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Legal thought: history and contemporarity
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3–16
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Gadzhiev Gadis - Head of the Civil Law Department, Law Faculty of the St. Petersburg branch of the National Research University Higher School of Economics, Judge of the Constitutional Court of the Russian Federation, Doctor of Jiridical Sciences. Address: 1 Galernaya Str., Saint Petersburg, 190000, Russian Federation. E-mail: ggadzhiev@hse.ru. Constitutional law space is part of conceptual space. Ontologically, the structure of constitutional law has three layers: legal principles, positive constitutional law, traditions and practice. The third layer may be noted as the one containing constitutional law ethics. Discussing the relations between these levels of law, it should be noted that they are not isolated either from each other or the reality beyond law. In particular, constitutional values codified in the constitution are not self-sufficient and hence, require evaluation in terms of ethics. The economic analysis of law supposes the interaction between the reality of law and the reality of social and economic relations. This approach is in line with the externalist type of legal argumentation and contradicts the internalist one. The constitutional law conceptualism is a type of legal positivism. One should consider the limits of conceptualism in law, not to exaggerate the significance of symbolic conceptual reality in the form of the text of the RF Constitution. The legal conceptual space is a place for real things and subjects on the one hand being their reflections and on the other hand attributing them with qualities and characteristics which they lack in reality. However, constitutional law should not exist separate from reality and it starts operating with symbolic patterns substituting the reality with fictions and an individual –whose supreme value is codified in the constitution - with a subject of law. Applying constitutional law axiology, the category of proportion (balance of values) is no less relevant. The principle of proportion being a constitutional value has become a universal method of solving legal problems in constitutional law. One of such problems is weighing conflicting binary legal values (freedom of expressing opinion and press and freedom of elections; interests of a parent and a child etc.). These paired constitutional principles may contradict and this dialectics makes up a dynamics of the entire space of the constitutional law reality. |
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17–25
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Endicott Timothy - Professor, Dean of the Faculty of Law, University of Oxford. Address: St. Paul Road, Cross Building Str., Oxford, OX1 3UL, Great Britain. E-mail: timothy.endicott@law.ox.ac.uk. In this article, the author analyses the controversial results of the application of the European Convention on Human Rights (ECHR) in the UK. These results cause tense relations between judges and politicians – implementing executive and legislative powers. At that, two sensitive for British justice issues are emphasized, i.e. national rules on immigration and the voting rights of prisoners, and shown that the deportation of illegal immigrants suspected of a crime doe s not consider the negative consequences of this act on their family life. The right to family life natural to EU law is vague and strange to British common law. When interpreting this abstract right, British judges find it challenging – they have to measure incommensurable, i.e. grave consequences of deportation for the family of the wrong-doer and state interests protected by immigration rules the principles of which are not expressed publicly. Another issue faced by British judges and politicians is the regulating the rights of the imprisoned. The blanket ban on voting by prisoners is incompatible with art. 8 of the Convention and art. 3 of Protocol 1 thereto. Besides, Parliament approved the Human Rights act one of the provisions of which obliges judges to interpret Statutory law according to the Convention. At the same time the European Court decided that article 3 of the Protocol excludes the total ban on the rights of the imprisoned. The article stresses that British lawyers and politicians who actively participated in the development of the ECHR did not foresee this development. Instead, the British were convinced that the Convention would not affect their legal practice. The author concludes that British courts improve their professional skills to protect the interests protected by the Convention. |
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26–56
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Get'man-Pavlova Irina - Associate Professor, International Private Law Department, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., 101000, Moscow, Russian Federation. E-mail: igetmanpav@hse.ru.
