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Legal thought: history and contemporarity
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3–7
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Rubanov Avgust - Senior Researcher, Institute of State and Law, Russian Academy of Sciences, Doctor of Juridical Sciences. E-mail: civillaw@igpran.ru Address: Znamenka St., 10, Moscow, Russian Federation
The article deals with a part of questions on Russian legal system and legal regulation of national cosmonautics. The sources for the analysis are consular charters, several RF codes: Civil, Air, Maritime, federal by-laws, Federal Space Program of Russia until 2015. The publication vastly refers to the detailed comparative analysis of consular charters of the USSR and the RF as well as other RF normative acts. Assessing the level of legal regulation of norms of consular rules, the author shows the flaws in the terminology, ambiguity in applying the concepts functions and actions of consular service, their far-fetched division which resulted in irrelevant duplications in the Charter. As to the Air Code, the article shows that developing space exploration is one of the priorities in the country. However, among other priorities it is ranked below only two vital priorities of 11, i.e. rebuffing military invasion to the Russian territory and rendering assistance in emergency situations such as natural and man-made disasters. The publication stresses that Russia takes a smaller area than the USSR used to, which increases the probability that space objects and cosmonauts will lend on the territory of foreign states. Due to this reason, Russian consuls should be ready to solve the problems caused by the development of the Russian cosmonautics. At the same time, the applicable Consular Rules of 2010 referring repeatedly to railway, sea and car modes of transport is very laconic as to the air one and is silent about space objects and cosmonauts. The conclusion of the author is that the Consular Charter does not treat the concept of Russian cosmonautics properly. |
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8–15
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Vishnevskiy German - Postgraduate student, Departmentof Judicial Power and Justice, Law Faculty, National Research University Higher School of Economics, attorney at OOO KRK Strakhovanie. E-mail: vishnevskiy_g@mail.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The paper tackles the problems relating theoretical interpretation of uniform judicial enforcement which is subject to implementing in the system of justice and as a concept in the framework of rule of law and equality of citizens before court and the law. Part of the analysis is devoted to modern ways of providing uniform implementation of legal standards in judicial enforcement during legal process. The author challenges common in law and legal practice interpretation of uniform judicial enforcement. However, this interpretation of uniform judicial enforcement is not in line with the rule of law principle, excludes the necessity for a court to monitor legal norms which are subject to implementation. The author argues that the hierarchy of court system and constitutional authorities of higher courts as to interpreting current norms should not create the pattern authority – subordination between higher and regular courts and not promote to shaping the elements of administrative regulation which as a phenomenon corrupting the essence of justice is common nowadays. The article makes a conclusion that judicial enforcement should be aimed at solving (by all the judicial bodies) social and legal conflicts on the basis of equity (rule of law) implying the ban on discrimination to implement judgement. Judicial acts which have caused an uneven balance of rights and obligations by deprivation or limitation of widely recognized rights and freedoms makes up a violation of uniform judicial enforcement. |
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16–38
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Get’man-Pavlova Irina - Assistant Professor, International Private Law Department, National Research University Higher School of Economics,PhD (law). E-mail: getmanpav@mail.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. The paper gives a general review of the role of the school of the postglossators in the formation of the private international law studies. The relevance of the topic is seen in a special importance of the doctrine in international private law. The doctrine as a source of international private law had appeared several centuries before national law. The fundamentals of the international private law study were laid by the postglossators. The famous glossa Quod si Bononiensis is considered the cradle of international private law as it set up the questions of the conflict of laws. However, the doctrine started developing in the late 13 th – 14 th centuries. Its founders were the representatives of the school of the postglossators who started analyzing the conflicts of the provisions in town statutes,i.e. conflicts of laws of different nations in modern terms. Founding private international law theory as theoretical studies and a practical doctrine is attributed to Bartolus de Saxoferrato, however his works were based on some early studies and he had many predecessors as to the collision of laws, inter alia Guillaume Durand, Jacques de Révigny, Pierre de Belleperche, Cino da Pistoia, Albericus de Rosate, and Giovanni Faber. These scholars formulated the conflict of laws principles endorsed in modern laws and thanks to them applying foreign law was for the first time recognized as a legal obligation of state. However, none of Bartolus’ predecessors proposed any of the conflict of laws theory. This can be explained with the fact that in the early 14 th century conflict of laws were of practical nature but case practice was sporadic and the rulers (legislators) were not interested in regulating private relations associated with foreign laws. Conflicts of the laws belonging to different nations were not topical to develop a theoretical approach to make up generalizations and principles. The postglossators are characterized with the focus on contradictions and loopholes in law, dialectic problems, striving to solve them by generalizing legal principles and concepts. The school cherished the values characterizing academic studies, i.e. objectivity, integrity, universal nature, skeptic attitude, tolerance to mistakes, modesty and ability to accept different views. |
