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Legal thought: history and contemporarity
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3–23
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Muromtsev Gennadiy - Professor, Peoples' Friendship University of Russia, Doctor of Juridical Sciences. E-mail: kafedra-teoria@yandex.ru Address: Miklukho-Maklaya St., 6, 117198, Moscow, Russian federation The aim of the article is to decide to what extent the modern Russia needs corpus juris. It examines the differences in interpreting corpus juris by legal scholars studies the reasons for a late codification of the legislation in the Russian Empire compared to the Western countries and develops proposals. The article contains the evaluation of corpa juris adopted in Western countries (Spain, Italy, Sweden, Denmark) in 13 – 18th centuries. It analyzes the attempts to codify the legislation in the Russian Empire, the USSR and the modern Russia. The failures of these attempts for a 300 year period are traced and revealed. Soft spots of the Russian Empire corpus juiris drafted by M. Speranskiy are discussed. As a conclusion, the author points to the following political and legal as well as psychological features. Originally, until the beginning of the 19th century corpus juris was hindered by the main obstacle - a weakness of Russian legal tradition, lack of settled to some extent understanding of the purpose and functions of the corpus. Later in the20th century, the factors were affected by deep social turbulences having strengthened by politization of law and later its ideologisation in the totalitarian one-party state. The directional guidelines of the party dominated the law for a long time and party and state dominated the law. Due to these factors, the level of legal thought and tools started decreasing and hence each of projects of codification developed in the 20th and 21st centuries has seriously lagged behind from the needs of the country and as a result was declined. Now, in the 21st century little has changed. The country still lacks a clear consistent conception of legislation, which does not provide for any necessary theoretical basis for creating corpus juris. The author adds that in the epoch of information society, the need in a cumbersome and expensive corpus juri has significantly reduced. Society and state need a system of notification on the acting legislation branch classificators, indexes and time indexes. |
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24–43
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Syukiyainen Leonid - Professor, Department of Theory and Law and Comparative Law, National Research University Higher School of Economics, Doctor of Juridical Sciences. Email: leosyk@mail.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The article analyzes a number of principles of Islamic legal thought in the context of Islamic extremism and terror which poses a threat to the security of many countries including Russia. The sources referred to in the paper are the Qu'ran, works of Muslim lawyers and theologians, quotations of the representatives of Muslim communities, decisions of Islamic public associations. The publication shows that the ideological component is especially relevant to the phenomenon in question. The author draws attention that Sharia and Islamic jurisprudence has accumulated multiple controversial ideas and concepts which aim to regulate the fundamentals of law and power, the status of adherents of different faiths should be determined by acceptable means of political struggle. Many of them are obsolete but the Muslim doctrine characterized with traditionalism can not ignore them. Some of the principles contain provisions applicable to justify extremist actions, inter alia the lack of tolerance to kafirs and the right of Muslims to kill them. However, the Muslim ideology opposes international terrorism by nature. Decisions of the leading centers of Islamic legal thought reject doctrinalism, i.e. fiqh often interpreted without historical context. In particular, many Muslim lawyers and theologians do not associate jihad only with military fight against kafirs, as it should contribute to the self-development of Muslim society. Legitimate jihad should not be the source of profit, conquering property and territory of non-Muslims. The article stresses that some Muslim law countries have approved laws to fight terrorism. The author concludes that legal and ethical ideas proposed by Islam can and must be applied to fight religious extremism and international terrorism. |
Russian law: conditions, perspectives, commentaries
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44–56
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Galperin Mikhail - Assistant Professor, Department of Judicial Power and Justice, Law Faculty, National Research University Higher School of Economics, Head of the Department of Administration and Control in the area of Enforcing Judgements, Russian Ministry of Justice, PhD (law). E-mail: galper@yandex.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The article studies responsibility in civil proceedings and a new analysis of legal responsibility as well as its place in the system of civil proceedings. The article argues that the problem of procedural responsibility in civil proceedings though being studied for almost four decades, has not been considered as an integral and consistent conception of procedural liability in civil proceedings. The discussion on civil proceedings liability which has been conducted within the dominating in Russian law theory conception of subject matter and methods of the illegal branch has reduced to the battle of terms, i.e. legal scholastics. In the author’s opinion, the traditional subject matter and methods of civil procedural law cannot be grounds for making up a special civil procedural liability and moreover be the basis for modeling an efficient mechanism of responsibility in civil and arbitration processes. Specific features of the mechanism of legal liability in civil proceedings (corpus delicti, measures of liability and the order to implement them, grounds to release from liability) are conditioned with a specific civil proceedings regime which includes not only the principles of civil proceedings integral to procedural activity but the goals of civil proceedings, terms to implement rights and obligations of subjects. The category of civil proceeding is recommended for consideration on the basis of the principle of legal proceedings as an element of civil proceedings. Hence, civil proceeding liability is a liability for contempt of court, nonperformance of its instructions. |
