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Legal thought: history and contemporarity
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3–6
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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 publication contains the interpretation of such a fundamental legal concept as the mankind in terms of international outer space law which has become a component of public law since the second part of the 20th century. The topicality of the law is seen in the tendency toward the overpopulation of Earth. The author argues that the source of outer space law is an international treaty. Such a document contains legal norms which provide all the states with certain rights and imposes obligations. It has been stated that legal concepts fixed in an international treaty may be universal depending on the number countries participating in the treaty. Common norms of international outer space law were made up in a relatively short period 1963 – 1976. The norms are: 1) Test Ban Treaty, 2) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 3) Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space. As auxiliary documents two more may be mentioned. i.e.Convention on International Liability for Damage Caused by Space Objects and Convention on Registration of Objects Launched into Outer Space. The Treaty on Principles refers regularly to the interests of the mankind. Its preamble states great perspectives being opened for the mankind in the outer space. This treaty and Agreement on the Rescue of Astronauts, the Return of Astronauts presents astronauts as representatives of the mankind in the outer space. Both international conventions mentioned above start with words on the mankind. Referring to the RF Constitution proclaiming Russia part of the international community, the author makes a conclusion that the international treaties and conventions in question is binding for the Russian Federation. |
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7–28
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Syukiyainen Leonid - Professor, Department of Theory and Law and Comparative Law, National Research University Higher School of Economics, Doctor of Juridical Sciences. Email: leosyk@mail.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. The article focuses on the development of the concept of human rights in the major modern religions and the comparison of the concepts with secular liberal theories. The sources of publications are the works of legal scholars and theologians, encyclicals of Vatican. The article notes that the impulse to the process was the decrease in the influence of the major religious theories which used to play a role in the development of the human right theory. (Undoubtedly, the world is obliged to the western world and Protestantism with recognizing the freedom of faith). Then, the major religions lost this domination and did not draw significant attention to the problem until the end of 20th century. The domination in shaping and defending human rights came to the secular liberal theory. The author argues that the current religious theories on human rights as a response of churches of different religions to liberal thoughts. Buddhism sees in a person a particle of cosmos. It makes an accent on duties and responsibility is more important than fairness. The Orthodox doctrine uses the idea of conscience and dignity which requires getting a person released from sin. The doctrine of Islam agrees on the liberal theory though makes in practice focus on respect to local traditions and their conservation. The priority belongs to ethics but not the norms of international treaties and conventions. Some laws read that the state defends the rights of a person according to Sharia law. A person may criticize religion in public. The religion not tolerating criticism is totalitarian. However, Protestantism warns that human rights may be an instrument for those who has succeeded in life. The question on the possibility to take into account religious views within the framework of human rights legal theory remains open. |
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29–55
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Eleftheriadis Pavlos - Professor of Law at Mansfield College, University of Oxford Adress: Oxford OX1 3TF, United Kindom The theory and practice of parliamentary sovereignty is one of the key problems of the constitutional theory and practice. The article features a critical interpretation on the basis of the comparative law methods such as uniqueness and self-sufficiency of the doctrine and practice of the British parliamentary sovereignty (superiority). The author emphasizes that these postulates supported by many legal academics including Dicey and Wade did not allow comparing Parliament with the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty as a legal and constitutional doctrine shows that this first impression is false. According to the author, the nature of the British unwritten constitution is entirely similar to the written one prevailing in the US or Germany. This is because the doctrine of parliamentary sovereignty does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the US Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a pouvoir constituent. The principles of constitutional order are numerous, they support each other and become efficient in the process of interpretations and debates. They cannot be incorporated into an integral written document. Hence, abstract constitutional patterns are developed on the particular to general principle and not vice versa. Legal interpretations breathe life into our public institutions, which may be accompanied with dynamism and inevitable modifications. The author arrives at a conclusion that the source of constitution is represented with law originating in the combination of moral and political principles breathing life into our public institutions. |
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56–61