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39–50
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Poldnikov Dmitriy - Associate Professor of the Department of Theory of Law and Comparative Law, Law Faculty, National Research University Higher School of Economics, PhD (history). E-mail: dpoldnikov@hse.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. This article presents the view of the School of Salamanca of the late medieval scholastics (16th century) on the binding force of contracts – a key problem of contractual theory. The legal theory of binding contracts of the School of Salamanca is represented as a requisite chain between the medieval civil law and contractual doctrines of the followers of natural law promoted in the Modern Age. The lack of the binding principle of all the legal agreements in Roman law until the 16th century was in line with the view of medieval civil law scholars to defy the rule promises must be kept (pacta sunt servanda) from canon law. The representatives of the School of Salamanca gave a rationale to the rule in all the legal systems of Continental Western Europe. The contractual theories of the school were being formed in Spain’s golden age – the period of cultural, political and economic rise, caused by the political unification of the country, colonial conquests and the leading role of the Spanish monarchs in Western Europe. Being influenced by the new trends, Spanish theologians and legal scholars of the 16th century legal scholars (Domingo se Soto, Francisco Suárez, Luis de Molina, Leonardus Lessius etc. got engaged with the reform of medieval legal doctrines ius commune on the basis of moral theology, the philosophy of Thomas Aquinas and canon law. The development of contractual law resulted in an original theologian and legal theory well represented in the treatises entitled collectively De iustitia et iure. The typical features of the theory were a successive description from the general to the particular, distinguishing common principles of contract law and rules for certain contracts. One of the provisions was represented with the principle of the binding authority of all promises both mutually beneficial and gratuitous except they are given on an actual basis (causa) and accepted by the creditor. When formulating the principle, the representatives of the School relied on the concept of promise in canon law, Catholic theory on Christian virtues and views of Aristotle and Thomas Aquinas as to the nature of contractual relations. On the basis of the obligation of a contract, later scholars determined the order of concluding a contract on the basis of offer and acceptance and discussed the binding force of unaccepted promises. The significance of the theories of late scholars of the School of Salamanca is seen not only in their own interpretation of the ius commune principle but the influence on the theory of promise developed by Hugo Grotius in De jure belli ac pacis libri tres (1625)and some other scholars of the Modern Age. |
Russian law: conditions, perspectives, commentaries
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51–59
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Lagutin Igor - Assistant Professor, Department of Financial Law, Law faculty,National Research University Higher School of Economics, PhD (law). E-mail: lagutinigor81@mail.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The aim of the article is to characterize the Federal Law On General Principles of Organizing and Activity of Audit Bodies in the RF Federal Subjects and Municipalities. The focal points of the article are: 1) evaluating originality and usefulness of the act which is the first to introduce single principles for audit bodies in the RF federal subjects and municipalities, 2) the comparative analysis of normative clauses of this law and the applicable laws in the RF regions. It is noted that the acting audit bodies have unequal legal status, number of employees, financing etc., which is an obstacle for an efficient financial control over public budgets in the regions. Some of such bodies are autonomous and have a legal status, others are the branches or offices of legislative bodies. As the advantages of the law, the author mentions the codification of the basic and special powers of the bodies in question. As to the disadvantages, the author arranges them in five groups. First, this is the general nature of its norms, inappropriate ambiguities in wording. Second, the principles of the activity of the audit bodies are discussed in the law separately without sufficient division and the definitions given relate only to the second group of principles. Thirdly, the law does not specify any relevant principles of the liability in the bodies. Fourth, the author sees nothing new in the law as to the structure of the bodies, and the concept of the performance of audit. In this regard, the federal law looks inferior to the legislative in some RF regions, in particular Perm, Kaluga, Nizhniy Novgorod. Finally, the law contains an excessive number of recommendations and references to the acts of regional and municipal levels. The latter will decrease the efficiency of its provisions. |
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60–64
