such law into force, including persons who are serving or have served a sentence but have a criminal record.

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Thus, if a criminal law mitigates punishment for a deed which the person is serving, the punishment shall be shortened in a manner prescribed by the new criminal law. Operation of a criminal law is limited with a certain territory. Therefore, the primary principle of operation of criminal law in space is the principle of territoriality. Pursuant to section 1 Article 11 of the Criminal Code of the Russian Federation, a person who has committed a crime on the territory of the Russian Federation shall be brought to liability under the Criminal Code of the Russian Federation. Also, those persons shall be brought to liability under the current Russian criminal legislation who have committed crimes within the limits of the territorial sea or the airspace, the continental shelf, and in the exclusive economic zone of the Russian Federation, on a warship or a military aircraft of the Russian Federation regardless of the place of their location. A person who has committed a crime on a craft registered in a port of the Russian Federation and situated in the open sea or in the airspace outside of the confines of the Russian Federation shall be brought to criminal liability under the Criminal Code of the Russian Federation, unless otherwise stipulated by an international agreement of the Russian Federation. The issue of criminal liability of diplomatic representatives of foreign states and of other citizens enjoying immunity, should such persons commit crimes at the territory of the Russian Federation, shall be settled pursuant to norms of international law which by no means suggests their impunity. The territorial principle of operation of criminal law in space is supplemented with the principle of citizenship (section 1 Article 12 of the Criminal Code of the Russian Federation), whereby citizens of the Russian Federation and stateless persons permanently residing in the Russian Federation who have committed a crime outside of the Russian Federation shall be subject to criminal liability in accordance with the Criminal Code of the Russian Federation, unless a decision of a foreign state’s court is in place concerning this crime in respect of these persons. Foreign nationals and stateless persons who do not reside permanently in the Russian Federation and who have committed a crime outside the boundaries of the Russian Federation shall be brought to criminal liability under the Criminal Code of the Russian Federation only where these crimes run against the interests of the Russian Federation or a citizen of the Russian Federation or a stateless person permanently residing in the Russian Federation. Pursuant to section 1 Article 13 of the Criminal Code of the Russian Federation, citizens of the Russian Federation who have committed crimes in foreign states shall not be subject to extradition to these states. However, foreign nationals and stateless persons who have committed offences outside the boundaries of the Russian Federation and who are to be found at the territory of the Russian Federation may be extradited to a foreign state for bringing to criminal liability or to serve their sentences in conformity

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with international agreements of the Russian Federation. The existence of a respective bilateral agreement is a condition precedent for extradition of a criminal. However, the right to asylum constitutes an exception to the above rule. This right suggests prohibition to extradite persons from the Russian Federation who are prosecuted for political beliefs.

Test questions and tasks: 1. 2. 3. 4.

What is the special character of criminal law as a branch of law? Please list the main features of Russian criminal law. What is the criminal law of the Russian Federation? Please describe the operation of criminal law in time and in space.

Chapter 27. CRIME AND CRIMINAL LIABILITY 27.1. Definition of Crime, Its Features, and Categories Section 1 Article 14 of the Criminal Code of the Russian Federation defines a crime as a socially dangerous culpable act prohibited by the Criminal Code of the Russian Federation under a threat of punishment. Section 2 Article 14 underlines that the commission of an act (inaction), although formally containing the indicia of any act provided for by the Criminal Code of the Russian Federation, but which, due to insignificance does not represent social danger shall not be deemed a crime. In connection with the above, the following are main features of a crime: 1) social danger; 2) criminal prohibition; 3) culpability; 4) punishability. A crime is a deed (action or inaction), i.e. an external act of behavior committed under the control of consciousness and will (conscious deed). Thoughts, psychological processes, beliefs, and judgments per se do not constitute crime, however negative they are from the standpoint of law. A person’s inner world is of no interest for criminal law, although certain mental activity may definitely motivate one to commit unlawful actions. In other words, thoughts cannot be criminal, unless they are complemented with certain actions (statements, threats, incitement of religious intolerance, etc.). Social danger means that the deed inflicts or threatens to inflict damage to protected social relations. Some deeds become socially dangerous from the moment of commission of the action or inaction, regardless of the fact whether they resulted in harmful consequences (sale of liquor to minors — Article 151.1 of the Criminal Code of the Russian Federation, disclosure of adoption secret — Article 155 of the Criminal Code of the Russian Federation), others become socially dangerous in case of arising of harmful consequences (infringement of road traffic rules which resulted in careless infliction of grave harm to health of another — Article 264 of the Criminal Code of the Russian Federation).

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The nature of social danger of a crime is defined by social relations which are threatened, i.e. the object of the crime. Thus, encroachments upon human life differ in their social danger from crimes in the cyber security sphere. The degree of social danger is the quantification of comparative danger of deeds. It is defined by the graveness of consequences, the manner of commission of a crime, and by other circumstances (intended infliction of grave bodily harm is of higher degree of social danger than infliction of medium bodily harm; commission of a crime by an organised group or with severe cruelty is of higher degree of social danger than the same committed by a person as a result of instant intent, etc.). Criminal prohibition means that a person who has committed a crime has breached a certain criminal law ban. If a person commits an action which is not deemed a crime, it may not be considered a crime even due to a lacuna in the legislation. In other words, there is no crime where there is no indication in the Criminal Code of the Russian Federation. A person is deemed having committed a crime only as a result of breaching a norm of the Criminal Code of the Russian Federation. Breaching of a norm which is contained in any other act is deemed a misdemeanor (for greater detail, see para. 9.1 of the textbook). Mens rea in the criminal sense suggests certain psychological attitude to one’s behavior and its consequences. Guilt may exist in the forms of intent (direct and indirect) and negligent culpability (reckless misconduct and criminal negligence). Objective imputation, i.e. imposition of criminal liability without guilt is prohibited under Russian criminal legislation. Punishability shall be construed as the possibility of imposing a punishment for each crime and as the threat of punishment for breaching a criminal law norm. Only those deeds shall be deemed crimes which the lawmaker believes should be punishable with a criminal punishment. Low significance of a deed, as underlined by the lawmaker shall cancel the criminality of a deed, since a crime is a deed of certain social danger. This means that in the event of merely formal qualification of a deed as a crime together with the lack of actual possibility to harm the protected social relations means that the deed shall not be deemed a crime due to its lack of social danger (e.g., one steals a photo of his beloved one from her apartment as a souvenir; one picks a couple of apples from a neighbor’s tree, etc.). Depending on the nature and the degree of social danger, all crimes are divided into certain categories: crimes of little gravity, crimes of medium gravity, grave crimes, and particularly grave crimes. Pursuant to Article 15 of the Criminal Code of the Russian Federation, crimes of little gravity are intentional and negligent acts, for the commission of which the maximum penalty stipulated in the Criminal Code of the Russian Federation does not exceed two years deprivation of liberty.

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Crimes of medium gravity are intentional offences, for the commission of which the maximum penalty stipulated in the Criminal Code of the Russian Federation does not exceed three years deprivation of liberty. Grave crimes are intentional acts, for the commission of which the maximum penalty stipulated in the Criminal Code of the Russian Federation, does not exceed ten years deprivation of liberty. Particularly grave crimes are intentional acts, for the commission of which the Criminal Code of the Russian Federation establishes a penalty in the form of deprivation of liberty for a term exceeding ten years or a more severe punishment.

27.2. Multiplicity of Crimes Multiplicity of crimes is the commission of two or more crimes, each of which is deemed a separate crime. The features of multiplicity of crimes include the following: a) each of the crimes committed shall contain their own corpus delicti; b) each of the crimes shall lead to legal consequences. The term multiplicity of crimes shall be distinguished from single crime, which may be simple or complex. Single crime is simple where it encroaches on one object, is committed as one deed, results in one consequence, and has one form of guilt (e.g., merder — Article 105 of the Criminal Code of the Russian Federation). A single crime may be complex. The types of complex single crimes include: 1. extended crime, which is built from a number of identical criminal acts which are united by single intent and are directed at single aim (e.g., larceny of spare parts from a factory for a month in order to assemble a single mechanism — an automobile). 2. continuing crime — an action or inaction with continuing non-performance of duties which the culprit was obliged by law to perform (e.g., illegal storage of a weapon, escape from penitentiary, etc.); 3. compound crime — a crime uniting two or several actions each of which constitutes a separate crime under criminal legislation (e.g., banditry is a single crime but also unites open larceny of other’s property (which is a separate crime) and infliction of harm (or threat) to the injured person (which is also punishable by the Criminal Code of the Russian Federation); 4. crime with alternatively indicated deeds, where each of actions prescribed by the disposition suffices (e.g., Article 221 of the Criminal Code of the Russian Federation provides for liability for larceny or extortion of nuclear materials; Article 222 of the Criminal Code of the Russian Federation provides for liability for illegal acquisition or transfer, or sale, or storage, or transportation, or bearing of weapons); 5. crime with additional grave circumstances, where such grave circumstance is envisaged by a respective rule (infliction of grave harm to health, which resulted in the death of the aggrieved person).