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The article written in the memory of Vladimir Tumanov (1927 - 2011) an outstanding Russian constitutional law scientist is a collective work. It is based mostly on the recollections of Tumanov’s friends and colleagues who knew him for a long time. The article describes a many-year research, organizational and editorial activity of Tumanov in the prestigious academic Institute of State and Law where he headed successfully the Sector of Foreign State and Law. Under his supervision the sector became the alma-mater of qualified experts in constitutional law who specialized in western constitutionalism. The authors write about the analytical works written by Tumanov in the 1960s – 1970s, his high quality translations of French research works. The article stresses one circumstance, i.e. despite the hegemony of the single-party dictatorship which interfered the research process by means of ideological postulates and was not beneficial for a creative approach to the reality, Tumanov’s articles and monographs were characterized with seriousness, impartiality in the coverage of subject-matters. It has been noted that this quality was no less applicable to the works written in the sector on constitutional law research, the political parties of the western countries, their parliaments, judicial system, and many aspects of foreign constitutionalism. Many of the works prepared and published at Tumanov’s initiative contained deep conclusions and evaluation which remain topical until now. Despite obsolete factual material, these works are highly appreciated by Russian constitutional lawyers, continues to serve as a benchmark and methodological basis for legal analysis. The article touches upon the state career of Tumanov, who at the end of life became the Deputy of the State Duma and later the Head of the RF Constitutional Court (1994 - 1997). |
Russian law: conditions, perspectives, commentaries
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62–80
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Krasnov Mikhail - Head of the Department of Constitutional and Municipal Law, Faculty of Law,National Research University Higher School of Economics, full professor, Doctor of Juridical Sciences. E-mail: mkrasnov@hse.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The article considers the questions concerning public authority institutions and the regime of participating in the development of economic policy, regulation of the policy by legislation and the purpose of its regulation. The author also considers existing and relevant to modern Russian reality conditions to work out economic policy and opportunities to observe the requirement of succession. For the purposes of the paper, the author defines the economic policy of state as a system of legal, material, organizational and other legal measures to influence economic relations and their subjects to achieve strategic priorities, directions, objectives. The mechanism to work out economic policy is a system of interaction between the bodies of state power to determine strategic aims, priorities, tactic aims and means of political influence on economic relations. Firstly, the article considers political conditions to develop the economic policy of Russia. The analysis allows making a conclusion that the absence of political competition has led to the situation in which all significant economic and social reforms were carried out on a non-competitive basis, i.e. the conditions in which political decisions became technical. Secondly, the analysis has been conducted as to legislative regulation of the mechanism to work out economic policy primarily the federal law On state forecasting and programmes of social and economic development in the RF. The main part of the article deals with disclosing the subjects to work out Russian economic policy, i.e. President, government, parliament and the RF Central Bank. The part studies the competencies of each institution. The article arrives at a conclusion that the mechanism to develop economic policy in Russia is monosubjective. With some authorities relating to economic policy belong to the RF Government and federal executive bodies reporting to it, the RF Central Bank and the Federal Assembly, the dominating role to determine the major economic priorities belong to the RF President. |
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81–93
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Petrov Alexey - Professor, Labour Law Department, National Research University Higher School of Economics, Doctor of Juridical Sciences. E-mail: alexey.petrov@yandex.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. The article is an attempt to develop new approaches to define the essence and legal nature of working time which is a major institution of labour law. The sources for the analysis are the RF Constitution and Chapter 4 of RF Labour Code, conventions of international law, works of modern Russian experts in labour law. Some norms of foreign employment legislations of France, Belarus, the UK have been touched upon. The author examines the concept of working time its essence and types. It is noted that working time is being studied in many areas including law, psychology, sociology, applying different methodological approaches. The paper analyzes advantages and disadvantages of legal regulation of working time in the RF. Among the advantages, the author mentions a clear separation of working time from leisure, limiting extra hour work and labour in harmful conditions. As to the disadvantages, he specifies illiterate definitions of working time in terms of law as they may be affected by ambiguity and do not promote to efficient labour. The author proposes the following suggestions. The definition of working time in Chapter 1 of the RF Labour Code should differentiate legal relations and their grounds. As Russian labour law regulates labour relations but not working relations, it seems relevant to remove the ambiguous concept of working time substituting it in the Labour Code, legislation collective and employment agreements with a more precise term. The term time of labour is suggested. Third, the sources of Russian labour law should not contain the categories of working time. In particular, it is irrelevant to specify subcategories of work beyond normal working time besides overtime work and overwork. |
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94–115
