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Legal thought: history and contemporarity
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3–9
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Alpatov Alexey - Associate Professor, Department of Law, All-Russia Extramural Institute of Finances and economics, PhD (law). E-mail: alpatov.volgograd@vzfei.ru Address: Kubinskaya St., 26, 400078, Volgograd
The article attempts to give a history and philosophy of law analysis of the controversial evolution in forming theoretical concepts about law and at the same time examine legal practice per se. The author strives to reveal the essence of law. He reminds that with the variety of legal conceptions, the problem of creating integral legal theory without any inner contradictions remains unsolved. Legal studies are experiencing a crisis caused to some extent by the myriads of conceptions and hypotheses. Specific features of legal doctrine have been distinguished especially those of the post revolutionary Soviet and Post-Soviet periods in the Russian history. The author criticizes normative etatist interpretation of law in the USSR, substitution of jurisprudence with ideological dogmas, simplified interpretation of the essence of law in line with positivism and instrumentalism. Positivism was the only theory borrowed from the pre-revolutionary experience. The attempts to get rid f the frame were not evident for an extensive period. The author stresses that the collapse of the USSR was followed by a legal vacuum. As to the positive traits, he specifies that since the end of the 20th century it has become possible to state that the domination of the positivist approach in law the basics of which had been laid before the revolution has been overshadowed by the interest to the natural law conceptions in legal circles. Now, the views developed in the Soviet period but not complying with the official doctrine have started the development. Besides, new, authentic legal patterns are being developed. In the 21st century the freedom from etatist dogmata is remaining illusory. The phenomenon of law still needs an in-depth and complex analysis. A non critical acceptance of the Western legal culture does not cope with the task of overcoming contradictions of the modern legal theory. |
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10–25
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Antonov Michail - assistant professor, Department of Theory and History of Law, Faculty of Law, Saint Petersburg Campus ofNational Research University Higher School of Economics, PhD (law). E-mail: mantonov@hse.ru Address: Promyshlennaya St., 17, Saint Petersburg, Russian Federation, 198099
The article studies theoretical grounds to apply economic analysis of law. Economic theory has been initially aimed to consider the decisions taken by the state not in terms of imperative norms as in legal science but in terms of facts – influence on economic processes. The author argues that law is a system of obligatory rules. However according to D. Hume obligatory statements cannot be based on facts. Hence, the author assesses critically the area law and economics to justify pluralistic legal reality, points to the boundaries of research where the economic analysis should be relevant. In particular, the author points to inadmissibility of economic assessment of legal principles and basic constitutional values determining the major parameters of law in society. According to the author, complex social research of living law are more relevant. They would allow studying and comparing not only legal norms and economic institutions but social and psychological processes which go together with creating and applying the norms. Another useful analysis relates to the mechanisms of power coordination at different levels – interaction of law and other ethical regulators, studying factual mechanisms of state intervention into economy and their comparison with the principles declared in the legislation. This research leads inevitably to admitting many sources of law, forms of structured law on the same territory, which allows generalizing information on usefulness of separate types of law, their comparative cost and efficiency in terms of differences in culture, mentality, economic conditions and institutional structures of different societies. However, this task goes beyond the economic approach to law and leads to a wide social and legal perspective. |
Russian law: conditions, perspectives, commentaries
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26–41
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The article attempts to analyze the conditions under which constitutional law area became a discipline of constitutional (state) law in the cultural life of the Russian Empire. The sources referred to are devoted to the history of law (including dissertations) of the Soviet and especially the post-soviet period. Theoretical works of the pre-revolutionary constitutional law scholars have been outlined. The author seeks to reveal to what extent the constitutional law discipline has been studied and arranged the periods of its origin, formation and initial development. The author concludes that necessary conditions for establishing constitutional law as a separate scientific discipline has an indirect dependence form the limits of constitutional limits of public law in a country which is also true for the presence of a written constitution is not a prerequisite for an impartial, unbiased analysis of constitutionalism. Until 1905, Russia did not know constitutional development, however Russian scholars had started contributing to the constitutional law doctrine since