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The Criminal Code establishes two types of multiplicity of crimes: cumulative crimes and recidivism. Pursuant to Article 17 of the Criminal Code of the Russian Federation, cumulative crimes are two or more crimes for neither of which one has been convicted, except for the cases where commission of two or more crimes is envisaged by the Criminal Code of the Russian Federation as a circumstance stiffening the punishment. If crimes are cumulative, the convict shall be liable under each crime separately. Cumulative crimes are also recognised as one action (inaction) combining the features of crimes described by two or more articles of the Criminal Code of the Russian Federation (e.g., by shooting one kills a man and inflicts harm to another man’s health). The essence of recidivism as a type of multiplicity of crimes lies in the fact that a person who has a record of conviction for an intentional harm commits another intentional crime. Recidivism may not be constituted by repetition of reckless crimes. Pursuant to section 5 Article 18 of the Criminal Code of the Russian Federation, recidivism of crimes leads to stricter punishment on the basis of, and within the limits envisaged by the Criminal Code of the Russian Federation.

27.3. Criminal Liability Criminal liability is legally established authoritative influence of the state upon a person, imposed by a convictive decision of a court which has entered into legal force. Criminal liability has a number of material features. 1. It is established exclusively by the norms of the Criminal Code of the Russian Federation. Section 1 Article 1 provides that any norms establishing criminal liability shall only be contained in the Criminal Code of the Russian Federation. 2. Criminal liability is always connected to state coercion, which is its content. State coercion is effected through authorised bodies. 3. Criminal liability may only be imposed for a committed crime. If one has not committed a crime, he will not enter the criminal law sphere. In particular, criminal liability is not established for innocent infliction of harm (Article 28 of the Criminal Code of the Russian Federation), justifiable defense (Article 37 of the Criminal Code of the Russian Federation), etc. 4. Criminal liability is connected to certain deprivations which the convict shall be subjected to. These deprivations are the state’s reaction to the harm inflicted upon the man, the society, and the state itself. These deprivations or negative consequences may be of the following nature: a) personal nature (deprivation of liberty, arrest, compulsory works, etc.); b) property nature (fine);

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c) moral nature (the fact of criminal record and conviction; emotional stress connected to certain types of punishment, etc.). Criminal liability and criminal punishment are two different terms distinguished by the Criminal Code of the Russian Federation (section 2 Article 2 provides that for the commission of crimes the Criminal Code of the Russian Federation establishes types of punishment and other measures of criminal law nature). Thus, the term criminal liability is wider than punishment, and criminal liability is possible without the punishment (Article 90, 92 of the Criminal Code of the Russian Federation). Criminal liability without imposition of a punishment lies in the fact of conviction. However, imposition of punishment is always preceded by bringing to criminal liability. Pursuant to the Criminal Code of the Russian Federation, criminal liability is imposed in the following forms: — conviction without imposing a punishment (Article 92 of the Criminal Code of the Russian Federation); — conviction and imposing a punishment without its actual execution (Article 73 of the Criminal Code of the Russian Federation); — conviction, imposing a punishment, and its actual execution. Article 8 of the Criminal Code of the Russian Federation establishes that the only grounds for criminal liability is the commission of a deed containing all the features of a crime provided for by the Criminal Code of the Russian Federation.

27.4. Corpus Delicti Corpus delicti is a sum total of features provided for by the Criminal Code of the Russian Federation, with the help of which a socially dangerous deed is characterised as a crime (оn corpus delicti of a violation, see para. 9.1 of the textbook). A feature of corpus delicti is a feature of a socially dangerous deed which is established by the criminal legislation and is material, i.e. inherent to all the deeds of such kind and distinguishing this criminal deed from other criminal encroachments. All of the features of corpus delicti are united into four elements: 1) object of a crime; 2) actus reus; 3) offender; 4) mens rea. The elements of corpus delicti are interconnected, they are organically united and form the grounds of criminal liability. Corpus delicti may be distinguished by various criteria. Depending on the degree of social danger, corpus delicti may be: a) simple (main); b) in aggravating circumstances (e.g. commission of a crime for reasons of religious hate); c) in mitigating circumstances (pregnancy, etc.).

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Depending on the manner of describing actus reus (i.e., on the manner of describing the criminal deed), corpus delicti may be: — material (the actus reus includes not only the act itself, but also the socially dangerous consequences. Such crime is deemed completed at the moment of arising of these consequences, e.g. homicide, theft, fraud, etc.); — formal (the actus reus describes only the act itself, without indicating the socially dangerous consequences. Such crime is deemed completed at the moment of commission of the described act, regardless of arising of socially harmful consequences — slander/libel, unlawful deprivation of liberty, etc.); — reduced (for a crime to be deemed completed, it is not required for the socially harmful consequences to arise, as well as for the deed to be completed. Such crimes are deemed completed at the earliest stage of criminal deeds — robbery, banditry, organisation of criminal network, etc.). Below is the description of the elements of corpus delicti. Object of a crime is the protected social relations which are harmed or threatened by the crime. Obviously, not all social relations are protected by criminal law, but only the crucial ones. A great amount of social relations is protected by other branches of law. Social relations protected by criminal law are not static. A part of newly arising social relations is recognised by the state as extremely significant and are included into the object of the crime (criminalisation of deeds), another part loses their significance for the society, and the state ceases to protect them with criminal law measures (decriminalisation of deeds). All social relations which are protected by state through criminal law represent the general object of crime. Generic object of crime is a group of uniform social relations protected by a sum total of interconnected criminal law norms from criminal encroachments. In other words, within a generic object all crimes are gathered that encroach on one and the same group of social relations. Depending on the generic object of crime, the Special Part of the Criminal Code of the Russian Federation distinguishes the following parts: part 7 — “Crimes against human”, part 8 — “Crimes in the economic sphere”, part 9 — “Crimes against social security and social order”, part 10 — “Crimes against state authority”, part 11 — “Crimes against military service”, part 12 — “Crimes against peace and the security of the humanity”. Specific object is the part of the generic object uniting smaller groups of protected social relations. Specific object of a crime provides foundation for distinguishing chapters in the Special Part of the Criminal Code of the Russian Federation. Part 7 — “Crimes against human” includes chapter 16 — “Crimes against life and health”, chapter 17 — “Crimes against freedom, honor, and

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dignity”, and chapter 18 — “Crimes against sexual immunity and sexual freedom”, etc. Direct object is the part of the specific object representing a certain social relation which is encroached on by the criminal deed. The direct object corresponds to the title of an article of the Special Part of the Criminal Code of the Russian Federation (Article 105 — “Murder”, Article 110 “Incitement to suicide”, Article 111 “Intentional infliction of grave harm to health”, etc.). The target of crime is the material item or intellectual valuables which are impacted by the criminal and thereby protected social relations are infringed (property, weapons, etc.). While the object of crime is a social relation, the target of crime is a tangible item or intellectual valuables. While the object of crime is always infringed upon during the crime, the target of crime may remain unharmed (e.g., during robbery its target — a valuable painting — may remain undamaged). Actus reus is a sum total of features characterising the external act of a certain socially harmful encroachment upon protected social relations. Scholars reasonably note that a crime cannot exist outside of reality. A certain crime is always committed by certain means, in a certain way, at certain time and in certain location. At the moment of its commission, there are certain circumstances. Thus, actus reus includes all of these features. Actus reus includes a number of legally significant features which are divided into obligatory and optional. The obligatory features are those which are inherent to any corpus delicti. However, depending on the type of corpus delicti (material or formal), the number of obligatory features varies. In crimes with material corpus delicti, the obligatory features are: 1. the socially harmful deed (action or inaction); 2. the socially harmful consequence; 3. the causality between the deed and the circumstances. In crimes with formal corpus delicti (e.g., libel/slander), the obligatory feature of actus reus is the socially harmful deed only. The optional features of actus reus, regardless of the type of actus reus are: manner, place, time, instrument, and setting of a crime. Mens rea is a sum total of features characterising the psychological activity of a criminal at the time of commission of the crime. Mens rea characterizes the psychological, emotional attitude of a criminal to his crime and its consequences, and lies in guilt, motive, and aim. Pursuant to section 1 Article 24 of the Criminal Code of the Russian Federation, a person who has committed an act intentionally or negligently shall be deemed to be guilty of crime. For greater detail on these forms of guilt, see para. 9.1 of the textbook. The motive and the aim are the optional features of mens rea of a crime (their existence shall be only proven if directly required by the norm of criminal law), but they help understand the criminal’s intent in greater detail.