The article features the advantages and disadvantages of international law theory of statutes – a component of international law studies shown on the example of the French school of international private law (hereafter IPL) in the 18th century. The paper shows the cooperation between the representatives of the school with the parliaments of Paris and Burgundy and the attitude of French statutists to the problems of the conflict of laws theory. The author traces the development of the terminology, new to that time legal concepts including the laws of the country of citizenship. The analysis of views of leading French legal scholars reveals controversies and discussions. It has been stated that the French school interpreted Italian doctrine critically via the works of the Holland Schools adapts. The ideas of the French school tended to adapt natural law which dominated law and equity. The author argues that all the followers of the French school promoted to universal unity. However, soft spots have been revealed. In particular, Frolan failed to study a rich legal practice on international private law of the 18th century France. Scholastic method dominated in the works by Bullnoir who created artificial legal patterns. The author prefers the works by Bouye who managed to reflect the imperatives of the 18th century historic reality and focused on the theory of public order. Unlike the other representatives, Bouye approached closer to the ideas of international communication, social necessity and common benefit. The author makes a conclusion on a positive contribution of the French school of international private law to systematizing legal knowledge and legal science. |
Russian law: conditions, perspectives, commentaries
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57–73
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Sivitsky Vladimir - Professor, Department of Constitutional and Administrative Law, Faculty of Law, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 17 Promyshlennaya Str., Saint Petersburg, 198099, Russian Federation. E-mail: Vladimir.Sivitskiy@ksrf.ru. The federal law On the Constitutional Court of the Russian Federation does not apply the category type of judgement of the RF constitutional Court. Article 71 thereof specifies the types of documents: determination, definition, and decision (in its narrow meaning). Within this type, one can find groups of decisions on their purposes, legal terms of acceptance or stages of adopting. These groups are recommended to name the types of decisions of the RF Constitutional Court. The types of the decisions have remained the same since the adoption of the current law On the Constitutional Court. This typology is more flexible. As the major changes in the typology of the Constitutional Court decisions, the attention is drawn to the following: type of determinations of the RF Constitutional Court adopted without debates which is provided by the changes in the Russian legislation enabling to consider some cases in the RF Constitutional Court without public hearing; removal of the decisions adopted by the Constitutional court chambers. Since 2011, all the cases have been studied by the entire Court banc; absence in the Constitutional Court practice of the determinations which admit a norm as unconstitutional. As a rule, a norm is recognized unconstitutional partly; disappearance of the Constitutional Court Decisions with “positive content” revealing constitutional law essence of the norm; emergence of definitions on discontinuing correspondence with the claimant in the event of the additional address to the Constitutional Court the decision on which was made. Before, such decisions were made by the head of the Constitutional Court administration. The new rules provide an additional insurance of the judicial protection of the rights of the claimant. |
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74–79
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Polyakova Tatiana - Honoured Lawyer of the RF, Doctor of Juridical Sciences, Senior Researcher of the Russian Legal Academy of the RF Ministry of Justice. Address: 2 Azovskaya Str., Moscow, 117638, Russian Federation. E-mail: polyakova_ta@mail.ru Zimin Igor - External Doctoral Student, Department of Informational Law, Informatics and Mathematics, of the Russian Legal Academy at the RF Ministry of Justice Address: 2 Azovskaya Str., Moscow, 117638, Russian Federation. This paper studies the most topical aspects of legal security of electronic documents – a relatively new phenomenon which has become common after a modern telecommunication infrastructure has been developed. The source for the analysis are The strategy of information society in Russia, federal laws from the 1990s to 2010, bylaws, works of Russian legal scholars and experts. Legal regulation of electronic documentation is regarded by the authors within the concept of the RF single information space, which implies the necessity to transfer to electronic communication of all state institutions, agencies and people. The paper defines a number of concepts including electronic document, legal relevance of electronic document and the legal regime of electronic documents. The examples show the evolution of the terminology of the Russian legal science. It is noted that the concept of legal regime is efficiently studied by the specialists of various branches of law. Though many definitions have been proposed, there is no single one. Hence, in many legislative acts and codes, the definition of legal regime is either absent or is shown through norms referring to other legal acts. The work analyzes various challenges relating to the necessary legal regulation of legal force for an electronic signature. The article mentions the lack of conceptual interpretations of the issues as to legal force of electronic documents. The authors propose a number of their own definitions and conclude that the question on the limits of the legal regime for an electronic document remains open. Furthermore, attention is required to the legal regulation of creating, copying, storing and spreading electronic documents, as well as the requirements to various such documents. |
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80–98