the 1850s. That period became the time of the formation of the science of constitutional law in Russia. The country acquired the prerequisite social conditions then. Among the prerequisites, the author mentions: the accumulation of the necessary number of qualified lawyers, the autonomy of academic (university) community from the public power institutions, which provided an opportunity for free debates, development of the mechanisms of academic community, availability of scientific information from abroad, freedom to go abroad and, finally, to make academic research as a private person. However, as the author concludes, Russian constitutional scholars developed the constitutional doctrine borrowing and adapting political and legal experience of Western Europe. A similar situation was kept in the USSR. However, the academic community got restrained with the Marxism-Leninism ideology, which, was not beneficial for the science. |
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42–54
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Vishnevskiy Alexander - Professor, Deapartment of Entrepreneurial Law, Faculty of Law, National Research University Higher School of Economics, PhD (Law). E-mail: aavishnevsky@gmail.com Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The article considers the models of implementing banking activities in the modern banking law. The article is based on the following sources: EU directives, legislations and codes of the EU member states, normative legal acts of foreign and Russian banking institutions, opinions of civil law academics, the conception of the civil law development in Russia, RF laws. The models have been analyzed in terms of balancing between two groups of conditions to be met by the applicants of a banking license – “quantitative” conditions which are strictly fixed in the legislation, and “qualitative” conditions which are within the discretion of the licensing body. The conclusion is that there are three models in modern banking law. One of them, the oldest, “British” model is characterized with decentralization in favour of the discretion of the licensing body, “Russian” model is based on strictly fixed legislative provisions with a minimum discretion of the licensing body. It has been noted that Russian banks often act ultra viresin terms of the federal law. The author argues that the model characterized with the maximum strict regulation of all the aspects of licensing and is the least efficient in practice. The “European” model is based on the relative balance between strictly fixed legislative requirements and the discretion of the licensing body. The two latter models have a commonality as one of the requirements to use them is a special permit (authorization) to set up a credit institution. The author stresses that the common European model got a legal basis represented with the EU directives issued in the period 1970 – 2000 and being implemented by all the EU member states taking into account the special features of national law. |
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55–65
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Kalyatin Vitaliy - Senior Researcher at the Information Law Laboratory,National Research University Higher School of Economics, Professor of the Russian School of Private Law, PhD (Law). E-mail: kalvit@yandex.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The paper studies the intellectual property legislation. A special attention is paid to the further development of legal regulation in this area. The author makes predictions on the development on this area in the near future, analyzes looming threats and challenges which the intellectual property legislation will face. In terms of the tendency, the latest amendments to the RF Civil Code are studied. The development of the intellectual property legislation has clear stages typical of the majority of countries with a similar development level. A detailed analysis shows that the changes in the intellectual property legislation reflects some common tendencies relevant to design a legal mechanism meeting the demands of current society. The modern stage of the legislation has a number of interconnected tendencies involving every area of intellectual property. As to the objects, this is the emergence of new objects, their variety, sophisticated nature and platforms for combined application. A point one should be aware of is that a certain object is mentioned in the legislation only a new necessity of society in creating a special legal regulation is formed. First of all, economic factors are crucial as the desire of business to protect its interests in this area is a factor promoting to the changes in the legislation. Groups of subjects are getting more complicated in terms of both corporate authors and the distribution of their functions but the role of agents (shown in the spread of cases of bringing them to responsibility) and people arranging the process of creating such objects. This requires new variants of distributing liability and changing rules of intellectual property protection. The author notes a tendency of the transition from the permissive approach to compensational. It is shown in the frequent cases of free use of intellectual activity results and introducing various cases if obligatory licensing. This approach is accompanied with facilitating the turnover of the rights and a wider range of interests. This and other tendencies pose serious challenges. The fact that the circumstances have been reflected in the draft of the RF Civil Code brings hope to develop an efficient system of intellectual property legal regulation. |
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66–74