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Pursuant to Article 19 of the Criminal Code of the Russian Federation, a subject of crime is a sane person who has reached the statutory age envisaged by the Criminal Code of the Russian Federation. Thus, criminal liability shall be imposed on condition that the crime is committed by: 1) an individual; 2) who has reаched the statutory age; and 3) is sane. These features characterize any subject of any crime, i.e. they are obligatory. As a general rule, a person who before the commission of a crime has reached the age of sixteen years (section 1 Article 20 of the Criminal Code of the Russian Federation) may be subject to criminal liability. Nevertheless, people who before the commission of a crime have reached the age of fourteen years shall be subject to criminal liability for murder, intentional infliction of grave bodily injury, intentional infliction of medium bodily injury, kidnapping, rape, and a number of other crimes which are highly socially dangerous. A number of rules of the Criminal Code of the Russian Federation sets forth higher age threshold of liability. For instance, subjects of encroachments on minors, on their normal moral and physical development, sexual immunity (Articles 134, 135, 150, and 151 of the Criminal Code of the Russian Federation) may be persons who have reached eighteen years. Article 21 of the Criminal Code of the Russian Federation establishes that a person who at the time of committing a socially dangerous act was insane, i.e. unable to understand the actual nature or social danger of his actions (inaction) or to govern them shall not be subject to criminal liability. Compulsory medical treatment may be imposed by a court on that person. However, a sane person who at the time of commission of a crime due to mental derangement was unable to understand the actual nature or social danger of his actions (inaction) or to govern them, shall be subject to criminal liability. Alcoholic or other intoxication shall not release from criminal liability. Some articles of the Special Part of the Criminal Code of the Russian Federation establish criminal liability for certain crimes, a subject wherein can only be represented by a person possessing additional features. This means a special subject of crime is in action. For instance, subjects of a number of crimes can be persons doing certain kinds of business: officials (registration of illegal transactions with real property, abuse of authority), managers of organisations (non-payment of wages, pension, allowances, and other payments), or servicemen (failure to obey an order), etc. The second group of special subjects may be connected with the gender of the criminal (rape may only be committed by a man), existence of a venereal disease (communicating venereal disease), etc.

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The third group of special subjects is connected to the convict’s relation to the aggrieved party: parent, teacher, person vested with responsibility to foster a minor (involving a minor into criminal activity, etc.).

27.5. Stages of Committing a Crime The stages of committing a crime are certain stages of development of criminal activity, which, based on Article 29 of the Criminal Code of the Russian Federation, may be illustrated as follows: — preparation for commission of a crime; — attempt to commit a crime; — completed crime. Preparation for commission of a crime is deemed unfinished crime by the Criminal Code of the Russian Federation. Pursuant to section 1 Article 29 of the Criminal Code of the Russian Federation, a crime shall be deemed to be complete if the deed committed by the person contains all the elements of corpus delicti envisaged by the Criminal Code of the Russian Federation. Preparation for a crime includes looking for, manufacturing, or adapting by a person of means or instruments for committing a crime, finding of accomplices for a crime, conspiracy to commit a crime, or any other intentional creation of conditions to commit a crime, if the crime has not been finished owing to circumstances outside of the criminal’s control (section 1 Article 30 of the Criminal Code of the Russian Federation). Preparation for a crime is always effected with direct intent, since the convict realises that he is preparing for a crime and wishes to create proper conditions for successful accomplishment of a crime. The main feature of preparation for a crime is that the convict’s actions are not finished due to circumstances outside of his control. Criminal legislation punishes preparation only for grave and particularly grave crimes. Attempted crime is intentional actions (inaction) of a person, directed towards the commission of a crime, if a crime has not been finished owing to circumstances outside of criminal’s control (section 3 Article 30 of the Criminal Code of the Russian Federation). As opposed to preparation for a crime, with an attempted crime the subject encroaches on protected social relations, i.e. attempted crime is the beginning of commission of the crime. Article 31 of the Criminal Code of the Russian Federation provides for the term voluntary refusal to commit a crime, which is the termination by the criminal of preparations for a crime or the termination of actions (inaction) directed at the commission of the crime, if the person was aware of the possibility of carrying out the crime Generally, one shall not be subject to criminal liability for a crime if he voluntarily refused to finish a crime. However, that person shall be

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subject to criminal liability if the deed carried out (prior to the moment of refusal from commission of crime) already constitutes another corpus delicti of a crime.

27.6. Complicity in a Crime Article 32 of the Criminal Code of the Russian Federation defines that the intentional joint participation of two or more persons in the commission of a crime is deemed complicity in crime. Complicity is characterised with objective and subjective features. The objective features include: 1. participation in a crime of two or more persons (at least two persons who qualify as subjects of crime should take part in it); 2. joint nature of their activity. It does not mean that the accomplices perform identical actions and that their input into the crime is equal. It means the joint nature of their effort for the achievement of single result and the causality between the criminals’ interaction and harm inflicted. The subjective features include: 1. intentional participation in committing a crime — the will to commit a crime together. One realizes the social danger of his deed and the fact that he is not acting alone; 2. participation in committing an intentional crime (complicity is not possible in committing a negligent crime). Article 33 of the Criminal Code of the Russian Federation distinguishes the following types of accomplices: 1. perpetrator — a person who has actually committed a crime or who has directly participated in its commission together with other persons (co-perpetrators). A person who has committed a crime by using other persons who are not subject to criminal liability by reason of age, insanity, or other circumstances shall also be deemed perpetrator; 2. organiser — a person who has organised the commission of a crime or has directed its commission, as well as a person who has created an organised group or a criminal community (criminal organisation) or has guided them; 3. instigator — a person who has abetted another person in committing a crime by persuasion, bribery, threat, or by any other method; 4. accessory — a person who has assisted in the commission of a crime by advice, instructions, information, means and instruments of commission of a crime or by removing obstacles thereto. An accessory is also a person who has promised beforehand to conceal the criminal, means and instruments of commission of the crime, traces of the crime or objects obtained criminally, as well as a person who has promised beforehand to acquire such objects. Complicity in crime may be simple (two or more co-perpetrators participate in a crime) and complex (apart from the perpetrator, at least one organiser, instigator, or accessory take part in the crime).

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Depending on the degree of coherence of the accomplices’ actions, Article 35 of the Criminal Code of the Russian Federation distinguishes four forms of complicity: 1) group of persons without previous concert — two or more perpetrators have jointly participated in the commission of the crime without previous concert. Their criminal bond arises spontaneously at the moment of the commission of the crime; 2) group of persons by previous concert — the criminals have reached an agreement on the joint commission of a crime before the start of its commission. 3) organised group — the crime was committed by a stable group persons who had united for the commission of one or more crimes. As opposed to a group of persons by previous concert, the organised group is characterised with the existence of an organiser (director) and an elaborated plan of joint criminal activity, distribution of functions between the members thereof at the stage of preparation for a crime; 4) criminal community (criminal organisation) — the crime is committed by a structured organised group or by a union of organised groups acting under single management. The members of a criminal community unite for the join commission of one or several grave or particularly grave crimes and for receiving direct or indirect financial or other material benefit. The grounds for criminal liability of all the accomplices lie in the commission of a deed containing all elements of corpus delicti of a crime (Article 8 of the Criminal Code of the Russian Federation). Pursuant to section 1 Article 34 of the Criminal Code of the Russian Federation, liability of accomplices of a crime is determined by the nature and the degree of their actual participation in the commission of the crime. Co-perpetrators are liable under an article of the Special Part of the Criminal Code of the Russian Federation for a crime committed jointly. Criminal liability of an organiser, instigator, and an accessory arises under an article which provides for punishment for a committed crime referring to Article 33 of the Criminal Code of the Russian Federation, which specifies each accomplice’s role in the commission of the crime and thereby individualizes the punishment. Section 5 Article 34 of the Criminal Code of the Russian Federation declares that if the perpetrator of a crime fails to carry out the crime owing to circumstances beyond his control, the rest of accomplices shall bear criminal liability for preparation for a crime or for attempted crime. A person who has not managed to abet other persons in committing a crime owing to circumstances beyond his control, shall also bear criminal liability for preparation for a crime. Article 36 of the Criminal Code of the Russian Federation provides for an excess of the perpetrator, which means the commission of a crime that is not embraced by the intent of other accomplices (the organiser of the crime

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performs actions which had not previously been planned or stipulated). For instance, the accomplices had agreed to commit robbery, and the organiser at the victim’s resistance committed murder. Other accomplices to a crime shall not be subject to criminal liability for the excess of the perpetrator.