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57–64
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Kalpin Alexander - Professor, Department of Civil Law, Law Faculty, National Research University Higher School of Economics, Doctor of Juridical Sciences Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. The article deals with the development of legal activity in modern Russia especially on the structural reform of the railway transport. The article outlines the current status of this transport as a natural monopoly and its services. Joint Stock Company "Russian Railways" comprises three functions, i.e. the carrier of goods and passengers, the owner of railway equipment and the owner of the entire infrastructure of Russian railways. The article describes the vector of the reform of the 2010s as it promotes to the economically sound transition of the railway transport as a natural monopoly to the competitive environment. The norms of the latest legislation separate the functions of the JSC and are to be performed by different subjects on the contractual basis. In this respect, the balance of the limits of responsibility and guilt of the carrier has been studied. The drawbacks of the legal regulation as to utilizing railway infrastructure are revealed. The author supposes that the regulation of this subject should be based on the principle of dual use and mixed contract. The article analyzes the causes and effects of the slow implementation of the reform. The author stresses that the legislation and by-laws have a vague description of public relations. In particular, it relates to the contractual nature of transport services. It causes a weak development of remunerative services within the branch. The article criticizes asyncronisity of adopting legal acts of different levels, contradictions between local acts and specific codes including the RF Civil Code. The author makes a conclusion on the necessity to harmonize legal regulation of rendering services by all the transport modes though adopting a single codified act on all the transport modes seems unnecessary according to the author. |
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65–72
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Shatalov Alexander - Professor, Department of Judicial Power and Justice, Law Faculty, National Research University Higher School of Economics, Doctor of Juridical Sciences. E-mail: asshatalov@rambler.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The author considers criminal maintenance as a prerequisite for investigating crimes relating to corporate seizure. Having outlined the major trends in criminal process maintenance, he defines it as a complex of organizational, legal, information measures intended for teaching and applying criminal study knowledge (instructions) and methods in the activity of investigation, operational investigations and expert departments of the RF internal affairs bodies as their employees are assigned with revealing, and preventing such crimes. The illegal seizure of a corporation is understood as an illegal way of acquiring commercial organizations. Its aim is to acquire rights to the possession and powers relating to them by means of violation, threat to use violation or fraud. Nowadays, appropriate criminal process maintenance is one of prerequisites for a successful investigation, with a significant increase in the number of crimes aimed at illegal corporate seizures. The article develops the idea that this maintenance may efficiently promote to making the investigation unbiased and find out all the circumstances of the illegal seizure. The range of crimes aimed at the seizure is wide. Their list will lack completeness, as the crimes vary qualitively and quantitavely. This circumstance has let the author restrict to distinguishing only key guidelines as to criminal maintenance of investigation of all such crimes as a group of criminal deeds. Hence, the article examines general questions of investigating corporate raids, legal and information maintenance as well as use of special knowledge. |
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73–87
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Mishina Ekaterina - Deputy Director of the Institute of legal Research at National Research University Higher School of Economics, Assistant Professor, Department of Constitutional and Municipal Law, PhD (law). E-mail: e.mishina@gmail.com Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. |
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88–99