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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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75–86
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The publication studies the advantages and disadvantages of the legal regulation accompanying in Russia the establishment of the Customs Union for some CIS countries. The sources analyzed for the article are RF federal laws and codes, books and text books of Russian experts in civil and administrative law, as well as legal, explanatory dictionaries and encyclopedias and some acts of international law. The disadvantages have been found primarily in the customs procedures. The author argues that Russian legislators attempt to exclude the concept of customs regime from legal regulation and replace it with a wider category of customs procedure. The author finds that this intention is an advantage as it is in line with the international law regulation in particular with the Kyoto Convention, 1973 which Russia has joined recently. However, this is still work in progress. The article stresses that the normative acts being lengthy and cumbersome do not completely meet the Kyoto convention requirements. The concept of the status of products is used irregularly in Russian normative acts. The author of the publication suggests unifying the conceptual framework to be applied in customs law and associated branches and removing controversies and inconsistencies. He recommends introducing the concept of the right of possession into Russian customs procedures. |
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87–93
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The article covers the approaches to the definition of court costs in arbitrazh procedures. The sources referred to are the RF Civil Code and commentaries thereto, Tax Code, Arbitration Procedure Code of the RF, the decisions of the RF Constitutional Court, and commentaries thereto, the decisions of the Presidium of the Supreme Court of Arbitration of the Russian Federation, academic research works (including dissertations) by Russian specialists in arbitration. The author shows an insufficient doctrinal basis of the issue on the material and legal nature of the institution of judicial costs to pay for the services of representatives (lawyers and other people rendering legal assistance to the parties participating in the arbitration procedures) and proposes a number of his own definitions and interpretations. He stresses that the topicality of the issue pointing to the fact that these expenses are a significant part of the total amount of judicial costs. A special attention is given to the definition, legal nature and limits of costs to pay to the representatives. The author debates with the Russian lawyers who prove that judicial costs include the salary to judges and staff, expenses on maintaining and repairing facilities etc. The author develops the idea that these expenses are part of the budgetary legislation and hence do not relate to judicial costs. However, he admits that the state can not be excluded from the list of entities bearing court costs. In particular, services of translators, judicial experts and in some cases the presence of witnesses are payable from the state budget. The article makes a conclusion on the ambiguous legal nature of these arbitration costs. They are losses, though at the same time, they are court costs. |
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94–102
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Kasatkina Alexandra - Postgraduate student, International Private Law, National Research University Higher School of Economics. Doctor of Historical Sciences. E-mail: akasatkina@hse.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The problem of carrier’s liability remains most complicated and unresolved. The fact that the liability of transport companies is directly connected with passengers confirms it. The higher carrier’s liability is, safer passengers are and vice versa. Hence, international law regulation of the carrier should ensure the solution to two important objectives: firstly, provide enough security to people, i.e. passengers using transport services and secondly, stimulate carriers to arrange the transportation process properly and avoid causing financial difficulties which may affect the work of transportation lines, especially in struggling economies. Most treaties on international transportation set the limits for carriers. It is the maximum of compensation to be paid to the passenger in case of bringing harm to their health or the maximum amount which may be requested if the luggage has been lost. The limits of the carrier’s liability are set differently. With the transportation of carriers, the maximum amount is set for one injures person and dependents. With transporting luggage, this limit is set in proportion to the unit of weight. In case of delay cargo and luggage, the limit of carrier’s liability is carriage charge or its part. The solution to the problem of carrier’s liability is affected by the fact that the international community has to solve all the issues at the international level on all transportation types. Besides, the problem of the carrier’s liability includes two major issues: carrier’s limits of liability in terms of time and the cases which may cause liability. However, the carrier has to be liable only for its fault which may appear during transportation. Hence, this article is devoted to a number of issues, related to the carrier’s liability in international carriage of passengers and their luggage. The author analyses the grounds and limits of carrier’s liability under International Transport Law. The author also scrutinizes a wide range of international treaties as principal sources of legal regulation of international carriage of passengers and their luggage. |