27.7. Circumstances Excluding the Criminality of a Deed Chapter 8 of the Criminal Code of the Russian Federation provides for a number of circumstances excluding the criminality of a deed. These circumstances are special situations where one’s behavior, even though it may be similar to a crime, is deemed lawful and even socially beneficial and reasonable, since it is aimed at the elimination of a threat to protected interests of human, society, and the state. Such circumstances include: 1. justifiable defense, which is an integral, natural human right. Pursuant to section 1 Article 37 of the Criminal Code of the Russian Federation, infliction of harm in the state of justifiable defense against an attacking person, i.e. in case of protection of the person and the rights of the defending party or other persons, protected interests of the society or the state against a socially dangerous attack if such an attack involved violence threatening the life of the defending party or another person or an immediate threat of use of such violence. Based on the above, one may distinguish the following features of the legality of justifiable defense: — encroachment on protected interests should be socially dangerous; — that encroachment should have started or there should be an immediate threat thereof (meaning that the encroachment or a threat thereof should exist objectively and not in the defending party’s imagination or as a result of his mistaken perception of the situation); — only those interests may be defended which are protected by the criminal laws; — the harm should be inflicted upon the wrongdoer and not to any other persons, otherwise the harm inflicted to other persons shall not be deemed justifiable defense; — excessive justifiable defense is prohibited. This means that the harm inflicted should not be excessive or obviously disproportionate to the nature and the degree of social danger of the encroachment. However, actions of the defending party shall not be deemed as surpassing the limits of justifiable defense if the defense was against violence which posed a danger to the life of the defending party or other party, or an immediate threat thereof. In these cases, even infliction of death to the wrongdoer is lawful and there is no question as to the surpass of justifiable defense. Surpass of justifiable defense is only possible when an attack does not involve

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violence threatening the life of the defending party or another person, or an immediate threat thereof (section 2 Article 3 of the Criminal Code of the Russian Federation). Pursuant to section 2.1 Article 37 of the Criminal Code of the Russian Federation, actions of a defending party shall not be deemed as surpassing the limits of justifiable defense, if the defending party could not fairly assess the degree and nature of the threat posed by the unexpected attack. The right to justifiable defense is vested in all persons, regardless of their professional or other particular qualification or position, as well as of the possibility to avoid a socially dangerous attack or to address other persons or authorities for help; 2. infliction of harm during detention of a person who has committed a crime. Section 1 Article 38 of the Criminal Code of the Russian Federation sets forth that the infliction of harm on a person who has committed a crime during his detention or during his delivery to the authorities, or in thwarting the possibility of his commission of further offenses shall not be deemed a crime, unless it was possible to detain such person and there was an excess of the measures taken for this detention. A number of conditions is required for this infliction of harm to be lawful: — the legal grounds for detention is the obvious fact of commission of a crime (not an administrative offense or another violation); — the criminal attempts to avoid liability, escape and avoid detention; — the infliction of harm is only allowed if it is impossible to detain the criminal using other, non-violent means; — the harm inflicted to the criminal shall correspond to the nature and the degree of social danger of the crime committed, the personality of the detained person, and the circumstances of detention; 3. extreme necessity. Section 1 Article 39 of the Criminal Code of the Russian Federation declares that the harming of legally protected interests in a state of extreme necessity, i.e. for the purpose of removing a direct danger to a person or his rights, to the rights of other persons, or to legally protected interests of the society and the state shall not be deemed a crime if this danger could not be removed by other means and if there was no exceeding the limits of extreme necessity. In other words, extreme necessity is infliction of harm for prevention of bigger harm. The infliction of harm that clearly neither corresponds to the nature and the degree of the danger, nor to the circumstances under which the danger was removed when equal or more considerable harm was caused to said interests than the harm averted, shall be deemed exceeding extreme necessity. Such excess shall lead to criminal liability only in cases of intended infliction of harm. Extreme necessity shall be distinguished from justifiable defense. While the grounds for extreme necessity is the objectively existing danger, the grounds for

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justifiable defense is the socially dangerous encroachment; while in the state of extreme necessity harm is inflicted to third parties, in the state of justifiable defense it is inflicted to the wrongdoer; while with extreme necessity harm inflicted should be less than harm prevented, with justifiable defense harm inflicted may be equal or even bigger than harm prevented, and in circumstances threatening life, harm inflicted is unlimited. 4. physical or mental coercion. Pursuant to section 1 Article 40 of the Criminal Code of the Russian Federation, the infliction of harm to legally protected interests as a result of physical coercion shall not be a crime, if, as a result of such coercion the offender could not control his actions (inaction). In the case considered the coercion hinders the execution of man’s free will and forces him to do something he does not wish to do. Section 2 Article 40 of the Criminal Code of the Russian Federation deals with the physical or mental coercion (threat, hypnosis, narcotics) due to which one was still able to control his actions, but with substantial obstacles thereto. The infliction of harm in these conditions is equal to actions in the state of extreme necessity; 5. justifiable risk. Due to the requirements of section 1 Article 41 of the Criminal Code of the Russian Federation, no criminal liability shall ensue for infliction of harm to legally protected interests provided that the risk is justified as attaining a socially useful goal. Risk is deemed justified if the said goal could not have been attained through action (inaction) not associated with risk and provided that the person that took the risk has undertaken all measures sufficient to prevent harm to legally protected interests. The lawmaker does not deem the risk justified if it was known to involve a threat to the life of many persons, or a hazard of environmental or societal disaster; 6. execution of an order or instruction. Pursuant to Article 42 of the Criminal Code of the Russian Federation, infliction of harm to legally protected interests shall not be qualified as a crime if it was caused by a person acting in execution of an order or instruction binding on him. Criminal liability for infliction of such harm shall be borne by a person who gave the illegal order or instruction. However, a person who committed intentional crime in execution of an order or instruction known to be illegal shall be liable under usual terms. Criminal liability for an intentional crime in execution of an order or instruction known to be illegal shall be borne by the person who gave such illegal order and by the perpetrator. In these cases, complicity in crime is in place: the perpetrator of the order is deemed the perpetrator of the crime, and the person who gave such order is deemed the organiser or the instigator of the crime. The non-performance of an order or instruction known to be illegal shall preclude criminal liability.

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Test questions and tasks 1. What is social danger and is it a feature of a crime? 2. What is the difference between an extended and continuous crime? 3. Please describe the correlation between the terms “criminal liability” and “punishment”. 4. What is the difference between the formal and reduced corpus delicti? 5. What is the difference between the preparation for a crime and attempted crime? 6. Please list the types of accomplices in a crime. 7. Please describe the notion of circumstances excluding the criminality of a deed.

Chapter 28. CRIMINAL PUNISHMENT 28.1. The Definition, Purposes, and Types of Punishment Punishment is the main, but not the only measure of realisation of criminal liability and is a measure of state compulsion assigned by court’s judgment. Punishment shall be applied to a person who has been found guilty of the commission of a crime (convict) and consists of the deprivation or restriction of the rights of this person (section 1 Article 43 of the Criminal Code of the Russian Federation). A criminal punishment has a number of specific features. 1. Criminal punishment is one of the severest forms of state compulsion. The object of its influence lies in the crucial and the most valuable virtues of a person and consists of the deprivation of the convict of certain rights and freedoms. 2. Criminal punishment is assigned for a committed crime to a certain person and is strictly individual. It does not apply to persons who have nothing to do with the commission of a crime. 3. Criminal liability is assigned on behalf of the Russian Federation based on a court’s judgment. No other body of state authority has such functions and competence — nobody may be found guilty in committing a crime and subjected to criminal punishment otherwise than by a court’s judgment. 4. Through punishment, the state forces the criminal to atone his guilt and incites law-abiding behavior. 5. Only criminal punishment gives rise to criminal record — a legal consequence connected to the entry of the conviction judgment into force and remaining in force until the moment of discharge or lift of criminal record. Section 2 Article 43 of the Criminal Code of the Russian Federation declares the following purposes of punishment: 1) restoring social justice; 2) reforming the convicted person; 3) preventing of the commission of further crimes. All the punishments established by the Criminal Code of the Russian Federation form a certain system, i.e. binding on the court exhaustive list of

