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Legal thought: history and contemporarity
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3–17
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Barber Nicholas - Professor, Trinity College, University of Oxford. Address: Broad Street, Oxford, OX1 3BH, United Kindom. E-mail:nick.barber@trinity.ox.ac.uk.
This paper focuses on the essence of the separation of powers and its application in the British constitution. One of the aims of the research was an in-depth analysis of the separation of powers in its essence and imperatives of the principle. The author proceeds from the question what it implies, i.e. separation of institutions, separation of powers or separation of officials. The article contains characteristics of the branches and major institutions. Legislative branch serves as a forum. Though MPs are not professional politicians, parliaments decide on the major directions of state policy. Parliamentary statutes look prospectively and regulate fundamental areas of law. Judicial branch is arranged as a triad (judges and litigants). Judges are professionals – experts in law. Court decisions are only means to settle disputes and look retrospectively. Interpreting and commenting law, filling up lacunae, courts promote to the development of law. Judicial branch in lawmaking is auxiliary. Executive power is arranged on the functional principle. State servants are professional technocrats. They shape norms, regulating application of laws and implement state policy. The author draws the attention to arbitrariness and flexibility of limits set up by the scheme. He argues with the supporters of idea that constitutional regime of the UK has a principle or mechanism of amalgamation of powers but not separation. He thinks that this opinion does not fit either the current situation or the situation in the past. In particular, judicial system of the UK was separated from the other branches long ago and the independence of judges is not an exception. The recent reforms of the 1990s and 2000s have given rise to the idea of the separation of power in the UK. In particular, the upper chamber is not the highest judicial instance, the office of lord-chancellor has been annihilated. Hence, British legal scholars start interpreting doctrinal approach to the separation of powers differently. Nowadays its interpretation is getting closer to the one in most modern states. |
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18–36
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Alexeyeva Tatiana - Professor, Department of Theory and History of Law and of State, Law Faculty, Deputy Director of the Saint Petersburg Campus of National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 17 Promyshlennaya Str., Saint Petersburg, 198099, Russian Federation. E-mail: ta_al@mail.ru. The article deals with the constitutional projects of 1798, 1801, and 1808, drawn up by Francisco de Miranda, the first Latin American constitutionalist who is officially dubbed Precursor of independence in Venezuela. The major sources for the project of 1798 were the US Constitution, English constitution and Roman public law. Having prepared Essays in 1801 and 1808 the sources were reinforced with the experience of French constitution of 1791, 1793, 1795, 1799. The influence of The unwritten Constitution of the United Kingdom was expressed in the project of 1798 as four elements were borrowed, i..e. the form of government, upper and lower chambers, judicial systems and law making. Later, the British experience was enforced by Miranda only regarding the fundamentals of legal system. The US Constitution was understood by Miranda as a model of a written constitution that is a uniform consistent act establishing the system of the highest state bodies, representing the basic law with the status of highest legal force in the legislation and requiring a special order to make amendments. The use of the North American experience was seen in 1801 and 1808 when the republican form of government and federative form of government were codified. The traces of the US Constitution are noticed in the borrowing of the separation of powers which became the principle of arranging the system of highest state bodies and distributing state functions among several levels of public power: municipal, provincial and federal. The reception of public law is seen in the implementation of the people power principle and the introduction of the ancient system of posts with the titles and competencies (emperor, dictator, censor, edile, questor). Miranda’s projects were influenced by all French constitutions contemporary to him – of 1791, 1793, 1795, 1799. This was seen in the basic principles of arranging power and its architecture (popular assemblies, pyramid structure, census voting right, unicameral legislative body, and collegial bodies of executive power). |
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37–49
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Ilalutdinov Almaz - Senior Specialist, Department of analyzing and processing case practice at the Arbitrazh Court of the Republic of Tatarstan, postgraduate student of the Institute of Economics, Administration and Law (Kazan). Address: Kreml, korpus 1, Kazan, 420014, Russian Federation. Email: ilalmaz@yandex.ru. This article analyzes the essential characteristics and the internal structure of the hypothesis, disposition and sanction as the prerequisites of legal norms. The aim of the research is to implement the idea of structuring the elements of norm according to their primary legal tools and identifying the regulatory function of law. The article is based on the comparative analysis of doctrinal works of many Russian lawyers. A special attention is paid to identifying specific types of legal measures within each element and a three-element model of the norm is substantiated. The author attempts to find out what can be opposed to this element of norm, as a hypothesis – disposition of norm, or can a hypothesis contain conditions to take measures reflected in sanctions. The conclusion is that the essence of a hypothesis is conditions significant for a state, distinguishing the negation of disposition as a hypothesis should be erroneous as the choice between following and breaking rules is possible only in the case of disposition. The author gives a positive answer to the question on the possibility to qualify norms of law as primary legal means. The attention is paid to the variety of approaches to the regulatory function of law. It may be static, dynamic or protective. In particular, obligation, restriction and stimulation or protection may serve as subtypes of regulation. Another question discussed is devoted to the nature and essence of limitation and ban. |