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Shatalov Alexander - Professor, Department of Judicial Power and Justice, Law Faculty, National Research University Higher School of Economics, Doctor of Juridical Sciences. E-mail: asshatalov@rambler.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. The article deals with the questions relating to the appeal process enacted January 1 2013. It features the genesis of this legal phenomenon and the problems of optimizing its regulations in the current RF legal procedure law. Describing new procedural stages, the author tries to understand the necessity to spread the process of appealing on court decisions on all the Russian legal system levels. The author argues that a wide range of competencies for appeal courts promotes to the implementation of the right of citizens to legal defense stipulated in article 46 of the RF Constitution. This right presupposes not only providing the opportunity to people to strive for correcting mistakes if they were when the cases were considered by local courts but allows the parties to be involved in studying proofs, show new evidence and stand their ground in court actions. Having analyzed new legal proceedings, the author makes a conclusion that the current legal proceedings has some advantages, the main of which is that the institution of appeal ensures the opportunity to implement the only legal means intended to provide justness of preliminary and final procedural decisions on criminal cases. This paramount procedural guarantee is supported with the option to review of each decision should be done by a higher court, i.e. experienced and competent judges. Secondly, the process of checking their legality, validity and fairness must be based on oral and scrutinize examination of research of not only the evidence those collected but additional evidence, but not on the basis of studying the materials of the criminal case. Finally, to correct mistakes, courts of appeal may deliver its own judgment without returning the case to the court of the first instance and the decision may be absolutely different from the one which was appealed. |
Law in the modern world
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116–142
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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 studies the role of the EU Court in terms of the growing role of private law in the EU law, the evolution of reference procedure, concerning private law and the fragmentary nature of the EU private law legislation. Currently, the EU court practice is characterized with uncertainty and incompliance (as shown by some examples relating to the Brussels Convention) as to the issues of review for unfair conditions of consumer contracts and compensation of non-material damage. The necessity for general principles of the European private law can be to some extent satisfied with the Principles of European Contract Law and the Common Frame of Reference (CFR). These documents give an opportunity to make more principal decisions as recommended by the EU Court. Additionally, the article raises a question if the EU Court is an adequate judicial body to settle private law disputes in the union with 500 million people population. Though the practice of making up judicial chambers from among the judges of different member states should be kept, a certain decentralization at the level of the General Court, that is the former Court of First Instance is recommended. |
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143–154
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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 subject matter of the publication is models of regulating bank deposit in various legal systems. To study the models four countries have been chosen: Russia, the UK, France and Italy. The sources studied are cases, norms of codes, international law acts, research of Russian and foreign experts. The author determines the area of bank operations as an element of common contract law within civil law. The author notes the differentiation of legal regulation of the transactions in particular their inflexibility in France and their laconic nature in Italy. British legal regulation is seen characterized with the fact that the relations between the bank and client are similar to those between the debtor and the creditor and under case law the role of debtor is given to the bank. British practice does not know the term bank deposit. It applies interest-bearing account. Saving books are rare in the British legal practice. France prefers regulating most questions relating to bank deposits by legislative acts and codifications (codes of a certain area of law). France applies a complex classification of bank deposits: 1) regular accounts, 2) people’s accounts (for people with low income), 3) for minors under 12 years of age, 4) accounts to acquire real estate. According to the author’s observations, the Russian Federation practices the regulation of bank deposits close to the balanced one. Russian legislation considers bank deposit agreement as belonging to public law but not private law and applies stricter requirements to the banks offering deposit accounts for individuals. Under the RF Civil code, the bank may not deny to conclude a deposit agreement. The law protects the right of the depositor to alter the previous decision and despite the freedom of contract p principle to restrict the right of the bank to modify the terms of the agreement arbitrarily. The author arriives at a conclusion that the further regulation of bank deposits will probably follow the way of minimizing risks of rather economic than legal nature. |
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155–172
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Osipov Alexander - Doctorate candidate, Institute of Sociology, Russian Academy of sciences, Senior Researcher of The European Centre for Minority Issues ( Flensburg, Germany), PhD (History). E-mail: aosipov1@gmail.com Adress: Schiffbrücke 12 Kompagnietor D-24939 Flensburg
