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Legal thought: history and contemporarity
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3–15
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Antonov Michail - Assistant Professor, Department of Theory and History of Law, Faculty of Law, Saint Petersburg Campus of National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 17 Promyshlennaya St., Saint Petersburg, 198099, Russian Federation. E-mail: mantonov@hse.ru. This article deals with the general characterization of the legal conception elaborated by the 20th century prominent jurist Hans Kelsen (1881—1973). The author examines the major stages of the biography and intellectual formation of this Austrian legal thinker. The author particularly stresses the relationship between Kelsen’s ideas about law, and his practical activity as law professor, jurist, and judge. A special attention is drawn to the period before the Second World War. Kelsen formulated crucial for legal science questions i.e. questions relating to the grounds of efficiency for legal norms, epistemic conditions of a single legal order, on interconnection between law and state. Hence, the problems were discussed by Kelsen in terms of democracy, equality, rule of law. Modern European legal academics refer to the ideas of the Austrian legal scholar regularly. The main perspective of Kelsen’s concept is the original interpretation of the rule of law within the version of legal normativism which has been referred to as pure theory of law. Kelsen’s theory of law was a theory excluding all the components strange to legal thinking. Legal studies should focus not on social or ethical grounds of legal norms but specific normative essence of law. This interpretation without reference to sociology, ethics and other social sciences has given an opportunity to overcome ideological tendencies and describe the law as it is without justifying or criticizing it. Currently, Kelsen’s theory is a locus generating academic discussions on legal norms. His legal theory is complicated, it is controversial and has different interpretations featured in the article. |
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16–37
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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. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. Email: leosyk@mail.ru. Since the end of 2010, many Arab countries have entered the period of political crises and radical changes referred to as the Arab spring. Islam has played its part in this process but overall, it was not the major factor which triggered these events. At the same time, the political development of the most countries in question before the Arab spring was characterized with the fact that Islam was used as an ideological weapon by the opposition. Though the Islamic political forces which used religious rhetoric were not the initiators of toppling the regimes, they managed to gain momentum and usurp power in some countries such as Tunisia and Egypt. Having become political leaders with actual powers, the Islamic forces did not cease to address the Islamic legal rhetoric to justify its political course. The role of Islamic ideology in political competition increased even more. Several major conceptions of the modern Islamic thought may be distinguished. They are different primarily Sharia criteria underlying each of the conceptions. The choice of the guidelines is characterized by the influence of certain Islamic leaders and religious centers on the government. Interwoven theoretical and political guidelines are well noticed in the approach to the modern Islamic legal thought to the problems which generated the Arab spring and the ideological debates on it. There is a set of topics with two dominating, i.e. the Sharia attitude to demonstrations and the Islamic view of protests against the political regime. Some Muslim political experts and lawyers consider demonstrations unacceptable, other use various Sharia arguments supporting mass protests in the streets. These differences show the overall attitude of the government. The Arab spring triggered a new trend in the Islamic legal doctrine referred to as fiqh revolution. Gradually, it may evolve into part of the modern Islamic political and legal thought. |
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38–63
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Get’man-Pavlova Irina - Assistant Professor, International Private Law Department, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: getmanpav@mail.ru
The paper features the concept of politeness developed by Ulrich Huber (1636 - 1694), the 17 th century lawyer. This author’s works were the quintessence of the Dutch conflict of laws theory. Huber’s works show in relief the doctrine of international politeness underlying the Dutch school of statutes. The doctrine of international politeness represents a most important but the least realized canons of law used by courts to resolve the disputes associated with foreign laws. The challenge to define international politeness may be accounted for the fact that the previous research has not dealt with the historical aspect of the conflict of laws. This problem has remained relevant which requires its scientific study. The doctrine of politeness as we know it arose in the 17 th century at the time of emerging national states in Europe. It was founded by the lawyers representing the prosperous Dutch middle class. Though the theory was coined by Pavel Voot, it was popularized by Ulrich Huber. He was the first to introduce the phrase comitas gentium to describe the application of foreign law and the development of international politeness starts with him. Huber’s axioms outlined the most relevant issue of the conflict of laws, i.e. how international law can be applied within national jurisdiction if this law lacks any territorial nature? Actually, this scientist was the first who attempted to clear up the most controversial and ambiguous point: why a foreign sovereign in its state allows for a foreign law. In Huber’s theory politeness served both theoretical and legal rationale to solve the problems of the conflict of laws – court in one country could apply the law of another country relying on international politeness. The paper concludes that almost all Huber’s axioms have became part of modern doctrine and legal practice especially in common law countries. Huber may be considered the founder of the theory of national nature of conflict of laws and simultaneously – the founder of the international law theory in international private law. |
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64–80
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Poldnikov Dmitriy - Associate Professor of the Department of Theory of Law and Comparative Law, Law Faculty, National Research University Higher School of Economics, Candidate of Historical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: dpoldnikov@hse.ru. The article features the common law doctrine (ius commune) as a unique phenomenon in the history of the 14 – 18th century Continental Western Europe. The work studies the prerequisites for its emergence, typical features, reasons to acquire the status of a formal source of law in the High Middle Ages by the doctrine and loosing the status in the Modern Age. The prerequisites for the doctrine was the formation of the legal science as a theoretical discipline in the emerging universities in Northern Italy of the 11 – 12th centuries, which allowed adjusting the sources of Roman law in a new historical context as well as the demand of the European population for more complicated rules of social regulation having lacked a proper development in common law. Beginning with the 13th century, the most developed regions of Western Europe applied the doctrine which relied on scholastics and suggested common