Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law最新文献

{"title":"Universality of law as a basis for state-citizen consensus in the context of legal regulation and legal anticipation","authors":"K. Agamirov","doi":"10.17223/22253513/47/2","DOIUrl":"https://doi.org/10.17223/22253513/47/2","url":null,"abstract":"The article explores the basis of the relationship between the state and the individual in the relationship between legal regulation and legal anticipation. The legitimacy of legal regulation depends on the extent to which it corresponds to citizens' perceptions of law and, at the same time, the extent to which it protects national security. The universality of law, outlined in the article, makes it possible to eliminate the contradictions between the statism of positivism and the metaphysics of libertarian-legal theory. The universality of law makes it possible to integrate in the legal system the essence of the positivist doctrine and the properity of the libertarian-legal concept with a constructive outlet for the final rational that captures the infinite dialectical movement of legal matter. The positivist due reflects the formalised significance of the normative establishment and anticipates its realisation. Libertarian-legal proper predicts the optimal, reproducing the true essence of the norm. The rational transforms equality in ought (formal equality) into equality in being (actual equality), confirming the universality of law as an index of the circulation of legal matter from predetermined normativity (proper) to optimality (proper) and the final subject-practical expedient (rational). The methodology of the universality of law determines the existence in the legal system of obligatory and sufficient characteristics for the effective action of state and public institutions towards the protection of the constitutional order and respect for human rights, namely: a) The protection of national security and public safety; b) the retention of public power within the Hegelian \"boundaries of order\" - limiting its intrusion into the private sphere; c) the existence of inalienable rights and freedoms and guarantees for their realisation; d) the continuous modernisation of all parts of the legal system according to evolving political, socio-economic and spiritual-moral conditions. In this way, the interplay of national security and the directed development of the institutions of a free society is guaranteed, reflecting the coordinated mutual responsibility of public authorities and citizens. The concept of universality of law develops a polemic about the synthesis of positivist and libertarian-legal types of legal understanding with the predominant importance of the social vector of law as an intrinsic property of universality that contributes to the firm foundation of the rule of law and social state - human rights and freedoms and conditions of free development and dignified life. Normative legal acts pass through people's consciousness in one way or another and are legitimised depending on the correspondence, on the one hand, to the state's tasks of protecting national security and, on the other hand, to citizens' hopes for a decent life based on the universality of law as a guarantee of their communication and mutual self-restraint","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"182 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77213181","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"PRINCIPLES OF LEGAL RESPONSIBILITY: NEW CRITERIA FOR CLASSIFI-CATION AND SUBORDINATION","authors":"V. Sorokin","doi":"10.17223/22253513/33/2","DOIUrl":"https://doi.org/10.17223/22253513/33/2","url":null,"abstract":"The article conseders the idea of the necessity of ranking the principles of legal responsibility. Conflict among the principles of legal responsibilities are inevitablin the process oftheir  practical use. In this case, there should not be a compromise between legality and justice - a decision must be made in favor of justice. A conflict between justice and charity must be solved in favor of charity. Any conflicts among the principles of legal responsibility are hierarchical. Thus, any conflicts of principles of legal responsibility should be solved in favor of the principle of higher order.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"7 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74464051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Antimonopoly compliance as a circumstance which mitigates administrative responsibility","authors":"A. Y. Kinev","doi":"10.17223/22253513/43/5","DOIUrl":"https://doi.org/10.17223/22253513/43/5","url":null,"abstract":"The article deals with administrative compliance; the author studies this issue in circumstances which mitigate administrative responsibility. An assessment of the role of sources of legal regulation and standards mediating the formation of a system of internal compliance with the requirements of antimonopoly legislation and the practice of its implementation is given. When writing the article, the author examined the content of certain issues under the jurisdiction of the Federal Antimonopoly Service in terms of implementing its administrative and tort powers. An analysis of their content is carried out; the problems of practical importance, including an assessment of administrative compliance, are identified. The author used the following methods: system analysis, dialectical, logical, comparative, analysis and synthesis, induction and deduction. The following results were got: - mitigation of administrative liability creates a tangible legal incentive, while not restricting the effectiveness of administrative punishment, and an economic entity is given the opportunity to invest in the implementation of the compliance system for