Courier of Kutafin Moscow State Law University (MSAL))最新文献

{"title":"Discretionary Administrative Acts in Judicial Practice: Comparative Legal Analysis","authors":"О. N. Sherstoboev","doi":"10.17803/2311-5998.2024.117.5.174-182","DOIUrl":"https://doi.org/10.17803/2311-5998.2024.117.5.174-182","url":null,"abstract":"When administrative authorities exercise discretion, they have a kind of freedom to choose one decision. Such freedom however has never been complete due to the fact that laws have limited it. Thus, courts are often faced with the problem of assessing the legality of such decisions. The article has presented the criteria for such the assessment. However, this article demonstrates decisions from different countries. Since their judicial reasoning is largely similar, such judgments can be compared with each other. Similar reasoning also allows to formulate the foundation of a “general theory of administrative discretion”. This foundation is the same for many legal systems, but each contains distinctive features of this theory. Among the evaluation criteria, compliance with legal rules, (legality), achievement of governance goals, compliance with procedural requirements, as well as material grounds are highlighted. To evaluate discretionary acts, courts must use legal techniques. Authorities sometimes published “reference solutions” that can serve as guidelines for administrative authorities who are forced to exercise their discretion.","PeriodicalId":508920,"journal":{"name":"Courier of Kutafin Moscow State Law University (MSAL))","volume":" 16","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141832888","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 management of digital transformation of education in the context of the implementation of constitutional amendments","authors":"A. A. Korneev","doi":"10.17803/2311-5998.2024.117.5.208-215","DOIUrl":"https://doi.org/10.17803/2311-5998.2024.117.5.208-215","url":null,"abstract":"The amendments to the Constitution of the Russian Federation, which came into force following the results of the all-Russian vote in July 2020, directly affected issues of public administration in education. These constitutional amendments refer to the jurisdiction of the Russian Federation to establish a unified legal framework for the system of education and upbringing, including continuing education. At the same time, the strategic directions for the development of the state outlined by the President of the Russian Federation after the publication of amendments to the Constitutiondetermined the need to achieve digital maturity of key sectors of the economy and the social sphere, including education. The article examines the issues of managing the digital transformation of education based on the constitutional thesis on the continuity of education, as well as taking into account the principle of unity of education and upbringing established at the legislative level, the unity of the educational space on the territory of the Russian Federation.","PeriodicalId":508920,"journal":{"name":"Courier of Kutafin Moscow State Law University (MSAL))","volume":" 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141832644","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":"Anthology of Administrative Discretion","authors":"D. I. Zaitsev","doi":"10.17803/2311-5998.2024.117.5.118-124","DOIUrl":"https://doi.org/10.17803/2311-5998.2024.117.5.118-124","url":null,"abstract":"The article analyzes scientific works that had a significant influence on the genesis and evolution of the theory of administrative discretion: “The Spirit of Law” by Charles Montesquieu (1748), “Introduction to the Study of the Law of the Constitution” by Albert Dicey (1885) and “Public Administration and the Public Interest” by E. Pendleton Herring (1936). It is shown that initially administrative discretion was understood as reasonable (rational) activity of executive authorities and their officials, then administrative discretion began to be opposed to law as such, and recently it is increasingly interpreted as creative activity of the government in the framework of anticipatory discretionary regulation. Special attention is paid to the continuity and expansion of the above ideas, their development in the concepts of other researchers, including modern ones, as well as their criticism. The conclusion is made that these ideas should be taken into account in the formationof the Russian theory of administrative discretion.","PeriodicalId":508920,"journal":{"name":"Courier of Kutafin Moscow State Law University (MSAL))","volume":" 67","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141833613","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 stable relevance of the study of the administrative","authors":"M. Е. Trufanov","doi":"10.17803/2311-5998.2024.117.5.159-164","DOIUrl":"https://doi.org/10.17803/2311-5998.2024.117.5.159-164","url":null,"abstract":"The article analyzes the problem of the content of the legal defi- nition of “administrative law enforcement act”. Based on the conducted re- search, the author substantiates that an administrative law enforcement act is a qualified act of a competent entity based on the law, affecting the state of administrative and legal relations, aiming to cause certain legal consequences and expressed in a documented specific legally authoritative command. The author notes that the study of a significant amount of legal literature indicates the absence of a unified approach among scientists on quantitative and qualitative criteria of administrative law enforcement acts. The trend of modern administrative and legal relations and the change of priorities in legal regulation certainly affect the complex of functions of an administrative law enforcement act, which can only be conditionally called a system, which certainly preserves the inter","PeriodicalId":508920,"journal":{"name":"Courier of Kutafin Moscow State Law University (MSAL))","volume":" 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141832729","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":"Features of management decisions in enforcement agencies","authors":"N. Bakurova","doi":"10.17803/2311-5998.2024.117.5.054-063","DOIUrl":"https://doi.org/10.17803/2311-5998.2024.117.5.054-063","url":null,"abstract":"The article examines