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Chaplinskiy Alexander - Post-graduate student Department of Constitutional and Municipal Law, National Research University Higher School of Economics.E-mail: chap-aleksandr@yandex.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The article deals with the nature of self-regulation, structure and functions of the institution of self-regulation of three professional communities acting in the area of the RF justice., i.e. judges, lawyers and notaries. The sources for the analysis have been RF federal laws, rules and other normative documents of the communities. The analysis has generated a classification of self regulation acts. The author arranges them in the following groups: acts determining rules of conduct of the community members, 2) acts of organizational character, regulating self-regulating bodies of the communities, 3) auxiliary acts (statutes on awarding, competitions and implementing social guarantees, professional education of the representatives of such communities etc. The paper also examines the essence and role of these acts in regulating professional activity of Russian practicing jurists. The author challenges an established but erroneous view of self-regulation as a phenomenon of private law which exists only outside the area of public power. He observes that implementing public power involves not only imperative but dispositive origins. He argues that dispositive origins are natural and vital which are a prerequisite for a proper functioning of state. The activity of judges, lawyers, and notaries public without any independence is of no sense. An example is self-regulation of their communities. It provides judges with some independence from the two other branches while lawyers are not provided with this privilege. As a result, self–regulation has been developing mainly among lawyers. Communities of judges and notaries public show a rather level of self-regulation. For example, the community of Russian notaries makes decisions in cooperation with RF Justice Ministry or coordinates them with the deputies of the minister. This situation leaves much to be desired according to the author. |
Law in the modern world
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100–111
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Yumashev Yuriy - Professor, Department of International Law, Law Faculty, National Research University Higher School of Economics. Doctor of juridical Sciences. E-mail: mejpravo@hse.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The subject matter of the article is the EU immigration policy applied to third country nationals (TCN). The main aspects of the policy are considered: humanitarian policy, national security policy, and various legal tools of its implementation. In particular the author considers the Geneva Convention, 1951 and the New York Protocol, 1967 relating to the status of refugees, the clauses of the Treaty on the Functioning of the EU regulating «area of freedom, security and justice» (title V), Schengen Conventions, 1985, 1990, related acts of the EU secondary law. The article describes specific features of the modern EU visa regime, measures to protect refugees including the implementation of right to political asylum, forming the policy as to third party countries migrants. As to the humanitarian aspect of the EU immigration policy, its moral essence – the respect for human dignity is emphasized. The article shows that the reunification of family members into local communities is an integral part. The means of integration are represented with examinations (tests) in the state language, history and culture of the country. Protective measures practiced by EU institutions aim against illegal migrants. The major burden of the policy is on member states but not the EU. However, as the number of illegal migrants increases, counter measures at the level of the Union are taken. In particular, Europol has been transformed from international organization into one of the EU agencies…which implies relevant results. The author concludes that the EU in its humanitarian activity relying on the international law norms acts more efficiently than in its protective activity and the institutions of the latter should rely on criminal, administrative and civil law. However, these institutions are at the initial stage. The task of establishing an adequate legal financial or institutional mechanism of regulating immigration streams has not found a proper solution. |
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112–119
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Vishnevskiy Alexander - Professor, Department of Entrepreneurial Law, Faculty of Law, National Research University Higher School of Economics, PhD (Law) National Research University Higher School of Economics. E-mail: aavishnevsky@gmail.com Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The article features philosophical and biological factors forming a ground to divorce under modern canon law of Catholic and Orthodox churches. The sources analyzed in the paper are Codex Juris Canonici, Old and New Testaments, commentaries of Russian and foreign theologians, dictionaries. The author is developing the thesis that it is impossible to understand the problem of terminating marriage applying only the tools of legal science. He stresses the problem of rendering philosophical and religious principles in the language of legal norms and strives to prove that the fundamental difficulties originate in particular in mistakes and interferences made in the Bible translations. The paper analyzes common and special in the interpretation by Catholic and Orthodox scholars such categories as man, woman, infidelity, dissipation, soul, flesh etc, and examines the difference in opinions and conclusions of the followers of the two religions. The Orthodox doctrine considers marriage ties sacred and condemns divorce though admits the divorce if the cause is adultery. Canon law of Roman Catholic Church considers adultery as a pretext for separation – transition to separate life but not necessarily to legal divorce. The canon law code contains a sophisticated interpretation of this thesis. It proposes a category of confirmed marriage which does not imply physiological aspect of relations but exclusively the spiritual factor – affinity of souls and their reunion on the marriage bed, which has been predetermined by the God. The marriage effected but not confirmed can be terminated by the Pope due to a fair cause. The marriage confirmed cannot be terminated by any human’s power for any reason. |
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120–127
