Law and Modern States, 2014, No. 1


                LAW
                AND MODERN
                STATES




Comparative Studies Journal







2014 / No 1

                 LAW AND MODERN STATES
                 Comparative Studies Journal


FOUNDER: Consulting and Legal Protection of People Foundation

ISSN 2307-3306

DOI: http://dx.doi.org/10.14420/











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If texts reprinted, reference to Law and Modern States Journal is compulsory. All the published materials may not express standpoint of the Founder and the Editorial Board.

EDITORIAL BOARD:


Svetlana Boshno, Doctor of Legal Sciences, Professor (Moscow)
William E. Butler, John Edward Fowler Distinguished Professor of Law Dickinson School of Law, Pensylvania State University (USA)
Olga Belousova, Doctor of Economics, Professor (Moscow)
Marina Davydova, Doctor of Legal Sciences, Professor (Moscow)
Kadyrbech Delokarov, Doctor of Philosophical Sciences, Professor, Honoured Science Worker of Russian Federation (Moscow)
Ekaterina Dogadailo, LLD, Ph.D (Jurisprudence), Associate Professor (Moscow)
Jenny M.T. Hardjatno, Doctor, ProfessorUniversity of Indonesia, Director of Center of European Studies University of Indonesia, Jakarta (Indonesia)
Abulfas Guseinov, Doctor of Legal Sciences, Professor Baku State University (Azerbaijan)
Marina Markhgeim, Doctor of Legal Sciences, Professor (Rostov-on-Don)
Elena Nazarova, Doctor of Sociological Sciences, Professor (Moscow)
Sergey Pavlikov, Doctor of Legal Sciences, Professor (Moscow)
William E. Pomeranz, Doctor of Legal Sciences, Ph.D., Deputy Director Kennan Institute (USA)
Igor Ponkin, Doctor of Legal Sciences, Professor (Moscow)
Valery Rybalkin, Doctor of Philology, Professor Kiev National State University, Head of Division of National Academy of Sciences (Ukraine)
Alevtina Shevchenko, Doctor of Political Sciences, Professor (Moscow)
Olga Tsybulevskaya, Doctor of Legal Sciences, Professor (Saratov)
Andrey Vassoevich, Doctor of Philosofical Sciences, Ph.D. (Economics), Professor (St. Piteresburg)
Elena Vinogradova, Doctor of Legal Sciences, Professor (St. Pitersburg)

stM⁶



            CONTENT


EDITORIAL
Dmitriy Ilchenko, Svetlana Boshno PREVENTION OF CORRUPTION - THE JOINT INITIATIVES OF THE EDITORIAL BOARD OF «LAW AND MODERN STATES» JOURNAL AND THE MINISTRY OF EDUCATION AND SCIENCE OF THE RUSSIAN FEDERATION (DOI: http://dx.doi.Org/10.14420/en.2014.1.1).................................5

LAW THEORY, HISTORY AND DOCTRINE
Yevgeny Reznikov A NOTION OF LEGAL IDENTITY (DOI: http://dx.doi.org/10.14420/en.2014.1.2).................................9
Maksim Smoljarov HUMANIZATION OF PUNISHMENT. EVOLUTION OF THE CONCEPT IN DRAFTS OF NORMATIVE LEGAL DOCUMENTS OF THE XVIIIth AND EARLY XIXth CENTURIES IN RUSSIA (DOI: http://dx.doi.org/10.14420/en.2014.1.3)............14
Camilla Kozinets BRIEF HISTORY OF RUSSIAN SYSTEMATIZATIONS OF LEGISLATION BY WAY OF CODE OF LAWS
(DOI: http://dx.doi.org/10.14420/en.2014.1.4)................................19


                COMPARATIVE ECONOMIC AND LEGAL RESEARCH
Alexey Chepus LEGAL ANALYSIS OF THE LEGAL LIABILITY OF THE EXECUTIVE BRANCH IN RUSSIA AND USA (DOI: http://dx.doi.org/10.14420/en.2014.1.5)...................................23
Antonina Sharkova, Irina Alieva, Valeriya Monakhova DEVELOPMENT OF SOCIOECONOMIC COOPERATION BETWEEN RUSSIA AND THE USA (DOI: http://dx.doi. org/10.14420/en.2014.1.6).......................................................30

INTERNATIONAL LAW AND FOREIGN LEGISLATION
Alexei Ivanov, Ivan Bogun CORRUPTION AND POLITICAL CRISIS IN UKRAINE (DOI: http://dx.doi.org/10.14420/en.2014.1.7).........................................40
Kira Sazonova PROBLEMATICS OF RESPONSIBILITY UNDER INTERNATIONAL LAW IN RUSSIAN AND FOREIGN DOCTRINES OF INTERNATIONAL LAW (DOI: http://dx.doi.org/10.14420/en.2014.1.8)...................................50