the features of managerial decision-making in such public authorities as enforcement agencies. The author considers management decisions in enforcement agencies from the point of view of the phonomena of their legal status, in particular, as a tool for ensuring the enforcement of an authoritative decision of a judge, judicial authority, other public authority, official in relation to a single legal entity: a citizen, an organization, a public authority. This proves the importance of the role of management decisions in ensuring human and civil rights as the highest value, authoritative publicly significant decisions on the scale of the entire state. Adhering to a broad interpretation of the definitions of the concepts of “public administration”, “act”, the author comes to the conclusion that the management decision — this is a process that requires formalization, and which permeates the entire activity of the enforcement authority, in particular and mainly, illustrating the process of enforcement proceedings, asserts that a management decision accompanies it from the moment of receipt of the enforcement document to its completion, says that as long as the state exists, it will need tools for the enforcement of authority decisions, and therefore in a management decision. According to the author, a legally significant managerial decision of the enforcement body, its official, is based on a triad of conditions on the basis of which it is made: legislative, jurisdictional, competent; it takes the form of a legal act of management, the main of which is a resolution. In addition to resolutions, the author names such forms of management decisions as a request, a bilateral act and others, arguing his position from the point of view of a broad understanding of the term “act”. The author comes to the conclusion that the adoption of a managerial decision in enforcement proceedings is a vivid example of a combination of administrative procedure and specific administrative and jurisdictional proceedings, characteristic only of a bailiff conducting enforcement proceedings, in the unity of conditionally allocated types of administrative procedural activities.","PeriodicalId":508920,"journal":{"name":"Courier of Kutafin Moscow State Law University (MSAL))","volume":" 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141833185","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":"Information features of management decisions in the system of public authority","authors":"B. Rossinskiy","doi":"10.17803/2311-5998.2024.117.5.036-044","DOIUrl":"https://doi.org/10.17803/2311-5998.2024.117.5.036-044","url":null,"abstract":"The article considers the formation of two management systems after the adoption of the Constitution of the Russian Federation — the system of public administration and the system of local government. The conceptual peculiarities of managerial decision-making in both systems are investigated, and the conclusion is made about the differences in the configurations of the channels of their information links. The advantages and disadvantages of the public administration system as a centralized system based on cybernetic principles, as well as the positive and negative aspects of the synergetic nature of the local government system are analyzed. As public administration systems need a certain decentralization of management, so local government systems cannot do without orientation on a number of issues on centralized commands. It is concluded that in Russia for a long period of time there was no proper information interaction between the system of public administration and the system of local government. It is noted that the appearance in the Constitution of the Russian Federation of part 3 of Article 122 of the Constitution of the Russian Federation determined not only the existence of a unified system of public power, but also the existence of an integral system of governance, the capacity of which to make effective management decisions is higher than the total capacity of the previously existing self-sufficient systems.","PeriodicalId":508920,"journal":{"name":"Courier of Kutafin Moscow State Law University (MSAL))","volume":" 15","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141833469","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":"Prerequisites of the principle of federalism in the legal regulation of administrative responsibility (on the example of managerial decisions)","authors":"T. Z. Zokirov","doi":"10.17803/2311-5998.2024.117.5.199-207","DOIUrl":"https://doi.org/10.17803/2311-5998.2024.117.5.199-207","url":null,"abstract":"This article considers the prerequisites for the emergence of the principle of federalism in the legal regulation of administrative responsibility in the unitary Russian state before 1918, in terms of the development and continuity of managerial decisions in proceedings on cases of administrative offenses as a mechanism for the implementation of administrative responsibility. The thesis about the isolation of administrative responsibility in the public law of the pre-revolutionary Russian state is taken as a basis. Attention is paid to the forms of individual managerial decisions, through which arise, change and terminate protective administrative-procedural relations, which were provided for in the Russian legislation and legal acts of local authorities. The conclusion is made about the presence of continuity in the development of administrative decisions in the relevant sphere in the Russian Empire, RSFSR and the Russian Federation.","PeriodicalId":508920,"journal":{"name":"Courier of Kutafin Moscow State Law University (MSAL))","volume":" 14","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141833015","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":"Public Management Discretion and Public Management Decision to Engineering, Testing and Application of Legal Innovations","authors":"M. Degtyarev","doi":"10.17803/2311-5998.2024.117.5.108-117","DOIUrl":"https://doi.org/10.17803/2311-5998.2024.117.5.108-117","url":null,"abstract":"The article is devoted to the topic of the significance and complexity of the managerial decision on the engineering, testing and application of legal innovations. In the author’s opinion, many problems of legal and legal-digital innovation are reduced to the