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The article studies the current norms of the Russian legislation regulating the right of the employee to revoke the submitted notice on resignation. The sources analyzed include the RF Constitution, the Soviet Code of laws on labour, 1971 and the current RF Labour Code. Case practice has been dawn to the analysis including the judgments and definitions of the Plenum of the RF Supreme Court and its agencies – collegiums. The subject matter of the article was associated with the definition adopted by the Judicial Collegium on civil cases of the RF Supreme Court. This definition due to the labour dispute contradicted the established case practice. The norms of the code and practice suppose that the employee’s right to revoke the notice of resignation should not violate the rights of persons invited by the employer instead of the previous one as a transfer from another organization to conclude the labour agreement. The essence of the 2008 definition is that the right to revoke this notice may be implemented by the employer in any situation except the case when the notice can not be revoked i.e. if the other person has been dismissed from the previous job by the moment when the employer intended to revoke his notice. The authors disagreeing with the position of the Supreme Court stress that this position was not published in the Bulletin of the Supreme Court of Russia, which causes difficulties for judges as they may not ignore the opinion of the Supreme Court. The authors remind that there is still no definition who exactly decides on publishing materials of the Court in this Bulletin which is the official edition of the Supreme Court and who is liable for arbitrariness as to publishing such materials. The authors conclude that the federal law of 2010 On Ensuring Access to the Information on the Court Activity would correct the situation. If the law is not applied, judges and people will not have an access to any texts of judgments.
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65–76
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Rusanov Georgiy - Senior Lecturer, department of Criminal Law Disciplines, West Siberian Campus of Russian Academy of justice, PhD (law). E-mail: georgiyr@mail.ru Address: Plshchad Lenina, 2, 634050, Tomsk, Russian Federation The aim of the paper is to study topical problems relating to criminal l liability for smuggling under the RF criminal legislation. The article reveals objective and subjective signs of smuggling, analyzes the issues relating to classifying smuggling, and applying in practice norms of article 188 and other Criminal Code articles. The study relies on the laws, federal laws, decrees of the plenum of the RF Supreme Court of the 2000s. The paper compares specific features of the approach described in academic books and manuals. The article also reveals negative consequences of the replacement of the RF Customs Code with the Customs code of the Custom Union of Russia, Belarus and Kazakhstan, which has posed a problem of unifying and legal regulation of liability for smuggling. The author has studied the question as to the time limit for a voluntary reunification of a crime is possible under art. 188. Another point discussed here is the liability of people having committed smuggling and officials employed in the customs agencies, other state bodies, state corporations, military men. It is stressed that the code provides for a liability for committing smuggling abusing corporate opportunities and applying violation against the person implementing customs control. Having examined some aspects, the author expresses disagreement with the decrees of the RF Supreme Court. In particular, he suggests taking into account the fact that the time when smuggling has been completed should be determined exclusively by the actions of the subject of the crime but not of natural or legal persons as it is now. |
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77–87
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The article is the analysis of the UN Convention on the Use of Electronic Communications in International Contracts (2005) and applying its provisions to international contracts, to be subject to other international agreements, in particular the United Nations Convention on Contracts for the International Sale of Goods 1980 and Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. |
Law in the modern world
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88–107
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Jürgen Basedow - Professor, University of Hamburg, Director of Max-Planck-Instituts für ausländisches und internationales Privatrecht, LLD Adress: Mittelweg 187, 20148 Hamburg
The article contains a complex discussion of a fundamental principle of European private law, i.e. freedom of contract. The objectives of the author are the analysis of special applications of the principle in the context of state regulation of economic relations and competition. The source of the research are acts of international law including the Treaty of Rome and Lisbon Treaty, directives of the Council of Europe, industry codes of EU member states, court decisions, works of experts in civil and international law. The author supports the limiting interpretation of state regulation of economy. He considers the freedom of contract principle from five aspects. He finds that within the EU, the legal regulation of the principle has soft spots though protected by international law. Legal regulation of European contract law is typical of formal approach which is accompanied by inconsistency in regulation and numerous acts adopted by EU institutions. These acts are of very loose and selective nature. This conflict may deepen when the Charter of Fundamental Rights comes into force. The Charter involves not only several aspects of the freedom of contract, but also an extensive anti-discrimination provisions. The Charter’s authors did not take into account previous collisions. Hence, a direct vertical application of the Charter in private law may pose a danger to the market economy as a basis of the EU. The article is concluded with an idea to return to the discrimination ban supported by the principle of direct and fair distribution of benefits. The principle of vertical effect may be applied only in the most challenging cases. |