The aim of the work is to analyze the interaction between international law norms and the practice of ethnic and cultural autonomy. The main question under discussion is on the forms of encouraging and limiting an ethnicity-based non-territorial autonomy by international law. The source based of the article is the UN Declaration on the Rights of Indigenous Peoples, documents of the Council of Europe, the Charter for European Security. The author states that a single interpretation of cultural autonomy has not been formulated either in legal theory or in practice. Terminology has not been settled either, i.e. the terms national cultural autonomy, personal autonomy may have contextually different interpretations. For example, the concept of subject of autonomy is understood and denoted differently. Political and legal documents on the subjects are too general. The author suggests his personal interpretations. He understands autonomy as a category of practice without any single interpretation and hence gets two major interpretations. According to one of them a non-territorial autonomy is a collective right to develop ethnicity, language and culture. According to the other interpretation, this is providing some public functions and resources to autonomous ethnic organisations. Wider concepts of the so called soft law include the concept of non-territorial autonomy or self-regulation. They are of declarative nature, and hence cannot be instruments. However, there are more specific applicable norms and practice of international organizations working on the second interpretation of non-territorial autonomy. However, these approaches are of limiting nature. The author notes that these approaches do not have contradictions as well as any demarcation line. In practice, they are overlapping. Practical activity becomes of symbolic value and interpretations may be the aspect of political actions. The author sees the root of the contradictions in the difference between symbolic and instrumental policy. |
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185–189
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Mishina Ekaterina - Assistant Professor, Department of Constitutional and Municipal Law, PhD (law) National Research University Higher School of Economics, E-mail: e.mishina@gmail.com Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
Stolyarov Dmitry - Professor, Deputy dean of the Faculty of Economics,University of Michigan, Ph.D. Adress: 238 Lorch Hall 611 Tappan St. Ann Arbor, MI 48109-1220 |
Legal education reform
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185–189
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Kamolov Sergey - Head of the Legal Department, Ministry of State Administration, information technologies of communication of the Moscow Region, PhD (Economics) Address: Krasnogorsk-7, Bulvar Stroiteley, 1, 143407, Moscow, Russian Federation
Korzhov I. - Head of the Legal Department, Ministry of State Administration, information technologies of communication of the Moscow Region Address: Krasnogorsk-7, Bulvar Stroiteley, 1, 143407, Moscow, RF The competence and qualification of state officials in Russia in the context of modern requirements determines quality and efficiency of state administration in Russia. The changing reality affects the requirements to state and municipal officials – the main instrument of state in the regulation of public processes. The paramount value among the criteria is seen in the skill to take and implement optimal decisions. The authors examine the federal program Reforming and developing system of RF State Service, 2009 – 2013 and the RF President’s Decree On the Major Trends in Improving the System of State Administration, 2012. Describing the shortage of competent administrators, the authors specify the causes of this phenomenon: 1) lack of the codified system of legal acts on state service, 2) education of officials for courts, prosecution offices, police internally and 3) inferior quality of education in other commercial educational centres. The proportion of disciplines to prepare administrators in Russia’s humanitarian universities makes up only ten per cent. The authors suggest and justify practical solutions. They suggest starting the reform of state and municipal services at the regional level and specify its results in legal documents. This will let effectively arrange an integrated legal basis for all levels and chains of state and municipal bodies. It is required to codify stricter approach to tasting knowledge in law and economics when hiring a state official with the requirement of having sufficient information and communication skills. |
Book review
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190–194
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Danilov Sergey - Professor, Department of Constitutional and Municipal Law, National Research University Higher School of Economics. Doctor of Historical Sciences. E-mail: sdanilov@hse.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The aim of the author is a review of the book by a British academic N. Barber The Constitutional State which came out in Oxford in 2010. The aim of the review is to show Russian readers specific approach of the researcher to the major problems of democratic constitutionalism. The interdisciplinary complex methodology of the author who writes that he considers constitutional theory as a discipline incorporating all the social branches deserves a special appreciation. The reviewer evaluates positively Barber’s skill not to declare dogmas but analyze controversial questions from different views providing an opportunity to his academic opponents and then give reasonable generalizations. The author chose an easy to comprehend writing style. In this regard Barber’s book has more advantages compared to many textbooks. Many experts are recommended to follow his model. As to the disadvantages, the reviewer specifies the following. First, Barber has not touched upon the ways of adopting and reviewing constitution, federalism, election process, democratic institutions, political parties, legislative and executive power, which reduces the limits of the subject matter. Secondly, he studies the evolution of the constitutional democratic state as a continuous permanent process of moving forward. The Oxford scholar has given a scarce outline of failures and regress in the constitutionalism in Germany, Italy, Russia, Japan, Spain, France, China and Chili. Hence the author has underestimated challenges experienced by countries when building constitutionalism. |
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