its improvement. The antimonopoly compliance can exclude the liability of the subject, provided that it implements all measures to prevent a violation; - organization of the antimonopoly compliance system should contribute to improving the efficiency and success of the activities of an economic entity at the expense of introducing a risk-oriented approach. The introduction of antimonopoly compliance can contribute to the increasing of the level of legality and success of the activities of an economic entity, and in the future antimonopoly compliance will be one of the most effective mechanisms for implementing state policy in ensuring law and order and legality, but a full assessment of the effectiveness of its application can be given only over time; - antimonopoly compliance will always be in demand, since management decision-making is carried out in the prism of assessing their impact on competition. There is also a simulation of the consequences, excluding violations of legislation,i.e. the subject acts already within the framework of the agreed antimonopoly policy; - adoption of the act on antimonopoly compliance does not mean its full functioning. Its adoption is followed by a whole range of elements of its implementation, enshrined in methodological recommendations (development of a risk map and of an action plan to reduce violations of antimonopoly legislation, as well as several other constituent parts of the system). The author declares no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"77 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79285825","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The constitutional principle of respect for the man of work: problems of implementation in Russian legislation and law enforcement practice","authors":"S. Chucha","doi":"10.17223/22253513/44/14","DOIUrl":"https://doi.org/10.17223/22253513/44/14","url":null,"abstract":"Respect for the working person is guaranteed by Article 75.1 of the updated Constitution of the Russian Federation. This constitutional guarantee has an external (formal) and an internal (substantive) side of implementation. On the basis of the theory of stability of labour law relations, the basic norms of this twofold system have been identified. 1. On the substantive side, the norms of stability of the employee as a party to the employment contract when the employer changes. The constitutional guarantee of respect for the human being at work is the stability of employment relations, secured mainly by Article 75 of the Labour Code of the Russian Federation. The provision of Article 75 of the Russian Labour Code is based on the theory of stability of the employment relationship, conditioned by the personal nature of the employment contract on the part of the employee, the foundations of which were laid at the turn of the 19th and 20th centuries. Today it guarantees the preservation of the employment relationship in the event of a change of ownership of the organisation, a change of subordination of the organisation or its reorganisation. Legislating the dependence of the employment contract on the employer's reorganisation measures would destroy the theory of stability and the system of constitutional and sectoral labour law guarantees of respect for the human rights of workers. Therefore, new forms of employment, the emergence of which is initially dictated by the needs of economic development and the state of society, should be consistently involved in the sphere of labour law regulation. The issues of the stability of the employment contract should be resolved exclusively based on the needs of the organization of production and in the interests of the enterprise. 2. From the external perspective, the basic provision in the system of guarantees of respect for the person at work is the form of the employment contract. Article 56 of the Russian Labour Code, defining the concept of an employment contract, as well as regulatory acts adopted in its development and the generally accepted practice of law do not comply with Article 75.1 of the Constitution of the Russian Federation and Article 57 of the Labour Code. The inclusion of information about the employee after information about the employer in the employment contract underlines the unequal position of the employee, even if formally, but clearly demonstrates the lack of respect for the employee not only on the part of the employer concluding the contract but also on the part of state authorities which have permitted the publication of regulations contrary to Article 57 of the LC RF. 57 of the Labour Code and provoking the employer to violate the guarantee of Article 75.1 of the Constitution of the Russian Federation. Considering the ethical nature of Russian legal understanding, Article 56 of the LC RF and the standard forms of employment contracts must be immediately brought into compliance w","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"1 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87970973","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Selected issues in the organisation of prosecutorial oversight of the legality of procurement activities as exemplified by the practice of the Tomsk Oblast Prosecutor's Office","authors":"A. Marinicheva","doi":"10.17223/22253513/43/11","DOIUrl":"https://doi.org/10.17223/22253513/43/11","url":null,"abstract":"Organization of prosecutorial supervision over the legality of procurement involves: collecting, analysis and processing of information on the state of procurement activities in a particular region; developing goals and objectives of prosecutorial supervision in procurement activities; planning work on the direct supervision of the state of legality, including conducting prosecutorial checks (scheduled, unscheduled); implementation