Russian law: conditions, perspectives, commentaries
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50–63
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Tarasova Ekaterina - Deputy Head, Secretariat of Council of Federation Committee on Federative Framework, Regional Politics, Local Self-administration and Northern Territories, Candidate of Juridical Sciences. Address: 26 Bolshaya Dmitrovka Str., Moscow, 103426, Russian Federation. E-mail: tarasova3000@yandex.ru. The aim of the article is to study the influence of subjective and group factors on political and legal processes in this country. The constitutional process is interpreted here as political. The article discusses the subjective influence on drafting a new Russian Constitution in 1993. The article examines the causes for establishing the specific body - the Constitutional council, distinguishes characteristics of its legal status. The analysis of shorthand reports of the Constitutional council, presidential acts and other original sources, the author shows that the committees of the assembly consisted of the people loyal to the then president B. Yeltsin. The article argues that the members of the Constitutional council reported to the head of state and working on the drafts of constitution followed the opinion of president or his direct instructions. This dependence though not financial, administrative, was psychological. As a result the RF President got the status of institution dominating all the branches. The article follows different disagreements, controversies and conflicts occurring during the activity of the Council. The author has revealed the role of and professional interests in shaping the approach to constitutional norms regulating in particular the institution of private property, right to education and the system of institutes of state power. Hence, the origins of the constitutional model have been analyzed. |
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64–68
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Markuntsov Sergey - Assiociate Professor, Department of Criminal Law, Law Faculty, National Research University Higher School of Economics, . Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation, Candidate of Juridical Sciences. E-mail: sam.hse@mail.ru. The article considers the problems of introducing into legal language the criminological differing from legal criminal law concept of crime and the concept of supposed crime. A number of Russian criminal study academics (L. Kondratyuk, V. Ovchinskiy, G. Gorshenkov) have attempted to define crime in terms of criminal studies. D.A. Shestakov suggests introducing supposed crime, besides the concept of crime. The scholar considers that criminal studies should primarily rely on material (sociological) definition of crime as crime exists independently from prohibition agreement. However, he thinks that criminal experts should have legal definitions for corpa delicti and their types. The author of this article finds this approach controversial. A rather vague concept of crime has been an umbrella concept unifying conceptual constructs of these branches. This opposition at a conceptual level will cause more opposition between criminal studies and criminal law and thus dissociation of the branches of law. The place of criminal studies has been changing in the system of legal subjects. Currently, Russian legal literature considers criminal studies as a legal branch. It seems that if a crime and a supposed crime acquire their own criminal study definitions, more significant question may arise, e.g. on arranging criminal research for criminal law, on a clearer division of the subjects of research and probably the necessity to develop additional sociological research within civil law sociology as part of criminal law. |
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69–79
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Pashchenko Andrey - LLM candidate, Department of Financial Law, Law Faculty,National Research University Higher School of Economics, Candidate of Medical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: apashchenko@hse.ru.
Khreshkova Viktoria - Lecturer, Department of Financial Law, Law Faculty,National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: vkhreshkova@hse.ru. The article reveals the factors which can promote to developing a single approach to regulating the disposal of pharmaceutical drugs aimed for clinical trials. The research is based on the Federal law of 12 April, 2010 № 61-FZ On Circulation of Pharmaceutical Drugs and other RF laws, the Register of medical organizations, decrees of the government and the RF Health Ministry, National State Standard (GOST). The authors criticize the provision under which the RF legislation does not provide any direct information on the pharmaceutical drugs intended for clinical trials. There is no differentiation on the concepts wastes of production and consumption, wastes of healthcare facilities, medical wastes. The control over the disposal of drugs intended for clinical trials are performed by three institutes: Federal Service for the Supervision of Public Health and Social Development, Federal Service for Supervision of Natural Resource Usage, Federal Service for Supervision of Natural Resource Usage. The legislation provides them a discretionary power if disputable situations arise. Interpretation of laws and norms lets the authors conclude that inferior pharmaceutical drugs are wastes of production and consumption but their handling is not regulated by the Law on Wastes of Production and Consumption. Applying normative basis has met challenges. The authors conclude that terminology requires unification and the law on handling pharmaceutical drugs needs development. |
Law in the modern world
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80–90
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Bogdanoskaya Irina - Professor, Department of Theory of Law and Comparative Law, National Research University Higher School of Economics, Doctor of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: ibogdanovskaya@hse.ru.