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Danilov Sergey - Professor, Department of Constitutional and Municipal Law, National Research University Higher School of Economics. Doctor of Juridical Sciences. E-mail: sdanliov@hse.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The article studies a number of interdependent issues involving public law economic sciences. One of them is a combination of economic and social efficiency of public law institutions. The article shows that almost every state in the international community suffers from economic difficulties (cyclic, regional, branch-related) and social tension (unemployment, inflation). The whole world experiences another challenge of growing diversity in society and the variety of legal norms. It is considered that the states with the uneven level of political and legal culture as well as the social culture in general are in relatively similar conditions. In this regard, the author studies the sources of legal regulation of the institution of state corporations, ways of establishing them, competencies, priorities and the results of their activity. The article notes that the states with a settled constitutional democracy regime, Canada, US, UK, Norway etc, see the major but not mandatory priority in the economic efficiency of state corporations and the instrument is seen in the strict selection of personnel, which is usually beneficial and inevitably is rewarded with a high social efficiency. Trust and positive attitude to public law institutions contribute significantly to maintaining social and political stability. On the other hand, young democracies such as Algeria, Venezuela, Mexico, Tanzania tend to prioritize social and political efficiency of the institutions, which does not live up to the expectations and besides gives an extremely low economic result. The author reveals and stresses the interdependence of economic and social efficiency of this public law institution from such factors as reputation of principal managers, checks and balances of in the management combined with the responsibility for the inaction of officials. The author develops through the whole article the idea that this interdependence is inevitable. |
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128–139
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Petrov Alexey - Professor, Labour Law Department, National Research University Higher School of Economics, Doctor of Juridical Sciences. E-mail: alexey.petrov@yandex.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The paper highlights the most important materials of the conference Topical Issues of Court Decisions on Labour Disputes held in October 2010 by the Department of Labour law of the HSE Law Faculty. The conference was attended by the members of еру Judicial Division for Civil Case of the RF Supreme Court, the Law Faculty professors as well as candidates and students. The topic of the conference was the theory and practice in applying the RF Labour Code norms in Russian courts. The major attention was drawn by the report of the Presiding Judge on labour and social cases of the Judicial Division for Civil Case of the RF Supreme Court. The speaker developed the idea that the role of case practice to contribute to the legal development of society can hardly be overestimated. In his opinion judicial interpretations of labour law norms primarily the RF Labour Code are a means to make labour law more practical and orientate in the controversial legal concepts and categories. The speaker mentioned that the courts are the best tool to correct the drawbacks of the Labour Code and the legislative acts of the Federation and regions, elimination of contradictions in the texts, clarifying the type of the articles in the code – lateral or restrictive. The coordination between the RF labour law and civil law was positively evaluated. Among the soft spots of judicial practice the following was mentioned. In the 21st century courts considering the question of dismissal as part of employers’ competence have been reluctant to check the validity of the decisions made by employers and do not require any proof. The legislation lacks the definition for job cuts in an organization, downsizing, which inevitably leads to conflicts when drafting the document on contract termination. |
Book review
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140–145
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The publication is a review of the book by professor Vladimir Kryazhkov Russian North Indigenous Minorities in Russian Law. The work is a fruit of field studies done by the author. The reviewer argues that the status and role of these peoples of the Russian Federation are usually ignored in the constitutional law literature primarily in the text-books in constitutional law so this work may be considered as the one filling up the gap in legal science. Having studied the advantages of the work, it has been noticed that the material has been structured in four major directions. They are: legal regulation of joining Siberian territories as part of Russia, 2) Soviet state and legal practice as to the above-mentioned peoples (the book characterizes it as a state paternalism), 3) norms of international law ratified and not ratified by the RF. The book analyzes the conflicts of law between the bodies of federal, regional and local authorities emerging due to the regulation of the condition of indigenous minorities of the Russian north. The process is described as the centralization of the regulation, protection of rights of the peoples by court and extrajudicial order on the basis of common law. The book notes the disagreement between the norms of federal law and those of two codes Civil and Land. The review assesses positively the author’s opinion on the social responsibility of business developing where the peoples live. The disadvantage of the monograph is seen in the ambiguity of the definition of national minorities. |
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