of materials and results of conducted inspections and supervision activities; adjustment of the existing prosecutorial. One important aspect of the organizational activities of the Prosecutor's Office in overseeing the legality of the implementation of state and municipal contracts is to ensure proper interaction with public authorities and local authorities exercising powers in this area. The main forms of interaction are: Exchange of relevant information by the agencies concerned. In turn, prosecutors inform public authorities about the state of lawfulness, fight against crime and offences in the field of protection of entrepreneurs' rights in the implementation of state and municipal contracts. Proactively informing the prosecutor's office on the facts of revealing corruptogenic provisions in the legal acts regulating relations in the contractual sphere. Joint participation in preparation of regulatory legal acts concerning observance of entrepreneurs' rights in implementation of state and municipal contracts at the level of regional and local representative bodies. Participation of prosecution authorities in meetings of public authorities, local authorities, committees, working groups, as well as coordination, inter-agency meetings of heads of law enforcement agencies and authorities. The author declares no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"74 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89375627","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rethinking the purpose of the institution of obligations from causing harm in modern conditions","authors":"T. Shepel","doi":"10.17223/22253513/42/16","DOIUrl":"https://doi.org/10.17223/22253513/42/16","url":null,"abstract":"There are several types of obligations and infliction of harm: a) a tort obligation, the basis of which is a tort; b) an obligation to inflict harm by lawful conduct; c) an obligation to inflict harm by the wrongful conduct of incapable citizens; d) an obligation to suppress activities that create a risk of harm in the future, which can only conditionally be attributed to obligations to inflict harm. Among the types of obligations from the infliction of harm, the doctrine does not name obligations to compensate \"non-contractual\" losses. However, the Civil Code of the Russian Federation provides for many rules on their compensation: in case of abuse of right; in case of invalidity of transactions; in case of bad faith conduct of the parties in negotiations on the conclusion of the contract, etc. Determining the nature of the obligation to compensate for such losses depends on understanding the relationship between damages and losses. Different views have been expressed in the literature. We consider damage to be a generic notion, while damages are a kind of it, a monetary form of damage. The nature of damages is also ambiguously understood in the doctrine. There is an opinion that damages are not a measure of liability and that they represent any loss in property. We believe that a broad understanding of damages contradicts the law and judicial practice. The nature of the obligation to compensate extra-contractual damages has not been sufficiently explored in the doctrine. It has certain features inherent to the obligation of infliction of harm: 1) it arises upon infliction of harm (losses); 2) it is pecuniary; 3) it is subject to the principle of full compensation for damages; 4) not only the one who inflicted the damage, but also other persons may be obliged to compensate losses; 5) its execution is performed in favor of the victim; 6) it is relative, legal relationship of active type, one-sided. At the same time, the obligation to compensate extra-contractual losses has peculiarities: 1) the basis for its emergence is only a tort with full composition; 2) it arises in violation of relative, not absolute, civil rights, such as corporate rights; 3) compensation for extra-contractual losses is conditioned by infliction of damage only to property rights; 4) it applies only measures of responsibility - compensation for damages; 5) this obligation is always pecuniary. Chapter 59 of the Civil Code is not designed for a variety of cases of non-contractual damages, in the norms of this chapter the tort is understood narrowly, as direct infliction of harm to life, health or things, but not the relative property rights of the victims. Special torts have long been known. There is none among them that could be applied to the named cases of extra-contractual damages. A rethinking of the purpose of the institute of obligations from the infliction of harm, giving it a universal character, is required. Measures are proposed to improve the rules of Chapter 59 of","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"12 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75072561","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Transformation of Russian counter-terrorism law in the context of globalization","authors":"S. Kochoi","doi":"10.17223/22253513/43/6","DOIUrl":"https://doi.org/10.17223/22253513/43/6","url":null,"abstract":"The article shows the creation and development of modern antiterrorism legislation in the Russian Federation. It is noted that the period of its formation coincided with the involvement of the post-Soviet Russian Federation in the process of globalisation, an inherent feature of which is the integration and unification of the legal systems and national legislations of individual states. According to the author, convergence of national anti-terrorist legislation of those states involved in countering transnational, global international terrorist organizations, such as the Islamic State banned in the Russian Federation, seems particularly important. The process of adjustment of the Russian national legal system