ambiguity of their functional-target load and very high difficulty of confirming that they are really needed, to the extreme difficulty of predicting their implementation. And it is this that complicates the adoption of an appropriate managerial decision. Managerial decision on legal innovations, due to the crystallization of the substrate of managerial discretion in it, always entails a high responsibility for its adoption. The author points out that there are no unified generally recognized ways of operating activities in the field of legal innovation and management of the corresponding innovation process. But there are some general management principles and requirements that are quite transferable to this sphere. The author substantiates that with all the significant differences between the private market legal sector and the public administration sector, in making a decision on the development, testing and implementation of legal and securing legal and digital innovations, both managers — the head of a public authority and the head of a commercial firm — are placed in similar conditions. The author in his article articulates the problem of time resource, objectively required for what is presented as a “legal innovation” to really become a legal innovation and a good legal innovation. According to the author, legal innovation is not a quick process, and it is not a one-time phenomenon, but a responsible discretion in making the appropriate managerial decision — it is always objectively time-consuming. The author raises the question that any innovation, and legal innovation in particular, has its own life cycle, at the end of which it outlives itself, exhausts its potential for innovation. Although there are legal innovations that have transformed into legal axiomatics and traditional legal everyday tools. But in any case, we talk about legal innovations without disconnecting from time, from its flow, from the notches on its scale. The author declares the article as posing a scientific problem, but at the same time the author offers a conceptual answer to some of such questions.","PeriodicalId":508920,"journal":{"name":"Courier of Kutafin Moscow State Law University (MSAL))","volume":" 22","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141833231","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":"Digital Transformation in Management Decisions of the Administrative Licensing Procedure in the Russian Federation","authors":"L. Standzon","doi":"10.17803/2311-5998.2024.117.5.091-099","DOIUrl":"https://doi.org/10.17803/2311-5998.2024.117.5.091-099","url":null,"abstract":"One of the forms of realization of public power is managerial decisions that apply to all spheres of public administration. Licensing is the most important administrative procedure. It is aimed at preventing threats and possible damage to economic relations, environmental protection, public health, social relations, defense and security of the state, the potential for which is associated with the implementation of certain types of entrepreneurial activity. This article discusses such a type of management decision, which is aimed at optimizing the management process. Digitalization involves improving and changing the model of the administrative licensing procedure. Special attention is paid to such a digital solution as the implementation of the registry model of a management solution. This made it possible to significantly simplify the administrative licensing procedure, reduce its time, as well as to conduct most of the interaction with the licensing authority remotely. The author notes the positive impact of digital transformation on the management decision-making process in the field of licensing, and also proves that the use of technology has made it possible to increase efficiency and automate most of the management processes in the administrative procedure. In conclusion, the author notes the prospects for the modernization of Russian legislation in the field of licensing and argues for proposals for its improvement.","PeriodicalId":508920,"journal":{"name":"Courier of Kutafin Moscow State Law University (MSAL))","volume":" 41","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141833287","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":"Russian Pravda as a primary source of administrative law and process in ancient Russia","authors":"S. I. Gridin","doi":"10.17803/2311-5998.2024.117.5.142-149","DOIUrl":"https://doi.org/10.17803/2311-5998.2024.117.5.142-149","url":null,"abstract":"Russian Truth is the oldest monument of the law of feudal Rus’. It reflects the growth of princely power and the expansion of the princely court. This study is devoted to identifying the features of law and legal proceedings in this era. Like the ancient Laws of the XII tables in Ancient Rome and the Babylonian laws of King Hamurabi (Hamurabi), to which our study was devoted. Russian Truth is also a judge. In it we meet the rules of law, which we now call administrative law and process. Separate historical epochs are mixed up in Russkaya Pravda, there is no systematization of norms. A separate part of the truth is called “The Court of Yaroslav Vladimirovich.” Russkaya Pravda does not give us a complete account of the organization of the princely court. Separate princely decisions became the norm for subsequent court decisions. So, the prince sets penalties for killing people depending on their position. Pravda Yaroslavichi forbids blood feuds and introduces a fine instead. Litigation under Russkaya Pravda is adversarial, which establishes pre-trial procedures. The relationship between the plaintiffs and the defendants is clarified. This order is called “arching” and “persecution of the trace.” Competitiveness arises from those forms of struggle that existed even in a tribal society, when relations were sorted out by force. The study showed that the law according to Russian Pravda has gone ahead of the primitive customs of more ancient times and represents a developed system, where there was a court, a process, a system of evidence and punishments.","PeriodicalId":508920,"journal":{"name":"Courier of Kutafin Moscow State Law University (MSAL))","volume":" 46","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141833207","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}