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Panov Alexey - postgraduate student, Russian Academy of Justice. Address: 69, bldg.A, Novocheryomushkinskaya Str., Moscow, 117418, Russian Federation. E-mail: alex@panov.in. In this article, the author deals with the problem of applying in courts the provision of insignificance and analyzes examples from judicial practice. In particular, the author argues that the provisions on insignificance of public offences may be applied in formal cases. This allows assessing if the damage or threat of bringing harm relating to the guilt of the person subject to court investigation is insignificant and negligible. Damage or its threat are subject to checking and proving with the purpose of ascertaining if the offence was committed or ascertain if it was minor. The author proves that the issue on the insignificant offence requires not only consequences but the extent of damage (harm) relating to the guilt of person under investigation. The conclusion is that if the insignificant offence may be at least one of material elements of the offence – the real consequences (threat of their occurrence) or the guilt for them – the offence is minor. However, if the real (or implied) consequences and the guilt as a possibility to foresee these consequences and failure to act to avert them is significant the offence is not minor. The author concludes that the absence of the concept of insignificance in the RF Code of Administrative Offences and its multiple interpretations give rise to the question what is to be done? The article suggests two answers. The first is to eliminate this institution from the Code of Administrative Offences as it involves many evaluating elements and arouses controversies in legal practice. The other variant is to include the concept of insignificance into the RF Code of Administrative Offences. |
Law in the modern world
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99–108
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Danilov Sergey - Professor, Department of Constitutional and Municipal Law, National Research University Higher School of Economics, Doctor of Historical Sciences. Address: 20 Myasnitskaya Str., 101000, Moscow, Russian Federation. E-mail: sdanilov@hse.ru. The article is devoted to general and specific qualities of the former and current status of the province of Quebec, Canada. The objectives of the research is to analyze the fundamental and political facts and processes which may be explained by the alien nature of Quebec as part of the Canadian federative state which is inhabited mainly by English-speaking people. The author has used various materials – the Canadian Constitution, laws of provinces, doctrinal works and the research of legal academics. The article shows that the problem of Quebec referred to as French-Canadian is the most crucial and challenging of the Canadian statehood. As a drawback of the constitution, its vague language has been mentioned, as well as irrelevant use of fundamental terms by the founding fathers of the federation. With their wide interpretation in Quebec, they have given the province the opportunity to require a special status within the federation since the second half of the 19th century. The controversies among the articles and other constitutional norms codifying the bases of symmetrical federalism based on the equality of rights of the provinces. The article traces intense and politically reckless attempts of Quebec political institutions to achieve sovereign rights of the province bypassing common norms of constitutional and international law norms. A special attention has been paid to the interpretation and meaning of the verdict of the Canadian Supreme courtReference re Secession of Quebec 1998, the Clarity Act, 2001, The Québécois nation motion, 2006. The author notes the exclusive status of Quebec on language, culture and social programs. |
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109–135
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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. |
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136–143
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Maralbaeva Aliya Shamsudinovna - postgraduate student,Department of Theory and History of State and Law,Kyrgyz-Russian Slavic University. E-mail: aliya.m@inbox.ru Address: Chui St., 42, bldg.7, 720065, Bishkek,KyrgyzRepublic The article is devoted to the main stages, features and tendencies of the Kyrgyz Republic’s (KR) legislation system development. It analyzes KR’s constitutional acts, industry codes, legislative acts, international law acts. It reveals the key problems of KR’s legislation of the transitional period. For this purpose, fundamental works of legal scholars on the transitional period law have been examined; the influence of Kyrgyz common law norms on modern Kyrgyz Republic’s legislation system has been researched; and some practical problems of the legislation system development have been examined and some solutions have been suggested. One of the objectives of the article is to study disadvantages of differentiating branches of legislation. One of them includes the branches eponymous to the branches of law and the other complex branches of law involving the norms of various legal branches. Much attention has been focused on the emerging group of autonomous complex branches of law which include in the opinion of the author investment law and information law. The former relates to the sub-branches of all the three branches – international private law, foreign economic relations and capital development. However a more relevant laws on information belongs to one of sub-branches on culture under KR’s legal classification code. The criterion for this legal differentiation is considered unclear. Legal information data bases, have no state status and render paid services. The author concludes that KR does not have an access to legal information. However, as positive trends the article specifies systematization of national legislation, absorbing positive trends of international law,. The author pays attention to the connection between the development of the system of legislation and political transformation of the KR. |
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144–164
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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. As of today, the international private law is experiencing recodification represemted in the substitution of codified autonomous acts with new laws. The recodification restores national international private law with a focus on the latest requirements of international civil norms. This is conditioned by the fact that the countries of South East Asia are shaping civil legislation including collision laws on the basis of foreign experience. The law drafting activity considers own and foreign experience, in particular of Germany, Switzerland and Italy. The main function of the codification is that it should overcome legal inflation, i.e. the legal crisis by adding legal aspects into the legal relations under development. A special of modern codifications of International private law in South East Asia is seen in a systematic more accurate way of formulating norms and institutions of the law. The current codifications of the international private law require new interpretations of such institutions as autonomy of the parties, principle of the closest connection, renvoi and circumvention of law etc. A Chinese law of 2010 shows that the Chinese pattern has taken partial codification: a legal norm contains provisions concerning civil law relations with a foreign component and points concerning family inheritance law and employment relations. An obvious advantage of the Chinese law of 2010 is the defence of a weaker party in legal relations, a more flexible approach as to the law on foreign organizations and making close link principle dominating for Chinese collision law. The 2006 law of Japan borrows much from the 1898 law but sets up a detailed and modern regulation. This legislative rule is detailed and concise. A special attention is paid to international family law and contractual and extra-contractual obligations in particular the regulation of consumer contracts. Hence, this article is devoted to the complex analysis of governing modern independent codifications of private international law in the countries of South East Asia. Within the framework of the article, the detailed analysis is implemented as to the national-legal regulation of laws in the field of private international law in China and Japan. The analysis has included the major institutes of private international law, and questions concerning hereditary, family, tort, property and liability law. |