The current legal doctrine recognizes several reasons for classifying constitutions. One of them is the division of constitutions into written and unwritten. However, this reason is becoming obsolete. At the same time, the analysis of the constitutions functioning in the common law countries shows the relevance of the classification. Among the examples, the oldest constitution – in the US, the constitution compiled of acts in Canada, unwritten constitutions in the UK and New Zealand. The constitutions of common law countries are characterized with the balance of written and unwritten laws with a prevalence of the former one. Another aspect of the problem relates to the role of unwritten constitutions in the system of the sources of law. Constitutions are defined as the supreme law of a country. However, this definition is likely to recognize constitution as a source of law than determining its role in the system of such sources. The influence of the British principle of parliamentary rule on the role of constitution in the system of sources is significant. All the statutes are equal and can not have a higher or lower legal force. Recognizing constitution as having the supreme legal force will inevitably lead to the rejection of the principle and redrafting British constitutional law doctrine. The constitutions of common law countries have common and special features. Specific features of the constitutions allow arranging special groups. The constitutions of common law countries are evolving but unlike the countries of Roman and German laws, the evolution is represented with constitutional amendments. A significant role is played by cases interpreting old or unwritten constitutions enabling to adapt the constitutional provisions to the changing social environment. Case law provides for updating constitutions. However, constitutional reforms in certain common law countries pose a problem of changing traditional approaches and developing new doctrinal principles. |
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91–101
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Volkov Alexander - Deputy Dean of the Faculty of Law, Saint Petersburg Campus of National Research University Higher School of Economics, Associate Professor, Candidate of Juridical Scinces. Address: 17 Promyshlennaya Str., Saint Petersburg, 198099, Russian Federation. E-mail: akvolkov@hotmail.com. July 13, 2009, the EU Parliament and Council adopted Directive 2009/73/EC concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC which became a new stage of reforming the European natural gas market. Its aim is to create a competitive internal market of this natural resource, eliminating private and public obstacles, which should result in the dynamic development of the branch and better protection of consumer rights. The author of the article examines and gives a brief characteristic to the preceeding acts having regulated the relations in this sphere. Among the key clauses of the Directive are the following. If as of September 3, 2009, the enterprise owner is vertically integrated, the state is given a choice either to divide the property of the enterprise or at the proposal of the owner of the transportation system and approval of the Commission to set up an independent system operator or an independent transportation operator. If the state involved has decided to divide completely the property of the enterprise with vertical integration, the latter has no right to establish an independent system or transport operator. Afterwards, the enterprise performing the functions of production and shipment cannot implement control or rights regarding the transportation system operator. It is of note that the model of property and law liability division is supported by the minority of the EU states. The other countries have preferred the establishment of an independent transportation operator or independent transportation operator. This variant allows a vertically integrated enterprise to keep the right of ownership as to the transportation system but loses the control over its management – in the case with an independent system operator – completely and in the case with an independent transport operator – partially. The author arrives at a conclusion that the essence of Directive 2009/73/EC is progressive in terms of a single gas market in Europe but the result of the reforms will depend on the will of Member states. However, while some countries try to make a final decision or its form the majority of the member states have abandoned the monopoly in this sector, the companies of these states develop actively, make competitive advantages and conquer foreign markets. |
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102–117
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Postnikova Elena - Lecturer, Department of International Law, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: l_postnikova@mail.ru. The article contains a detailed analysis of the Directive of the European Parliament and of the Council on services in the internal market 2006/123. The sources analyzed include documents of various EU agencies and publications of foreign legal scholars. The study discusses the main amendments to the original Directive draft; the freedom to provide services and determines the scope of the Directive covering about 40% of the entire employment sector and gross product in the EU. A particular attention is drawn to the article 16 of the Directive providing a modern interpretation of a number of fundamental concepts (public order, state security, hurdle). This directive codifies the respect of EU member-states to the right of suppliers to provide services in a state other than the state of origin. The principle of the state of origin has been commented on in detail. It is fixed in the Directive implicitly and reduces the scope of law in the state receiving a service. The authors notice inaccuracies and ambiguities, in particular in art. 14 and 15 of the Directive. The Directive prohibits hindering to render services but codifies grounds which can limit the freedom of services by national acts. The authors conclude that it is impossible to assess the efficiency of the Directive. On the one hand, it aims to facilitate the procedure of rendering services. Its other purposes are freedom of registration for providers of services and increasing the quality of services. It is characterized as a part of measures to ensure the proper functioning of the internal market of services in the member – states. On the other hand, it remains unclear if the provisions in the Directive are efficient as it does not provide for sanctions against violators. The Directive may be described as a document of compromising and even imbalanced nature. It does not make up any uniform legal mechanism to regulate services. Hence, the Directive is criticized in the EU. |