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108–121
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Janssen Catlyn - Interdisciplinary Centre for Law and ICT (ICRI)Leuven Katholieke Universiteit, LLD Address:Sint-Michielsstraat 6 B3443, 3000 Leuven, Belgium
The author examines legal regulation of the access of individuals to the information available for public sector in the EU countries. The purposes of the article are the comparative analysis of relevant public law acts (relating to international law) and the disclosure of information available for public sector institutions. This information may relate to trade, administration, environment etc. The materials for the research are directives of various EU Institutions: the Council of Europe and EU Parliament.The Directive on the re-use of public sector information, 2003 is considered central. Analytical materials written by the lawyers from France, the Netherlands and the UK have also been examined. The article notes that the influence of legal EU institutions on the access to this information is still limited. Regulating access of individuals to it is regarded as an internal matter for each EU state, which is in line with the principles of a sovereign democratic state. The only exception is the information relating to the environment. It is stressed that the 2003 Directive specifies only a minimum set of rules. However, it codifies the transparency of the data and provisions against discrimination and unfair trade. Re-use of information both commercial and non-commercial includes its any application by individuals. Soft copy templates are preferable. At the same time, the exchange of documents between public institutions for public purposes cannot relate to the re-use of public sector information. The author concludes that the potential of public sector information is not implemented entirely. One of the causes is the paying nature of the service rendered by public sector to individuals. |
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122–140
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The publication is an attempt to study legal patterns on the example of the integrated object of reality in the German legal system. The sources analyzed are the late 19th century civil code, later German legislative acts including the Condominium Act of 1951 (Wohnungseigentumsgesetz) and the works of experts in civil law. The article studies the major theories of the concept immovable property, analyzes the legal association between land plots and buildings on them making up res communis – a single economic unit (object) having originated in Roman law . The author describes and reveals the legal difference between mechanical, space and functional integration of things. The article studies the regulation of such concepts in German law as a construction of a single economic unit and its purpose, its essential and illusory components. The paper provides the criteria of a building and material essential component of a single economic unit under German law, shows the specifics of the independent property status of the single object illusory components and the influence of the French Civil Code on German law, studies general and particular aspects of the institution of housing property in modern Germany. Attention has been paid to the issues caused by the unification of the legal regulation of property relations between Western and Eastern Germany when the GDR joined the FRG. The issues were caused by the fact that the GDR legal system had the concepts of the right of ownership and disposal whereas FRG law prioritized the institution of property and associated rights and obligations. |
Discussion club
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141–147
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The following article dwells on the problem of interpreting the so called Glorious Revolution of 1688 from a libertarian point of view. The sources analyzed are royal edicts, declarations, court judgments, monographs by British historians, materials from the Internet. The author disagrees with the settled opinion that the state coup at the end of the 17th century referred to as the Glorious Revolution was caused by the authoritarian rule of King James II Stuart who headed fanatic Catholic reaction forces and the success of the coup meant the victory of the forces of freedom, tolerance to faith and economic progress. Having referred to a number of normative legal acts and historical facts, the author develops the idea that king James II and his supporters Jacobists though not all of them were of the catholic faith sought actually to establish in Britain fundamental for that period human rights, i.e. freedom of conscience, entrepreneurship and right to bear arms. The Glorious Revolution and the enthronement of the House of Orange-Nassau were desired by only the oligarchal Anglican elite. The victory brought not development but a political and legal regress and economic stagnation. The regress lead to the restoration of limited religious, political and economic rights of Catholics, deprivation of rights of atheists and return from the free trade introduced by the Stuarts (laissez faire) to protectionism and further economic crisis of two regions of the kingdom, i.e. Scotland and Ireland. The author reminds that several norms of the Bill of Rights praised by historians were against a case of the King’s Bench which happened 3 years before and not cancelled. Thus, the provisions of the Bill of Rights went against the fundamentals of English case law, which made the enthronement of William III & II legal. Summarizing, the author proposes to rename the events of 1688 and the results from the Glorious Revolution to inglorious. |
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