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the types of punishments, listed in certain order (beginning with the less strict and finishing with the stricter). The following are the types of punishment: 1) fine, i.e. a monetary penalty imposed within the limits provided for by the Criminal Code of the Russian Federation. It may be established in the amount from five thousand rules to five million rubles or in the amount of wage or other income of the convicted person for a period from two weeks to five years; 2) deprivation of the right to hold specified office or to engage in specified activities, meaning the prohibition to hold offices in the civil service and local self-government bodies, or to engage in professional or any other activity. This punishment may be assigned for the term from one year to five years as the principal punishment and for the term from six months to twenty years as the additional punishment; 3) deprivation of special or military rank or honorary title, class rank, or government medals — may be assigned for a grave or particularly grave crime, with the account taken of the convicted person’s personality; 4) compulsory works, which consist of the performance of gratuitous socially useful works by the convicted person during his spare time. Their duration may comprise sixty to eighty hours, and they shall be served within no longer than four hours a day; 5) corrective labour, which, as opposed to compulsory works, lie in the withholding from the convicted person’s wages up to twenty-five per cent for the state budget. The term of corrective labour shall be from two months to two years; 6) restriction connected with military service, which lies in the withholding from the serviceman’s wages for the state budget in the amount set forth by court judgment, but not higher than twenty per cent. During the time of serving this punishment, the serviceman may not be promoted in his post or military rank, and the period of punishment shall not be counted in the period of service record for the purposes of promotion in rank; 7) restriction of liberty, which lies in the establishment by court of the following restrictions: — not to leave his permanent place of residence (stay) at certain time; — not to visit certain places located at the territory of the respective municipality; — not to leave the respective municipality; — not to visit the places of mass and other activities and not to take part in the said activities, etc. The convicted person shall be obliged to visit competent state authority once to four times per month for registration. The term of restriction of liberty varies from six months to four years; 8) obligatory works, applied as an alternative to the deprivation of liberty and lie in the engagement of the convicted person to labour in the places

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specified by the bodies of criminal enforcement system. Amount specified by court from five to twenty per cent shall be withheld from the convicted person’s wages. Obligatory works may be assigned for a period from two months to five years; 9) arrest — i.e. the maintenance of the convicted person in conditions of strict isolation from society. It may be assigned for a period from one to six months; 10) service in a disciplinary military unit, which is imposed upon servicemen undergoing military service for the term of three months to two years if the personality of the convicted person shows the possibility of substitution of deprivation of liberty by this type of punishment; 11) deprivation of liberty for a fixed term, which lies in the isolation of the convict from the society for a period from two months to twenty years; 12) deprivation of liberty for life, which is established for the commission of particularly grave crimes of attack on human life, as well as for committing particularly grave crimes against public health, public morals, public safety, sexual immunity of minors below fourteen years. Pursuant to section 2 Article 57 of the Criminal Code of the Russian Federation, deprivation of liberty for life shall not be imposed upon women, persons who have committed crimes at ages below eighteen years, and upon men who have reached sixty-five years of age by the time of adjudication; 13) capital punishment, which is the extraordinary punishment and is imposed only for particularly grave crimes encroaching on human life. Capital punishment is executed in a closed setting by manner of shooting. The execution of capital punishment in regard to several convicts shall be performed separately from each of them. The administration of the facility where capital punishment is executed is obliged to notify of the execution the court which issued the judgment, as well as one of the close relatives of the convicted person. The body shall not be provided for burying, and the burial location is not disclosed (Article 186 of the Criminal Execution Code of the Russian Federation). Currently, a moratorium on capital punishment is in place in the Russian Federation. Pursuant to Article 45 of the Criminal Code of the Russian Federation, compulsory works, corrective labour, restriction of military service, restriction of liberty, arrest, service in a disciplinary military unit, deprivation of liberty for a fixed term, deprivation of liberty for life, and capital punishment shall be applicable as basic penalties only. Fines and deprivation of the right to hold specific offices or to engage in specific activity shall be applicable as basic and additional penalties. Deprivation of a special or military rank, honorary title, class rank or government medal shall be applicable as additional penalties only.

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28.2. Imposition of a Punishment Imposition of a punishment means the judge’s choice of the type and amount of the punishment prescribed by the Criminal Code of the Russian Federation. Under the rules of section 1 Article 60 of the Criminal Code of the Russian Federation, the court shall impose just punishment on a person who has been found guilty of committing a crime, within the limits stipulated by the respective article of the Special Part of the Criminal Code of the Russian Federation, and with due account for the provisions of the General Part of the Criminal Code of the Russian Federation. A stricter punishment from those provided for a crime shall be imposed only if a milder penalty cannot ensure the achievement of the purposes of punishment. In imposing the punishment, the court shall take into consideration the following: — nature and degree of the social danger of the crime; — personality of the convict, his social characteristics, relation to family, employment, etc.; — circumstances mitigating and aggravating the punishment; — consequences and influence which the imposed penalty will have on the correction of the convicted person and on the conditions of his family. Article 61 of the Criminal Code of the Russian Federation lists the mitigating circumstances, which include: — commission of a crime of light or medium gravity due to a coincidence of circumstances; — the convicted person being a minor; — pregnancy; — the convicted person having infant children; — commission of a crime due to a coincidence of grave personal circumstances, or out of compassion; — illegality or amorality of the victim’s behavior, which served as a pretext for the crime; — giving oneself up, rendering active assistance in the clearance and investigation of a crime, the exposure and criminal prosecution of other accomplices in the crime, search for the property received through the crime, and a number of other circumstances. The list of circumstances mitigating the punishment is open, i.e. when a court is imposing a penalty, other circumstances may be used as mitigating, apart from those expressly prescribed by the Criminal Code of the Russian Federation. The list of aggravating circumstances set forth in Article 63 of the Criminal Code of the Russian Federation is closed, or exhaustive, meaning that when a court is imposing a penalty, no circumstances may be used as aggravating,

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apart from those expressly prescribed by the Criminal Code of the Russian Federation. These circumstances include: — recidivism of crimes; — grave consequences of the commission of a crime; — commission of a crime by a group of persons or a group of persons by previous concert, by an organised group or by a criminal community (criminal organisation); — an especially active role played in the commission of the crime; — involvement in the commission of a crime of persons who suffer from heavy mental derangement or who are in the state of intoxication, or of persons who have not reached the age of criminal liability; — commission of a crime by reason of political, ideological, racial, national, or religious hatred or enmity or by reason of hatred or enmity with respect to some social group; — commission of a crime against a person or his relatives in connection with his official activity or in the discharge of his public duty; — commission of a crime against a woman who is known to be in the state of pregnancy, or against a minor, another helpless person or a person who is dependent on the guilty person; — commission of a crime with severe brutality, sadism, or mockery, or involving tormenting the victim, and a number of other circumstances. The lawmaker entitled the court to recognize commission of a crime in the state of alcoholic or other intoxication as an aggravating circumstance. The Criminal Code of the Russian Federation sets forth cases where the existence of certain mitigating circumstances or a sum total thereof may serve as grounds not only for mitigating the punishment prescribed by a certain article of the Criminal Code of the Russian Federation, but also for imposition of a milder punishment than that prescribed for this crime. In other words, taking into account the circumstances of the case (purpose and motive of the crime, the role of the convict, his behavior during or after the crime, and other circumstances which materially reduce the degree of social danger of the crime), the court may elect to impose either a lower degree of penalty than the lowest one prescribed for that crime, or to impose another, a milder punishment. Under Article 66 of the Criminal Code of the Russian Federation, in imposing punishment for an unfinished crime the court shall take into account the circumstances by virtue of which the crime was not finished. The term or scope of punishment for preparation for a crime may not exceed half of the maximum of the term or scope of the most severe penalty prescribed by the relevant article of the Criminal Code of the Russian Federation for a finished crime. The term or extent of punishment for an attempted crime may not exceed three-quarters of the maximum term or the scope of the most severe penalty

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prescribed by the relevant article of the Criminal Code of the Russian Federation for a finished crime. In imposing punishment for a criminal complicity, the court shall take into consideration the nature and the degree of actual participation of the person in its perpetration, as well as the importance of this participation for the achievement of the purpose of the crime. In imposing punishment in case of recidivism of crimes, the nature and degree of social danger of the newly committed crimes shall be taken into account. The term of punishment in any case of recidivism may not be less than one third of the maximum term of the most severe penalty prescribed for the crime committed. However, law obliges the court to take into account mitigating circumstances, as well as extraordinary circumstances of committing a crime, if their application allows the imposition of a milder penalty than prescribed for that crime by the respective article of the Criminal Code of the Russian Federation. With respect to multiplicity of crimes (i.e. commission of two or more crimes, for neither of which the person was convicted) the punishment shall be imposed separately for each committed crime. The rule is in action whereby the maximum punishment may not exceed more than by a half the maximum term or scope of the punishment established for the gravest of the committed crimes. With respect to imposition of punishment by cumulation of convictions (i.e. when the convicted person committed a new crime after the adjudication of a judgment but before its full serving) the punishment imposed by the latest court judgment shall be joined to the non-served part of the punishment imposed by the earlier court judgment in part or in full. The final punishment by cumulation of convictions should be greater than the punishments under the later and the earlier court judgment. It may not exceed thirty-five years of deprivation of liberty. Article 73 of the Criminal Code of the Russian Federation sets forth that if by imposing corrective labour, restriction in military service, restriction of liberty, service in a disciplinary military unit, or deprivation of liberty for a term up to eight years, a court arrives at the conclusion that it is possible to reform the convict without his actually serving a punishment, the court shall decree that the imposed punishment is deemed conditional. Therefore, in this case the penalty shall not apply to the convict. The Criminal Code of the Russian Federation sets forth a number of crimes of higher social danger, for which conditional sentence may not be imposed (only a real punishment shall be served). In imposing a conditional sentence the court shall set forth a probationary period during which the person convicted conditionally should prove his rehabilitation by his behavior (from six months to five years). If before the expiry of the probationary period the conditionally convicted person systematically or maliciously failed to execute his duties placed on him