Law in the modern world
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103–111
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In this research, the author pays attention to one of the most topical problems of international law: the recognition by the United Nations international and regional organizations, in particular the Arab League. The sources analyzed are the official documentation of the UN and the League as well as the analytical literature on international law. This article presents a detailed analysis of the relationship between the two organizations during the period between 1945 and 1960, i.e. before the adoption of the Memorandum of Understanding on Cooperation between the two Secretariats. The Arab league is shown in the article as the oldest international regional organization. The author is convinced that there is no provision on supra state organizations in the UN Charter and seeks to reveal the consequences of this situation. He states that the lack of the criteria, forms and ways in the charter, which would make recognizing such organizations in the future possible. The author focuses on the questions of the strategy of the de jure recognition of the League by all the UN bodies. The article stresses that the League seeking international recognition followed the pattern of the Organization of American States which was established later. The author notes that the League has established formal relations with the UN and its special bodies since the 1950s. In the UNGA, the League is vested with a status of the observer. However, as the author reminds, the league has not been recognized formally as an international regional organization until now. The reason is seen in the fact that the UN is an organization of sovereign states, hence supra state organizations can not join it as fully-fledged members. |
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112–119
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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. |
Discussion club
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120–125
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Zhukova Yuliya - Postgraduate student, Law Faculty,National Research University Higher School of Economics. E-mail: julia-jukova@yandex.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. Loshchilin Viktor - Postgraduate student, Law Faculty, Department of Entrepreneurship,National Research University Higher School of Economics. E-mail: intmainvoid@gmail.com Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
This summary incorporates the materials of the panel held at the Law Faculty of the Higher school of Economics in 2011. The analysis of Russian reality raised key questions on the necessity to maintain the balance of interests for all counterparts in legal relations in the area of regulating technique. The panelists noted a positive influence of the law On Technical Regulation on Russian small and medium-sized businesses and advantages for consumers. The modern requirements to marking products have become a barrier against fraud. At the same time, among the negative influence, the following has been mentioned: rejection of state institutions to supervise the quality of products, inefficiency of civil, administrative and other sanctions against the violators of construction norms and similar norms and standards, absence of the mechanism of implementing norms which would set the opportunity to develop drafts of technical rules by any persons. The institution of standards though existing does not perform the functions of a fully-fledged regulator for the quality of goods and services. When drafts of laws on technical regulation are being prepared the last word is left for the institutions of executive power and an efficient instrument of parliamentary hearings to evaluate drafts is applied rarely. Contradicting the fundamentals of legal regulation the content of normative acts of different levels overlaps. Proposals were made to consider some questions of regulation as an integral part of technological security of Russia but not as a basic technical regulation. A special attention at the panel was drawn to the questions of setting up in Russia a uniform hierarchical system of legal acts of technical regulation. Unanimity was achieved as to unifying technical regulation within the Customs Union. |
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126–134
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Kuznetsov Dmitriy - Director of the Higher School of Jurisprudence, Assistant Professor, Department of Labour Law,National Research University Higher School of Economics. E-mail: kdlev@yandex.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. Vasilevskaya Tatiana - Deputy Director of the Higher School of Jurisprudence,National Research University Higher School of Economics. E-mail: tvasilevskaya@hse.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. Lukonin Sergey - Advisor on Projects, Higher School of Jurisprudence,National Research University Higher School of Economics, Assistant Professor, Department of Global Economics, Plekhanov Russian University of Economics. E-mail: sergeylukonin@mail.