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165–172
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Belkin Leonid - Senior Researcher, Director of Firm Analytik (Ukraine), PhD (Engineering). E-mail: belkinleonid@list.ru Address: Lenina St., 58, Kramatorsk, the Donetsk region, Ukraine The article features the case practice of the European Court of Human Rights when resolving disputes on restricting freedom of artistic expression. It stresses that the constitutions of all modern states identifying themselves as democratic codify the right to artistic expression. However, the evaluative character of the concepts relating to artistic expression gives rise to interpretations of state bodies and supporters of restrictions. As a result, a necessity arises to call an external moderator who could give an independent evaluation to the grounds for restrictions. The European Court of Human Rights may serve as this moderator. The author tries to specify general principles and approaches of the court to solving these issues. The article shows that in democratic society, the presumption of the freedom of artistic expression should be deemed absolute. The key principle to justify the restrictions of rights and freedoms is the necessity of the restrictions in a democratic society. However, the rights are prioritized. In particular, restrictions as to arranging rallies may be imposed only in emergency situations to avert an evident threat, but not in the interests of powers. The burden of proof for restricting freedom of expression should be laid on the initiator, primarily the state. This restrictions should be based exclusively on law and meet the requirements of a democratic society. The European Court of Human Rights considers the restrictions imposed on artistic expression for a very limited range of cases, i.e. if they are aimed to avert the mockery of national minorities or believers, to protect the most vulnerable groups – children and teenagers, if there is a threat that these groups may access information and ideas which can harm their moral development; and in the case of private life – from unjust intervention if the victims do not perform public functions. |
Legal education reform
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173–188
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Kozyrin Alexander - Professor, Head of the Department of Financial Law, National Research University Higher School of Economics. Doctor of Juridical Sciences. E-mail: kozyrine@mail.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. The article discusses special features of teaching financial law (as well as other subjects of financial law specialization). A significant attention is drawn to the role of the LLM program under its status among other stages of education according to the educational reform which has started at the end of the 20th century. It is noted that the current RF law On Education,1992 is becoming obsolete. LLM programs have been introduced almost in all Russian universities. The paper poses a question if LLM programs in Russia are the main and final stage of university education (entitling to a diploma) or it represents a research stage (entitling to the first academic degree)? Ambiguity is seen in the successive character of LLB and LLM programs as well as LLM and postgraduate programs, LLM and candidate of science degrees. It is stressed that the standards of the Education Ministry make the disciplines financial and tax laws obligatory for LLB programs overlapping. However, LLM programs are open for those who do not have an LLB degree and thus such students did not study the subjects vital for lawyers. The author makes a number of proposals to improve the situation. He argues that LLM programs should be an integral part of university legal education, but postgraduate programs should serve as a post higher education qualification process. Most disciplines on finances and law may be taught in an abridged form at LLM programs. However, postgraduate programs require a more scrutinized approach to teaching them. In particular, the discipline History of Financial Law may last for one or two years on postgraduate programs. At the same time, the author is against amalgamating financial private law and civil law. |
Book review
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189–193
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Romanovskiy Georgiy Borisovich - Head of the Department of Criminal Law, Penza State University, LLD. Address: Krasnaya St., 40, 440026, Penza Romanovskaya Olga Valentinovna - Professor of Department of Orivate and Public Law, Penza State University, LLD Address: Krasnaya St., 40, 440026, Penza The aim of the publication is to provide substantiated evaluation to a multi-author book devoted to legal regulation of use and protection of Russian forests. The topicality of the research is based on the fact that Russia remains the largest forest power. The objectives of the review is to determine to what extent the authors of the work have developed this topic. As a positive fact, it is noted that the research has been done in the public law paradigm (not private law) and it is based on an extensive judicial material. The work outlines the competencies of different levels and structures of public power in Russia. The book shows reasonably the forest legislation overlaps non-profile branches of the RF legislation., i.e. civil, land, water, environmental etc., which inevitably leads to conflicts. The work criticizes the RF Forestry Code of 2007. Its major drawback is the lack of the definition for the subject of regulation which is forest relations according to the authors. Besides, the norms are written in an intricate language and redundant with inaccurate wording. Its enactment according to the book has worsened the mess about various issues of forestry management. The book makes practical suggestions. In particular, to unify the concepts contained in various legal acts; correct the conceptual mistakes of the Forestry Code; adopt model regional laws. Among the soft spots of the book, the reviewers mention insufficient attention to the analysis of legal regulation keep the biological diversity which are of value to implement the constitutional right of every person to favourable environment. |
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