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by court, systematically breached public order or hid himself from control measures, the conditional sentence shall be reversed and the punishment shall be imposed. If the conditionally convicted person has proven his reformation, compensates damage inflicted by his crime, the conditional sentence may be reversed upon the expiry of no less than half of the fixed probationary period, and the criminal record shall be lifted.

28.3. Release from Criminal Liability and Punishment Release from criminal liability means that a person who has committed a crime of little or medium gravity for the first time, may be released from state compulsion and punishment for the crime committed. Should this be the case, the person shall not be convicted by court. A person shall be released from criminal liability if after the perpetration of the crime he has given himself up, assisted in the exposure and investigation of the crime, compensated for the damage inflicted, or in any other way effected restitution of the damage caused by the crime, which ceased to be socially dangerous as a result of active repentance. A person who has committed a crime may also be released from criminal liability if he has reconciled with the victim and restituted any damage inflicted on the victim (Article 76 of the Criminal Code of the Russian Federation). Article 76.1 of the Criminal Code of the Russian Federation sets forth the conditions of releasing from criminal liability for a number of crimes in the economic sphere. For instance, for some crimes (unlawful receipt of state loan for particular purposes, evasion from payment of customs fees, unlawful actions during bankruptcy) release from criminal liability is possible if the convict compensated for the damage inflicted on a citizen, organisation, or the state and paid to the federal budget monetary compensation in the amount of five times the sum of damage. By operation of Article 78 of the Criminal Code of the Russian Federation a person shall be released from criminal liability due to expiration of statutes of limitation, i.e. if the following time limits have expired since the day of commission of the crime: a) two years after the commission of a crime of little gravity; b) six years after the commission of a crime of medium gravity; c) ten years after the commission of a grave crime; d) fifteen years after the commission of a particularly grave crime. The running of limitation period shall be stopped if the person who has committed the crime evades investigation or court trial. Alongside with that, section 5 Article 78 of the Criminal Code of the Russian Federation indicates that the statutes of limitation shall not be applied to persons who have committed crimes connected with terrorism; planning, preparing, unleashing, or waging an aggressive war; ecocide; genocide; in-

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fringement on life of a state or social public figure; seizure or retaining of power, and a number of other crimes). Release from punishment is a release of the convicted person by a competent state body from either imposition of penalty or from full or partial serving that penalty. As opposed to release from criminal liability, release from punishment may only be applied to a person convicted of committing a crime, i.e. to a person in whose relation a convicting judgment has been issued by court. With the exception of amnesty and pardon, only court can release a person from punishment. Criminal legislation sets forth the following types of release from punishment: — conditional early release from punishment (i.e. release of a person from further serving the sentence which is already being served); — the replacement of the unserved term of punishment with a milder penalty; — release from punishment due to a change of situation (i.e., change of situation which lead to loss of social danger of the deed or of the convict); — release from punishment due to illness; — suspended sentence; — suspended sentence for drug addicts; — release from punishment in connection with the expiry of the limitation statutes for the court’s sentence; — release from punishment based on an act of amnesty or pardon. Each of the listed types of release from punishment (mitigation of punishment) may be applied where there are strictly defined grounds and certain conditions.

28.4. Amnesty. Pardon. Criminal Record Pursuant to section 2 Article 84 of the Criminal Code of the Russian Federation, persons who have committed crimes may be released from criminal liability by an act of amnesty (Greek: amnestia — forgiveness). Persons who have been convicted of crimes may be either released from punishment, or the punishment imposed may be shortened or replaced with a milder type of punishment, or released from additional punishment. Criminal record may be lifted from persons who have served punishment, by an act of amnesty. An amnesty may be declared by the State Duma of the Federal Assembly of the Russian Federation with regard to a broad scope of persons. Application of amnesty is generally connected with the expression of humanism, but it may also have practical purposes: prevent polarisation in the society, avoid an armed conflict, return capital into the country, etc. Amnesties in Russia, as in many other countries, are also declared in connection with significant national holidays or important anniversaries.

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As opposed to an amnesty, pardon may be granted by the President of the Russian Federation in respect to a specific person (Article 85 of the Criminal Code of the Russian Federation). A person who has been convicted of a crime may be released from further serving his sentence, or the imposed punishment may be reduced or replaced with a milder penalty by an act of pardon. The criminal record may be lifted from the person who has served punishment, by an act of pardon. Criminal record is a special legal status of a person constituted by his being convicted and sentenced to a certain punishment, which is expressed in the possibility of arising of negative consequences (limitations) of general legal and criminal legal character. Criminal legal nature of the consequences of criminal record lies in the fact that criminal record shall be taken account of in recidivism, in imposition of penalty, in deciding on release from criminal liability, etc. Common legal nature of criminal record may lie in the fact that persons who have criminal record may not hold certain offices, obtain a license for acquisition and storage of firearms, leave the country, be recruited for military service, have access to state secret, etc. However, criminal record is not an eternal consequence of a committed crime. It has certain timeframes. Pursuant to section 1 Article 86 of the Criminal Code of the Russian Federation, criminal record arises from the day of entry of the court’s sentence into legal force, remains in force during the serving of the punishment and stays in effect for a certain time after its serving upon the moment of its cancellation or lifting. A person released from punishment shall be deemed not having criminal record under section 2 Article 86. Criminal record is cancelled in the following manner: a) with respect to conditionally sentenced persons — upon the expiry of the period or probation; b) with respect to persons sentenced to penalties milder than deprivation of liberty — upon the expiry of one year after punishment was served or executed; c) with respect to persons sentenced to deprivation of liberty for crimes of little or medium gravity — upon expiry of three years after punishment was served; d) with respect to persons sentenced to deprivation of liberty for grave crimes — upon expiry of eight years after punishment was served; e) with respect to persons sentenced to deprivation of liberty for particularly grave crimes — upon expiry of ten years after punishment was served. However, if the convicted person behaved faultlessly after the serving of the punishment, as well as compensated for the damage inflicted, the court upon his motion may remove his criminal record before the expiry of the normal term for cancelling the record of conviction (section 5 Article 86 of the Criminal Code of the Russian Federation). The cancellation or lifting of a criminal record shall cancel all the legal consequences related to the record of conviction.

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28.5. Criminal Liability of Minors Criminal liability of minors is stipulated in part 5 of the Criminal Code of the Russian Federation, establishing the specifics of types of punishments and their application for minors. Pursuant to section 1 Article 87 of the Criminal Code of the Russian Federation, minors are persons who at the moment of the commission of the crime had reached the age of fourteen but had not reached the age of eighteen years. The types of punishments which can be imposed to minors are: a) fine (which may be imposed if the convicted minor has his own earnings or property on which recovery may be levied, as well as in the absence of such. A fine imposed on a convicted minor may be recovered by a decision of court from his parents or other legal representatives with their consent); b) deprivation of the right to engage in specified activities; c) compulsory works (for the term from forty to one hundred and sixty hours); d) corrective labour (for the term up to one year); e) restriction of liberty (for the term from two months to two years); f) deprivation of liberty for a fixed term (this punishment may not be imposed on a minor convict who has committed a crime of little or medium gravity at the age of less than sixteen years old for the first time, as well as on other minor convicts who have committed crimes of little gravity for the first time. When inflicting upon a minor punishment in the form of deprivation of liberty for committing a grave or a particularly grave time, the lowest limit of punishment provided for by the respective article of the Special Part of the Criminal Code of the Russian Federation shall be reduced by half). The minor age of the convict is undoubtedly a mitigating circumstance, but the court should also take into account the conditions of his life and upbringing, the level of mental development, other specifics of the personality, as well as the older people’s influence. Pursuant to Article 90 of the Criminal Code of the Russian Federation, a minor who has committed a crime of little or medium gravity may be relieved from criminal liability if it is found that his reformation can be achieved by applying compulsory measures of educational influence. These measures include: а) a warning (clarification of the harm inflicted by his deed and of the consequences of further commission of crimes); b) transfer to the surveillance of parents or persons acting in loco parents, or a specialised state agency (burdening these persons with the obligation of educational influence on the minor and control over his behavior); c) the duty of redressing the damage caused; d) restriction of leisure and establishment of special requirements for the behavior of the minor (there may be a ban on visiting certain places, using