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118–132
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Stieranka Joseph - Assiociate Professor, engineer of Bratislava Academy of the Police Corps, Department of Criminal Police. Address: Sklabinská 1Bratislava, 83517, Slovakia. E-mail:jozef.stieranka@minv.sk. Busarova Olga - Postgraduate Student, Pan European University, Bratislava. Address: 20, Tomasikova, Bratislava, SK-821 02, Slovakia. E-mail: obusarova@yandex.ru This article presents the most recent form of legal regulation in the Slovak Republic to prevent money laundering. It describes the reasons for its adoption and its compliance with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 On the Prevention of the Use of the Financial System for the Purpose of Money Laundering and Terrorist Financing. The body of the article is devoted to the duties of financial credit organizations and a special financial monitoring authority, which are established by Law of Slovakia No. 297/2008. The law represents an integral part of a compact system of various legal means and procedures at various horizontal and vertical levels aimed at eliminating legalization of illegal profits and financing terror communities. The law provides for three types of control over clients of financial and credit organizations – basic, light and extra. They are used at the discretion of a person in charge to the extent of danger for legalizing these incomes or financing terrorism. The extra control is implemented if the information received by the person in charge reveals a high level of danger to legalize incomes received criminally or financing terrorism by some clients. The other cases may apply basic control. It is obligatory if there are doubts on reliability and completeness of information on the client when establishing commercial cooperation and visiting a casino by an individual. This article also specifies and defines the key terms used in the above mentioned law, namely: suspicious transaction, fictitious bank, politician – a foreign public person, end beneficiary, operation (transaction), commercial cooperation, identification and identification verification. The conclusive part of the article describes the sanctions, which applied in case of non-performing the established duties. |
Discussion club
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133–181
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Luchterhandt Otto - Professor, University of Hamburg, Germany, LLD. Address: 177 Mittelweg, Hamburg, 20148, Germany. E-mail: ostrecht@jura.uni-hamburg.de. The paper studies the interpretation and understanding of human rights in the official documents of the Russian Orthodox Church (hereafter ROC) at the turn of the 20th and 21st centuries. The objectives of the research are to specify the specific features of of the approach of the ROC to secular (liberal) doctrine of human rights which is fundamental both for international conventions and liberal democratic constitutions. The basis of the article has become the fundamentals of the ROC on merit, freedom and human rights and the Fundamentals of the ROC social conception and Patriarch Kirill speeches. The author presents an argument that state may degenerate under the influence of totalitarian dictatorships which rejected the value of individual rights and this phenomenon should be tackled. He attempts to prove that the collapse of the Soviet system and new church government in the 1990s did not lead to the reform of the ROC institution. The liberal opposition within ROC was suppressed and the initiatives to cover the past of the church impartially were rejected. The current approach of the ROC leaders to the key problems of communication with people, society and state keeps showing lack of understanding of the essence of human rights as an integral legal institution, its democratic trend. Human rights are interpreted by the ROC as a de facto set of clauses as to rights and freedoms of a person and a citizen. The secular conception of human rights is understood as subordinate to their religious interpretation. In practice, the ROC hinders the implementation of legal rights for believers of other religions not forbidden by law – Old-believers, Protestants, Catholics. The author notices that this approach of church leaders goes against the RF Constitution of 1993. |
Book review
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182–194
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Gerasimova Elena - Assiociate Professor, Labour Law Department, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: egerasimova@hse.ru. October 21, 2011, the HSE Law Faculty hosted a meeting with Frank Hoffer, a senior research officer at the Bureau for Workers' Activities of the ILO (Geneva, Switzerland) and professor Hartmut Gerhard Seifert, expert in German labour law and the former deputy head of Wirtschafts-und Sozialwissenschaftliches Institut in Hans-Böckler-Stiftung (Germany). The central point on the agenda was "Non-regular Employment: challenges for society”. The meeting was arranged by the Chair of Labour law and Hans-Böckler-Stiftung (Germany) and the Centre of social labour rights. In particular, deregulation of labour relations and liberalization on the labour market in 2003 – 2004 were described. The article compiles the materials of the meeting and analyzes the opinions of experts and the major questions discussed. Despite the expectations of economists, the reform has not led to the development of labour market and, moreover, generated a number of issues, in particular the increase in the number of people with lower salary and low incomes. One of the topics was current and delayed consequences of temporary agency work in Germany, e.g. increase in the rise of potentially poor pensioners, necessity to take the burden to support financially such employees, low qualification of employees and investments in human capital assets. Another question discussed was that the problems of temporary agency work are under the attention of the ILO. He noted that the major role in social stability is determined by the fact which party takes the risks for the loss of job – employees, employers or state. He emphasized that currently most risks are on the employees and the ILO sees the task to shift the burden from the employee and spread it. |
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