JURISPRUDENCE: PRESENTATION OF A TEXTBOOK
Svetlana Boshno FEATURES OF LAW (DOI: http://dx.doi.org/10.14420/en.2014.1.9)...................................55

                  EDITORIAL


                  PREVENTION OF CORRUPTION - THE JOINT
                  INITIATIVES OF THE EDITORIAL BOARD OF “LAW
                  AND MODERN STATES” JOURNAL AND THE MINISTRY OF EDUCATION AND SCIENCE OF THE RUSSIAN FEDERATION
DOI: http://dx.doi.org/10.14420/en.2014.1.1

     The UN General Assembly adopted the United Nations Convention against corruption on October 31, 2003, as well as it proclaimed December 9 as International Anti-Corruption Day. The Convention was ratified by 168 States. Russia acceded to the Convention on March 8, 2006. International Anti-Corruption Day is celebrated since 2004.
     In the Ministry of Education and Science of the Russian Federation, on December 9, 2013, on International Anti-Corruption Day, a round table was held on «Civil Society in the Fight against Corruption». It was attended by representatives of the Ministry of Education and Science of Russia, RANEPA (the Russian Presidential Academy of National Economy and Public Administration), and «Consulting and Legal Protection of the Population Foundation - the founder of our journal. At the roundtable our journal was represented by S.V. Boshno, Doctor of Law, Professor, and as well by A.T. Khidzev and T.M. Tatishvili, specialists in information and communication.
     It was an interesting rich event, where presentations were made by representatives of the Russian Ministry of Education and Science, Administration of the President of the Russian Federation, the nominations for the awarding of diplomas and certificates of the Ministry of Education and Science of the Russian Federation. The participants of the round table showed an exceptional interest in the issues of combating corruption, conflict of interest, the teaching of anticorruption educational programs and publication of anti-corruption documents.
     Round table participants summed up the results of execution of the Decree of the President of the Russian Federation from March 13, 2012, No 297 On the national anti-corruption plan for 2012-2013 years and amendments to certain acts of the President of the Russian Federation on the issues of corruption. In the

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Decree, the Head of the State instructed the Government of the Russian Federation to ensure conduction annually, on the basis of the federal state budget educational institution of higher professional education «Russian Presidential Academy of National Economy and Public Administration», of educational-methodical seminars for up to three days with participation of up to 85 teachers. Interaction of universities and with RANEPA was carried out under the overall supervision and methodical guidance of Ministry of Education of Russia. High-quality organization of the educational process, highly qualified lecturers provided an opportunity to improve the skills of 115 teachers. Members of the Editorial Board of our journal organized conduction of training seminars.
      Participants of seminars represented more than half of the subjects of the Russian Federation.
      The Ministry of Education and Science of the Russian Federation considers prevention through legal education of learning youth as an important direction of anti-corruption work. Implementation of this direction is possible with the introduction of corresponding information blocks into educational content.
      We believe a worthwhile activity is inclusion in the content of jurisprudence law textbooks of chapters, paragraphs with an anti-corruption focus. Thus, in the textbook «Jurisprudence: Foundations of the State and Law» by S.V. Boshno, there is chapter 38 «Legal mechanisms for combating corruption». As result of studying the chapter, the student will know the notion of corruption, forms of corruption, regulatory legal acts in the sphere of combating corruption, the main directions of the state policy in the sphere of combating corruption, international anti-corruption cooperation, anti-corruption expertise. The student will acquire the ability to distinguish resistance, and prevention of corruption, and will possess the skills to identify conflicts of interest, to establish corruption defects of legislation, to conduct basic expert action. All of these knowledge, abilities and skills are extremely useful for the formation of the anti-corruption legal consciousness, bringing up impossibility to bargain (a) bribe.
      Certificates of Merit of the Ministry of Education and Science for participation in prevention and combating corruption, as well as for the implementation of the National anti-corruption plan for 2012-2013 years, were awarded to Svetlana Vladimirovna Boshno, editor-in-chief of the journal «Law and Modern States», Head of Political Science and Law Department of the International Institute of Public Administration and Management of the Russian Presidential Academy of National Economy and Public Administration.
      For active participation in the implementation of anti-corruption education programs, Certificate of Merit was awarded to Nailya Akhmetovna Akhmetova, PhD in Sociology, Associate Professor of Constitutional and Municipal Law, Volgograd State University.
      In connection with the publication of scientific works of the anti-corruption orientation («Problems and prospects for combating corruption in the sphere of education», in particular (by the example of the Lipetsk Region — Tambov, 2011), and successful participation in training seminars, Gratitude Award of Ministry of

Ilchenko D., Boshno S. Prevention of corruption - the joint initiatives of the editorial board of «Law and...