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certain forms of leisure, restriction on being outside of home during certain time of day, etc.). Several compulsory measures of educational influence may be imposed upon a minor simultaneously. A minor convicted for a punishment for a crime of little or medium gravity may be released by court from punishment by the use of compulsory measures of educational character listed above. A minor sentenced to deprivation of liberty for the commission of a crime of medium gravity, or a grave crime, may be released by court from punishment and placed in a specialised closed-type teaching and educational institution. This measure is of special educational character and is applied for the purpose of reforming the minor who needs special teaching conditions and pedagogical approach. The minor may be placed in the said institution before his reaching eighteen years, but for no longer than for three years. By way of exception, compulsory measures of educational influence may be applied to persons who have committed crimes at the age of eighteen to twenty years.

28.6. Compulsory Measures of Medical Nature Compulsory measures of medical nature are the measures established by Chapter 15 of the Criminal Code of the Russian Federation imposed by court to persons suffering from mental derangement, for the purpose of treating them or improving their mental condition and prevention of further commission of crimes. Said measures are coercive, but they are not punishment, since they are not connected to the infliction of certain harm and deprivations, but are imposed for the sake of the convict’s interests. Moreover, punishment shall be imposed by a court judgment for a fixed term, while compulsory measures of medical nature are imposed until the full recovery of the convict or until the loss of social danger. Compulsory measures of medical nature do not express a negative attitude of state to the mentally deranged person, do not cause arising of criminal record, and are not aimed at the restoration of justice and reformation of a person. They may only be applied towards persons who by the nature of their deed and their state of mental derangement pose a social danger. Pursuant to Article 97 of the Criminal Code of the Russian Federation, compulsory measures of medical nature may be imposed by a court on the following persons: a) persons who have committed crimes while in a state of insanity; b) persons who, after the commission of a crime, became mentally deranged, which makes it impossible to impose or execute punishment; c) persons who have committed a crime and who suffer from mental derangement that does not incapacitate them mentally;

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d) persons who have committed at the age of older than eighteen a crime against sexual immunity of minors under fourteen years and who suffer from sexual preference disorder (pedophilia) that does not qualify as insanity. Criminal legislation sets forth the following types of compulsory measures of medical nature: a) compulsory out-patient observation and treatment by a psychiatrist; b) compulsory treatment in a specialised mental hospital; c) compulsory treatment in a specialised mental hospital with intensive observation; d) compulsory treatment in a psychiatric hospital of specialised type with intensive observation. Persons who are convicted of crimes committed in the state of sanity, but who are in need of medical treatment for medical disorders that do not qualify as insanity, may be imposed by a court in addition to the punishment with compulsory medical measures in the form of compulsory out-patient observation and treatment by a psychiatrist.

28.7. Confiscation of Property Pursuant to Article 104.1 of the Criminal Code of the Russian Federation, confiscation of property is forced gratuitous withdrawal without compensation, and conversion into ownership of state under a judgment of conviction of certain types of property. That property includes: — money, valuables, and other property received as a result of committing of murder, human trafficking, infringement of rights of authorship, unlawful organisation and conduction of gambling games, act of terror and assistance in terrorism, abuse of authority, receipt of bribe, and a number of other crimes set forth in section 1 Article 104.1 of the Criminal Code of the Russian Federation; — money, valuables, and other property used or intended for the use in financing terrorism, extremist activity, organised group, unlawful organised military formation, criminal community (criminal organisation); — instruments, equipment, or other means of commission of crime belonging to the accused person. Article 104.2 of the Criminal Code of the Russian Federation sets forth that if the confiscation of a specific item incorporated in the said property is impossible due to its being in use, being sold, or otherwise, the court shall issue a decision on confiscation of the amount of money corresponding to the value of the item. In case of insufficiency of monetary means subject to confiscation instead of the item included into property to be confiscated, the court shall issue a decision on confiscation of other property which value corresponds to the value

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of that item, or is comparable with the value of the item, with the exception of property which may not be confiscated under current legislation.

Test questions and tasks 1. Please describe the types of criminal punishment. 2. What should the court take into account when imposing a punishment? 3. What is the difference between imposing a punishment with respect to multiplicity of crimes and imposing a punishment with respect to cumulation of convictions? 4. What is the difference between release from criminal liability and release from criminal punishment? 5. What is criminal record and how is it different from punishment? 6. What is special about criminal liability of minors? 7. Can compulsory measures of medical nature be imposed along with punishment? 8. In what cases can a certain sum of money be confiscated?

CONTENTS Preface ............................................................................................................................... 3

Part 1 BASICS OF THE THEORY OF STATE AND LAW Chapter 1 ORIGINS OF STATE AND LAW 1.1. 1.2. 1.3.

Primary Causes and Forms of the Birth of State .................................................. 4 Principal Theories of State Origin ....................................................................... 6 Peculiarities of the Birth of Law .......................................................................... 8 Chapter 2 STATE: ITS ESSENCE AND FUNCTIONS

2.1. 2.2. 2.3.

State Power: Its Nature and Distinctive Features ............................................... 11 Definition and Characteristics of State ...............................................................12 State Functions and Their Classification ........................................................... 14 Chapter 3 FORM OF STATE

3.1. 3.2. 3.3. 3.4.

Form of State: Definition and Elements ............................................................ 16 Form of Government........................................................................................ 16 Form of State Structure .................................................................................... 18 Political Regime and Its Types .......................................................................... 19 Chapter 4 STATE MECHANISM AND THE SOCIETY'S POLITICAL SYSTEM

4.1. 4.2. 4.3. 4.4. 4.5.

Definition and Structure of the Mechanism of State .......................................... 23 State Agencies and Their Classification ............................................................. 24 Principles of Organisation and Functioning of the Mechanism of State ................................................................................ 25 Definition and Structure of the Society's Political System .................................. 26 State and the Political System ........................................................................... 27 Chapter 5 ESSENSE OF LAW

5.1. 5.2. 5.3.

Definition and Characteristics of Law ............................................................... 29 Principles of Law .............................................................................................. 31 Functions of Law .............................................................................................. 32

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5.4. 5.5.

Legal System of Society .................................................................................... 33 Modern Legal Families ..................................................................................... 33 Chapter 6 INDIVIDUAL, LAW, AND STATE

6.1. 6.2. 6.3. 6.4. 6.5.

Legal Status of an Individual: Definition and Types ........................................... 36 Correlation and Interaction of State and Law .................................................... 36 Rule of Law State: Essence and Principles ......................................................... 37 Civil Society: Definition, Characteristics, and Structure .................................... 38 Legal Awareness and Legal Culture ................................................................... 39 Chapter 7 NORM OF LAW. FORMS (SOURCES) OF LAW

7.1. 7.2. 7.3. 7.4. 7.5.

Definition and Characteristics of a Norm of Law............................................... 41 Structure of a Norm of Law .............................................................................. 42 Classification of Norms of Law ......................................................................... 42 Definition and Types of Forms (Sources) of Law............................................... 43 Normative Acts: Definition and Types .............................................................. 44 Chapter 8 LAW-MAKING AND REALISATION OF LAW

8.1. 8.2. 8.3.

Definition, Principles, and Types of Law-Making ............................................. 47 Systematisation of Legal Acts: Definition and Types.......................................... 48 Realisation of Law: Definition and Forms ......................................................... 49 Chapter 9 LEGAL OFFENCE AND LEGAL LIABILITY

9.1. 9.2.