to needs of counteraction to terrorism (external and internal), its transformation both taking into account features of the international, and foreign legal experience of counteraction to terrorism is considered. The current strengthening of responsibility for terrorist crimes in the Criminal Code of the Russian Federation in many cases should be seen as a manifestation of global trends in combating terrorism. Not only the tightening of sanctions for terrorist activity, but also the addition of new anti-terrorist norms to the Criminal Code of the Russian Federation is proposed to be regarded as one of the results of integration processes in national law. Despite the steps taken to transform Russian counter-terrorism legislation, its approximation and integration with international and foreign law, the process of globalisation in this field is not complete. It is concluded that the transformation of the Russian Federation's anti-terrorism law (the relevant counter-terrorism legislation and the relevant criminal law norms) must be continued in order to further its involvement in the effective counter-terrorism response in general - international law in the first place. Terrorism has long ceased to be perceived as a local threat, so the internationalisation of counter-terrorism is one of the manifestations of globalisation in law. However, globalisation, which is a catalyst for the convergence of legal systems and national legislations, does not mean that the transformation of national law must necessarily lead to the dismantling of legal institutions and traditions successfully applied in the practice of law enforcement agencies and courts of states. The author declares no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"10 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84192546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Development of legal provision for environmental security of the Russian Federation in the context of implementing sustainable development goals","authors":"Elena A. Sukhova, E. Abanina, Marina A. Alcova","doi":"10.17223/22253513/43/14","DOIUrl":"https://doi.org/10.17223/22253513/43/14","url":null,"abstract":"One of the urgent tasks in the field of sustainable development that requires a systemic solution is the protection of the population, its health and wellbeing from hazards emanating from the environment. This necessitates the formation of a coherent system of legal provision for environmental security in Russia. Despite the fact that the provisions of regulatory legal acts of the Russian Federation in general allow to ensure the implementation of all 17 Sustainable Development Goals, the study revealed the lack of unified ideas at the state level about the system of legislation in the field of environmental security and the mechanisms of its implementation. The authors recognize the confusion of the concepts of \"ensuring environmental security\" and \"environmental protection\", as well as the goals and objectives facing them, as a key problem. This, in turn, causes the lack of a clear delimitation of powers in the sphere of environmental protection and in the sphere of environmental security, as well as of lawmaking powers between the Russian Federation and its constituent entities in the legislation. The authors draw attention to the importance of improving the legal provision of environmental security at the level of RF subjects, since it is in the regional law-making process that it is possible to take into account the real state of environmental security, identify possible threats and develop the necessary legal means. The lack of an effective mechanism for cooperation between lawmaking bodies and the public in developing policies, plans, programmes, and laws and other regulations in this area is not conducive to harmonious development of legal support for environmental security. At the same time, the Sustainable Development Agenda emphasizes the importance of uniting efforts of all stakeholders to implement the SDGs. The article substantiates the conclusion that the adoption of the Federal Law \"On ensuring environmental security\" can contribute to the solution of these problems. Its goals should be: to establish a legal basis for ensuring environmental security; to protect the rights and legitimate interests of citizens, society and the state from the negative consequences of the impact of altered environment; to promote sustainable development of the Russian Federation. This law is proposed to establish a unified terminology, principles, and structure of legislation in the field of environmental security. The following are proposed as the main directions of ensuring environmental security: information support of activities in the field of environmental security, rationing in the field of environmental security, assessment and prevention of threats to environmental security, elimination of the consequences of dangerous environmental situations. Contribution of the authors: the authors contributed equally to this article. The authors declare no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"85 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80425679","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The status of artificial intelligence: from object to the subject of legal relations","authors":"E. Vavilin","doi":"10.17223/22253513/45/10","DOIUrl":"https://doi.org/10.17223/22253513/45/10","url":null,"abstract":"Artificial intelligence systems (AI), being, on the one hand, an object of law, in the course of their vital activity, can gain independence and perform legally significant actions without human participation. This testifies in favor of giving AI the status of a subject of law, since it requires the establishment of appropriate mechanisms of responsibility, the