Education of Russia was given to Dmitriy Victorovich Sokolov, PhD, Associate Professor of Criminal Law, Criminal Procedure and Criminalistics of the Lipetsk State Technical University. These are authors of our journal.
      Different printing and publishing materials in anti-corruption sphere created by the Russian Presidential Academy of National Economy and Public Administration and “Consulting and Legal Protection of the Population” Foundation were presented at the round table. Of great interest is the annual Almanac «Anti-corruption expertise of normative legal acts» (fig. 1), which has been the result of the participation of the Presidential Academy in implementation of the Federal target program «Scientific and Scientific-Pedagogical Staff of Innovative Russia» for the period 2009-2013. The Almanac implements an idea formulated by Ministry of Education of Russia, i.e. support for research schools, establishment of young scientists in science. Each issue has articles of professors, associate professors, senior lecturers, postgraduates, undergrauates, students and even schoolchildren.

Fig. 1. «Anti-corruption expertise of normative legal acts» Almanac

      Ministry of Education and Science of the Russian Federation at the round table supported the publication of the journal «Law and Modern States». There was noted such a merit of our journal as having a heading «Legislation against Corruption». Each issue of the journal contains articles of an anti-corruption focus. Thus, the number 3 for the 2013 year published articles of N.V. Mamitova, Professor of RANEPA, «Anti-corruption legal policy: problems of formation in modern Russia»;

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of T.M. Tatishvili, postgraduate student of RANEPA, «Anti-corruption expertise in the system of measures to counter and prevent corruption»; of A.A. Ivanov, the undergraduate student of RANEPA, «Peculiarities of legal support in the area of entrepreneurship and combating corruption: comparative legal research». This is an example of the activity of the research school, organizing work on the general subject of scholars of different age and scientific expertise. Ministry of Education of Russia recommended to publish articles, including on combating and preventing corruption, in our journal. National scientists in prestigious foreign science-metric systems, Web of Science and Scopus, is a goal overseen by Ministry of Education of Russia — and that that we are committed.

                     Dmitry Ilchenko, Head of Department of the Ministry of Education and Science of the Russian Federation, Svetlana Boshno, Editor-in-Chief

                     LAW THEORY, HISTORY AND DOCTRINE

                     A NOTION OF LEGAL IDENTITY

DOI: http://dx.doi.Org/10.14420/en.2014.1.2

Yevgeny Reznikov, Candidate of Juridical Science, Associate Professor of Theory of State and Law Department of Municipal Educational Institution «Volga Institute of Economics, Pedagogics and Law», Judge of Dzerzhinsky District Court of Volgograd, e-mail: evreznikoff@yandex.ru.

Abstract.            This article analyzes theoretical and legal aspect of definition «legal
                     identity», being a relatively new notion formulated by the science of theory of state and law. It must be noted that a social aspect of identity attains particular importance in modern conditions, when a social differentiation has reached the highest point of complexity. A person cannot be torn away from society, but cannot either be just a «member of society», because being a part of society is inevitably mediated by participation in various social groups. Plurality of social roles results in the fact that sometimes it is hard for an individual to get his/her bearings in social space and determine which of those roles is primary and priority one. Such a necessity arises for no other reason than because different statuses can put forward different demands with regard to behavior and thinking of a person, form various personal qualities. As a consequence, a conflict is coming between different social roles, fraught with not only individual but social crises, too. That’s why attainment of one’s own identity is one of a person’s first priorities, the solution of which lies either in the plane of choice between several options, or in the possibility of synthesis of several statuses (roles) on this or that regular basis. It’s obvious that processes of that kind cannot be indifferent in legal contemplation. Because that is exactly law that is the primary authority which distributes and fixes social statuses. Legal regulation of a person’s social activity inevitably generates this or that attitude on his/her part. Such connection between a person’s legal status, his/her behavior and conscience gives all the grounds to discussion about legal identity existing along with other identities - ethnic, religious, political etc.
Keywords:            identity, social identity, politico-legal identity, legal identity, state
                     identity, subject of legal identity, subject of law, legal status, social status, legal consciousness.