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The paper is a summary of materials of a scientific conference held in the Higher School of Economics in March 2011. The summary has been made up by the authors on the speeches of Russian lawyers specializing in sport slaw. The discussion at the conference was focused on the Federal law On Physical Education and Sport in the Russian Federation, 2007 and its application. The analysis involved the problems of applying the norms of civil and labour law to the area of sport. The participants assessed positively the distribution of powers vertically in the public power institutions. Mass physical education and sports for the disabled are assigned to the competence of the Russian Federation but Deaf Olympic Games, World Specific Olympics and paraolympic elite sport are part of the federal competence. The attention was drawn that RF law lacks the system of subjects of sports relations, ambiguous criteria to select members to national teams, multiple contradictions in interpreting legal norms by various sports federations and clubs by Russian clubs as to their responsibilities, as well as the responsibilities of coaches and athletes. Bottlenecks of legal regulation regarding sponsorship have been criticized as well as competition and overlapping legal regulation in Russian sport. The law has a potential to construct a modern meeting all the requirements system of regulating relations connected with the development of physical education and professional sport. However, it is necessary to scrutinize the efficiency of legal mechanisms fixed in the law, analyze case practice, enforce the law with normative acts and maintain professional dialogue. |
Book review
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135–137
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Shablinskiy Ilya - professor of the Department of Constitutional and Municipal Law, Faculty of Law, National Research University Higher School of Economics, Doctor of Juridical Sciences. Email:ishablin@yandex.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. The review evaluates the workLegal Acts. Evaluation of Consequences (edited by Yu. A. Tikhomirov, Moscow, Yurisprudentsiya, 2011). The review also attempts to answer a number of questions. Can the efficiency of normative acts be measured? Are there any methods of assessing their social and economic consequences? What is the mechanism of choosing the most relevant legal influence? These questions open a wide area for theoretical quests which we find in this work. The main aims of these quests are to improve lawmaking mechanism, deepening the preliminary analysis of relations subject to the regulation. In the opinion of the author of the review, the topicality of these topics is determined with the crisis of the Russian parliamentary system. Due to the domination of one faction, the discussion of drafts becomes formal. The aims of a normative act regulating in particular business entities should meet the market development. That is, these aims should not contradict this development, otherwise lawmakers will be disappointed. Interestingly, realizing this important self-limitation is a basis for many research methods, procedures developed in a number of countries with old parliamentary traditions in particular the USAS. These are the methods of regulatory impact assessment of normative acts. Originally, developed countries used to develop possible damages associated with an extreme regulation of the excessive burden for business. |
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138–142
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Alebastrova Irina - Assistant Professor, Department of Constitutional (state) law of Foreign Countries,Kutafin Moscow State Law University. E-mail: msal@msal.ru Address: Sadovaya-Kudrinskaya St., 9, 123995, Moscow, Russian Federation
The paper is a review of the book by S.V. Vasilieva Constitutional Law Status of Political Opposition made primarily on the analysis of Russian reality. The review aims to reveal advantages and disadvantages of the publication. Among the advantages of the book, one can mention that it is an attempt to theorize on oppositional forces. The book contains a detailed grounding of the thesis that opposition is an integral part of a democratic state. A law-abiding opposition involving the minority is an impulse for the ruling elite and its structure to improve, averts the government from many mistakes, is able to enrich the political agenda of state government. Its aim is a function of a creating destroyer. Political opposition is especially efficient if it has an opportunity to become the ruling the majority in the near future and acquire the instruments of public power. The author’s attitude that political opposition claiming power should be organized does not meet any objections. It allows accumulating financial and ideological resources which serve as a pledge for success in a competitive political struggle. As to the disadvantages of the publication, the author comes to the following conclusions. The work is not topical as the opposition is not in demand either public opinion in Russia or the ruling elite. The majority of society does not feel any political or psychological need in opposition. It should be emphasized that the work contains a number of controversial or erroneous statements. In particular, it has been mentioned that political competition is possible and desirable not only for political parties and parliament. However, according to the author the proof of the assumption remains a puzzle. The proposal to legalize the enrichment of political process by public associations does not hold. The statement is made on the assumption that the latter are free from defects affected by the parties - dictatorship, secrecy etc. In this case public associations will inevitably be so politicized that they will become parties. |
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