limits of implementation and protection of AI rights. In the light of the posed problem, the controversy about the recognition of AI as the author of the works created by it is indicative. Most foreign legal orders do not recognize the authorship of \"non-human\" creativity, giving the status of authors to AI developers. Domestic researchers, as a rule, also insist on the impossibility or absence of the need to recognize AI as the subject of relations in using the results of intellectual activity of AI. In case the works created by AI are recognized as public domain, the developers are deprived of the incentive, and the objects themselves - of potential negotiability. When the possessor of exclusive rights to the results created by artificial intelligence systems is recognized as its owner or tenant at the time of creation of the work, several problems associated with both the monopolization of this sphere and possible abuses of rights arise. Regarding such entities, it can only be a question of special legal personality because of the competences of electronic persons, their importance and role in civil circulation. The solution in this case may be the development of a legal regime in which the developers of units capable of creating works are recognized as the authors of the unit and receive remuneration for its creation and use, but copyright and exclusive rights to the works created by them must be assigned to the electronic person, along with the obligation of mandatory tax deductions from the profits received and compensation for the losses caused to them, if they occur. Thus, when deciding on the legal status of AI, it is necessary to recognize, on the one hand, an artificial intellectual system as an object of copyright, on the other hand, its direct functioning by a relatively independent participant in civil law relations, since it has signs that allow it to be endowed with the status of a subject. AI, being at the stage of creation an object of intellectual property of software developers, after appropriate certification and state registration, can be endowed with the status of a subject of law. Attention should be paid to the special nature of the legal capacity and legal competency of an electronic person. The author declares no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"1 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89241517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"On the State Structure of the Federal Republic of Germany at the adoption of the Basic Law of 1949","authors":"Nadezhda G. Geymbukh","doi":"10.17223/22253513/44/3","DOIUrl":"https://doi.org/10.17223/22253513/44/3","url":null,"abstract":"The article deals with the issues of state structure of the Federal Republic of Germany discussed in the process of adoption of the Basic Law of 1949. The author examines the constitutional and legal situation within which the Basic Law of the FRG was adopted, analyses in detail the ideas of leading constitutionalists on the issues of state structure that were discussed in the process of drafting the Basic Law of the FRG. Germany's partition was initiated by the West. Recently disclosed archive documents show that Germany's split was predetermined already in the course of the war at the meetings of the \"Big Three\" - the USSR, the USA and Britain. Then they were joined by France. The accusations that the Soviet Union was responsible for the split of that country are untrue. On the contrary, in the first post-war years, the Soviet government proposed free elections in both parts of Germany, on the condition that the united country would be neutral, that is, would not be part of any military blocs. The West rejected this proposal. The Soviet government has repeatedly stated that Germany must be seen as a single economic and political entity. The position of the Soviet Government is supported by the views of scholars of Soviet state law. The question of German state unity was widely discussed at that time in Soviet periodicals. Soviet scholars L. Bezymensky, B.S. Mankovsky, D. Melnikov, D. Monin, E. Tarle and I. Traynin were in favour of a united German state. On this basis, they concluded that the rejection of the political unity of Germany was directed against the democratic restructuring of the country. A dismemberment of Germany is in the interest neither of the German people, nor of the democratic countries of Europe. Only the re-establishment of a united Germany is in the interest of a lasting peace in Europe, consistent with the historical development of the country and the legitimate aspirations of the German people themselves. There were differences of opinion about the future state structure of Germany. The position of prominent Soviet jurists differed fundamentally from that of Western politicians and jurists. The Western allies were in favour of a federal Germany, while the Soviet scholars were in favour of a unitary form of government. Thus, Germany, divided first into four occupation zones, and then into American and Soviet zones of influence, which not only lost considerable territories, but also completely lost its international standing, ceased to exist as a unified nation state for many years. Two independent states, the Federal Republic of Germany and the German Democratic Republic, were created on German territory. There was a de facto split into two states, which found themselves in different military and political blocs. Since that time, all the aspirations of West and East Germans have been directed towards the unification of Germany and the reunification of the German people. The author declares no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"22 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89426659","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}