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       In modern studies dedicated to identity it is conventional to differentiate it depending on type of social community to which a person can belong (for example, ethnic, religious, political, professional etc.). In that connection it seems to be justified to mark, besides named ones, legal identity, as well, which exists to the extent that corresponding social group possesses legally valid qualities.
       Legal aspects of social identity are for the time being touched upon in scholarly literature just occasionally. So, among legal scholars A.G. Khabibulin was one of the first to use that notion, though, to be exact, his work refers not to legal identity, but to state identity as an element of a person’s legal status. He connects the problem of identity with an institute of citizenship as of special politico-legal bond between state and personality.
       In the opinion of A.G. Khabibulin, civil state of personality requires not only objective politico-legal connection with state, but subjective reflection of that connection, that is personal evaluation of one’s belonging to certain state. Subjectification by individuals and their groups of all objectively existing relations with state, their realization and recognition are necessary. State identity is in evidence if state is for a citizen something subjectively significant, if one associates oneself with it, rates citizenship among one’s most important social roles. The fundamental principles of the concept «state identity» proposed by A.G. Khabibulin, may well be applied to legal identity.
       Ye.V. Astapova uses expression «politico-legal identity», defining it as a system of specific (original) attributes of statehood manifesting themselves at the mental, politico-legal and ideological levels. The mental level is represented by language and symbolical features (state language, banner, emblem etc.), politico-legal level is expressed in form of government, in specifics of political and legal system, ideological level looks like system of values, evaluations and interests focused on national security protection.
       The reported representation differs by the fact that there lacks statement of individual psychological side, that is of place of individual in social community, and that not exactly conforms with traditions of research of identity in psychology as well as in other humanitarian disciplines (sociology, ethnology etc.).
       Yu.Yu. Vetyutnev defines legal identity as belonging of a person to one or another social community, that is possession of subjective rights and legal obligations connected with that possession . At that the author points out that a notion of legal identity is construed by him as the analogue of legal status in the context of sociology and anthropology of law.
       Such an approach appears to be more adequate because it reflects the notion of identity as of a pattern of mutual relation of individual with social group. But one cannot reduce the nature of identity, including legal one, to being of a person within a group and existence of his/her corresponding rights and obligations. In such interpretation, identity is really only one step removed from such phenomenon as social status. At that psychological content of identity passes completely unnoticed. Given that participation of individual in the activities of social group can be of a formal, superficial nature, at that rights and obligations can remain unrealized or be exercised

Reznikov Y. A notion of legal identity

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mechanically, by inertia, only slightly involving intellectual and emotional spheres of a person. In that case, it would seem, there is no reason to acknowledge presence of legal identity, though outwardly participation of person in community and legislative regulation of his/her behavior are present.
      I.L. Chestnov, speaking of social identity of legal subject, characterizes it as dialogic relation with social status and social group. Legal statuses, as I.L. Chestnov notes, more often than not appear in front of us ready for use, fully formed, and we are bound to take them upon ourselves, which, however, leaves open the possibility (even though hypothetical) of modifying independently those statuses in accordance with our aspirations. In that approach the most valuable thing seems to be accentuation of dialogic nature of identity and possibility of two-way, counter motion in the course of its formation, for not only social institutes in their legal form place demands on personality, but an individual himself by his active doings makes a contribution to his own identity.
      Special attention is deserved by the notion of legal identity proposed in the works by N.V. Isayeva, because the author goes beyond general definition of that notion or fragmentary remarks about its significance, but constructs on its basis rather a large-scale concept.
      N.V. Isayeva formulates that definition as follows: «Legal identity is a quality of subject of law characterizing its current state by way of legal self-determination in categories of rights, freedoms, obligations and responsibility taken as legal values providing positive legal consciousness and legal activeness».
      The version of that definition appears to be rather unfortunate by reason of cumbersome structure «a quality... characterizing its current state». The presence in it of terms «quality» and «state» looks rather superfluous because by virtue of their high-order generality they add hardly anything to characterization of legal identity. At the same time, the key idea of «legal self-determination» is completely applicable to legal identity, because it successfully emphasizes the active nature of identity and its regulatory properties, as well as being turned towards subject of law itself, and not towards some external objects.
      The notion of self-determination includes psychological and behavioural content of identity, but it is necessary to complement it with a properly legal, that is regulatory aspect of that phenomenon, otherwise its specifics will be omitted. But the analyzed definition expresses that connection not very appropriately. First, it is not quite clear what «self-determination in categories» means. Second, the term «category» itself, borrowed from academic vocabulary, means a notion of the top degree of generality. Consequently, the proposed definition means that legal identity requires presence in its bearer of a developed scientific thinking, which essentially limits the sphere of its potential subjects, practically narrowing them down to representatives of academic community. Third, with such an approach a notion of legal identity acquires radically subjective colouring because the nature of identity depends only on subject itself, its self-consciousness and relationship to law. A factor of external recognition, objectified forms of social cooperation and control is disregarded. For example, a person’s concept of his/her rights and obligations may not coincide with his/her real legal