Definition, Characteristics and Types of Legal Offence ..................................... 52 Notion, Grounds and Types of Legal Liability................................................... 55 Chapter 10 SYSTEM OF RUSSIAN LAW

10.1. Definition and Structural Elements of a System of Law ..................................... 57 10.2. Brief Description of Primary Branches of Russian Law...................................... 58

Part 2 BASICS OF CONSTITUTIONAL LAW Chapter 11 CONSTITUTIONAL LAW OF THE RUSSIAN FEDERATION. BASICS OF CONSTITUTIONAL ORDER OF THE RUSSIAN FEDERATION 11.1. Constitutional Law of the Russian Federation as a Branch of Law: General Description ......................................................................................... 61 11.2. Definition and Legal Features of a Constitution ................................................ 63 11.3. Fundamentals of the Constitutional Order of the Russian Federation ................ 64 Chapter 12 RIGHTS, FREEDOMS AND OBLIGATIONS OF MAN AND CITIZEN IN THE RUSSIAN FEDERATION 12.1. Notion of Rights and Freedoms of Man and Citizen.......................................... 69 12.2. Classification of the Fundamental Rights and Freedoms of Man and Citizen ........................................................................................... 70

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12.3. Obligations of Man and Citizen under the Constitution of the Russian Federation ................................................................................. 73 Chapter 13 FEDERAL STRUCTURE OF THE RUSSIAN FEDERATION 13.1. General Description of Modern Russian Federalism ......................................... 75 13.2. Constitutional Status of the Russian Federation ................................................ 76 13.3. Constitutional Status of the Subjects of the Russian Federation ................................................................................. 78 Chapter 14 STATE AND MUNICIPAL AUTHORITIES OF THE RUSSIAN FEDERATION 14.1. 14.2. 14.3. 14.4.

The President of the Russian Federation ........................................................... 80 The Federal Assembly (Parliament) of the Russian Federation .......................... 82 Law-Making Procedure in the Russian Federation ............................................ 84 The Government of the Russian Federation and the Structure of Federal Executive Bodies of the Russian Federation ...................................... 86 14.5. Judicial Power and the Prosecutor’s Office ........................................................ 90 14.6. Local Self-Government in the Russian Federation ............................................ 92

Part 3 BASICS OF CIVIL LAW Chapter 15 CIVIL LAW AS A BRANCH OF RUSSIAN LAW 15.1. The Definition and the System of Civil Law ...................................................... 95 15.2. Sources of Civil Law ......................................................................................... 97 Chapter 16 CIVIL RELATIONS 16.1. Definition, Structure and Types of Civil Relations ............................................ 99 16.2. Citizens (Individuals) as Participants of Legal Relations ...................................100 16.2.1. Specific Features of a Citizen. Active and Passive Legal Capacity of a Citizen ..................................................................100 16.2.2. Business Activities of a Citizen.............................................................103 16.2.3. The Guardianship, the Trusteeship, the Patronage ...............................104 16.2.4. Recognizing the Citizen as Missing for an Unknown Reason and Declaring the Citizen as Dead ......................................................105 16.3. Legal Entities as Parties to Civil Relations ........................................................106 16.3.1. The Definition and Legal Capacity of a Legal Entity ............................106 16.3.2. Establishment and Termination of Legal Entities. Bankruptcy .............107 16.4. Types of Legal Entities .....................................................................................110 16.4.1. Corporate Legal Entities ......................................................................110 16.4.2. Unitary Legal Entities .........................................................................114 16.5. Objects of Civil Rights .....................................................................................115 16.6. Deals and their Invalidity .................................................................................117 16.7. Enjoyment and Protection of Civil Rights ........................................................119 Chapter 17 RIGHT OF OWNERSHIP AND OTHER RIGHTS IN REM 17.1. Notion of Right of Ownership and its Holders ..................................................121 17.2. Acquisition and Cessation of Ownership ..........................................................122

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17.3. Common Property ...........................................................................................123 17.4. Limited Rights in Rem.....................................................................................125 17.5. Ownership Protection ......................................................................................126 Chapter 18 GENERAL PROVISIONS ON OBLIGATIONS AND CONTRACTS 18.1. 18.2. 18.3. 18.4. 18.5. 18.6. 18.7. 18.8.

The Definition of an Obligation and Its Performance .......................................128 Providing for the Discharge of Obligations .......................................................130 Liability for Violation of Obligations ................................................................132 Termination of Obligations ..............................................................................133 Definition and Terms of Contract ....................................................................134 Types of Contracts ...........................................................................................136 Concluding a Contract.....................................................................................137 Modification and Rescission of Contract..........................................................139 Chapter 19 INHERITANCE LAW

19.1. 19.2. 19.3. 19.4.

General Provisions on Inheritance ...................................................................141 Inheritance by Will ..........................................................................................142 Inheritance by Operation of Law ......................................................................144 Acquisition of Inheritance ...............................................................................145

Part 4 BASICS OF LABOUR LAW Chapter 20 LABOUR LAW AND ITS ACTORS 20.1. Definition, Subject Matter, and Method of Labour Law ...................................147 20.2. Principles of Labour Law .................................................................................149 20.3. Labour Relations .............................................................................................151 Chapter 21 LABOUR CONTRACT 21.1. Definition of Labour Contract and Its Conclusion ...........................................154 21.2. Modification and Termination of a Labour Contract ........................................157 21.3. Social Partnership in Labour and Collective Agreements .....................................................................................................160 Chapter 22 WORKING TIME AND LEISURE TIME 22.1. Definition and Types of Working Time ............................................................162 22.2. Labour Regulations and Labour Discipline ......................................................164 22.3. Definition and Types of Leisure Time ..............................................................166 Chapter 23 LABOUR PROTECTION. PROTECTION OF LABOUR RIGHTS AND FREEDOMS 23.1. Protection of Labour and Its Organisation ........................................................169 23.2. Protection of Labour Rights and Labour Disputes ............................................171

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Part 5 BASICS OF ADMINISTRATIVE LAW Chapter 24 ADMINISTRATIVE LAW AND PARTICIPANTS OF ADMINISTRATIVE LEGAL RELATIONS 24.1. Subject Matter, Method and Distinctive Features of Administrative Law as a Branch of Law...........................................................................................175 24.2. Administrative Legal Norms and Administrative Relations ...............................177 24.3. System of Administrative Law and Its Sources ..................................................178 24.4. Administrative Law Actors and Their Status .....................................................179 24.4.1. Citizens, Foreign Citizens and Stateless Persons ..................................179 24.4.2. President and Executive Agencies ........................................................182 24.4.3. State Civil Servants..............................................................................185 24.4.4. Military Servicemen ............................................................................189 Chapter 25 ADMINISTRATIVE COERCION AND ADMINISTRATIVE LIABILITY 25.1. 25.2. 25.3. 25.4.

Definition and Types of Administrative Coercion .............................................192 Definition and Types of Administrative Offences..............................................193 Administrative Liability and Its Principles ........................................................195 Administrative Penalty and Its Types ...............................................................197

Part 6 BASICS OF CRIMINAL LAW Chapter 26 CRIMINAL LAW AND CRIMINAL LEGISLATION 26.1. 26.2. 26.3. 26.4.

Definition, Subject Matter, Method, and Specifics of Criminal Law .................201 Principles of Criminal Law ..............................................................................202 Criminal Law of Russia and Its Structure .........................................................203 Operation of Criminal Law in Time and Space .................................................204 Chapter 27 CRIME AND CRIMINAL LIABILITY

27.1. 27.2. 27.3. 27.4. 27.5. 27.6. 27.7.

Definition of Crime, Its Features, and Categories.............................................207 Multiplicity of Crimes......................................................................................209 Criminal Liability ............................................................................................210 Corpus Delicti .................................................................................................211 Stages of Committing a Crime .........................................................................215 Complicity in a Crime .....................................................................................216 Circumstances Excluding the Criminality of a Deed .........................................218 Chapter 28 CRIMINAL PUNISHMENT

28.1. 28.2. 28.3. 28.4. 28.5. 28.6. 28.7.

The Definition, Purposes, and Types of Punishment ........................................222 Imposition of a Punishment .............................................................................225 Release from Criminal Liability and Punishment .............................................228 Amnesty. Pardon. Criminal Record .................................................................229 Criminal Liability of Minors ............................................................................231 Compulsory Measures of Medical Nature ........................................................232 Confiscation of Property ..................................................................................233

Учебное издание Малько Александр Васильевич, Субочев Виталий Викторович, Федоров Григорий Витальевич

ОСНОВЫ РОССИЙСКОГО ЗАКОНОДАТЕЛЬСТВА Учебник На английском языке

Training publication Malko Alexander Vasilyevich, Subochev Vitaly Viktorovich, Fedorov Grigory Vitalyevich

BASICS OF RUSSIAN LAW Textbook

Оригинал-макет подготовлен компанией ООО «Оригинал-макет» www.o-maket.ru; тел.: (495) 726-18-84 Санитарно-эпидемиологическое заключение № 77.99.60.953.Д.004173.04.09 от 17.04.2009 г. Подписано в печать 24.10.2016. Формат 60×90 1/16. Печать цифровая. Печ. л. 15,0. Тираж 100 экз. Заказ № ООО «Проспект» 111020, г. Москва, ул. Боровая, д. 7, стр. 4.