opinion of the most authoritative professors of law (communis opinio). It was being formed as part of studying Roman and canon law at universities. The scientific doctrine was being formed mostly independently from other sources of law such as customs, royal law, urban law and trade law. A formal obligation as a unique feature of the ius commune doctrine became on the one hand the necessity in against the background of political and legal disunity of the medieval Western Europe, the lack of active legislative power and specific features of legal proceedings in the medieval communes. On the other hand, it owes its status to its inner qualities, i.e. universalism, authority and profoundness. As a result in the 14th century, the statutes of many communes codified the right of judges to address experts for the opinion. A strong central power and an active legislative policy of sovereign rulers, the formation of nation states and the disintegration of a single academic environment in Western Europe of the Modern age got the main causes of losing the status of formal source of law by the ius commune doctrine. However, until the first codifications of civil law in the 18th century, general opinion of legum doctors (communis opinio) was crucial for the institution of private law on the European continent. |
Russian law: conditions, perspectives, commentaries
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81–91
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Krylova Ninel` - Senior Researcher, Institute of State and Law of the Russian Academy of Sciences, Doctor of Juridical Sciences. Address: 10 Znamenka Str., Moscow, 119019, Russian Federation. E-mail: ninelkrylova@mail.ru
This study is based on the comparative law approach. The author examines the role of the constitution in regulating the organization and activities of the state in the area of financial relationship. Modern constitutions proclaim the principles defining the process of adopting the main financial document of the country (the budget), as well as the rules of taxation. They also provide the rules concerning the status and powers of the controlling bodies. The author analyses the general constitutional principles as well the special rules dealing exceptionally with the financial relationship. The author underlines the fact that in the era of constitutionalism all forms of financial activity of the state are shaped in the legal form. |
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92–101
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Yalbulganov Alexander - Professor, Department of Financial Law, National Research University Higher School of Economics, Doctor of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: yalbulganov@mail.ru. The paper analyses the legal regulation of monitoring and expert-analytical activities carried out by controlling and auditing bodies for the state regional financial control.
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102–112
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Panova Inna - Judge of the Supreme Commercial Court of the Russian Federation, Head of the Department of Administrative Law, National Research University Higher School of Economics, Doctor of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: ipanova@hse.ru. Gorodetskaya Elena - Postgraduate student, Department of Administrative Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: sovetnikvs@yandex.ru. The article argues that the agro-industrial complex (APK) requires the development and adopting the federal law on the state regulation of this sector subject to the international regulation and requirements of the WTO. To ensure the predictability of the administrative law influence, its complex character and efficiency, the administrative law doctrine should develop new complex tools to regulate the agricultural sector, i.e. legal regimes ensuring the optimal balance of the efficiency of agricultural policy and respecting public interest. The article suggests specifying food security as one of the main objectives of this regulation, enforcing the new multi-purpose law with a number of new measures of state regulation, widening the range of agro-industry subjects entitled to state subsidies and determining the terms under which they will be provided. The author argues that the agricultural area has an urgent necessity to specify the subjects of agricultural complex as separate subjects of regulation within the proposed law. Besides, there is a necessity in a clearer differentiation and setting the authorities of executive bodies at the federal level (Rospotrebnadzor and Roselkhoznadzor). An emphasis is made on the necessity to define in the federal law the concepts of agro-industrial complex, subject of agro-industrial complex, as well as making up a uniform register of agricultural commodity producers and the APK subjects. A proposal has been made to define the agricultural complex as a system of interrelated branches of industry, area of services, and agriculture, specialized agencies ensuring funding, production, storing and selling agricultural produce and providing it to consumers as well as packaging, transporting, ensuring technological equipment. As a measure to improve the legislative regulation of APK, the author suggests introducing a uniform register of APK subjects. |
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113–122
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Polyakova Tatiana - Professor, Department of Information Law, Computer Science and Mathematics, Russian Academy of Justice, Honored Lawyer of Russian Federation. Address: 69 Novocheremushkinskaya, Moscow, 117418, Russian Federation. E-mail: polyakova_ta@mail.ru.
Khimchenko Alexey - Research Fellow, Faculty of Law, National Research University Higher School of Economics, External Doctorate Student, Russian Law Academy of the Russian Federation Ministry of Justice. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: alekseykhimchenko@gmail.com.
In this paper we study the problem of cross-border transfer of personal data, including the analysis of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, concerning supervisory authorities and transborder data flows CETS No. 181, additional Protocol to the Convention, Russian Federation legislation on personal data protection and cross-border transfer of personal data, as well as the role of the Commissioner authority to protect the rights of subjects of personal data, identify problems arising from cross-border transmission of personal data. |
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123–140
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Batusova Ekaterina - Postgraduate Student, Department of Labour Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: batusovs@rambler.ru. The article is devoted to the issues of legal regulation of chief executive officer (CEO) labour. The legal position of CEO has a dual nature: chief executive officer is an employee of the organization, and, simultaneously, CEO is a legal person as the Sole Executive Body. The author emphasizes that employment relationship with chief executive officer is not always sufficient to conclude a labour contract. Other legal facts, which may be election, appointment and others are necessary too. Specific position of chief executive officer determines the specific features of its legal status: first, it is under the organization's Charter represents its interests in relations with partners; secondly, CEO is the authorized representative of the employer in relations with the employees of the organization, has the rights and duties of the employer in labour and directly related to labour relations; and third, the CEO is an employee. As an employee CEO is economically weaker side in comparison with the owner. The author notes that a certain peculiarity of chief executive officer’s legal status gives the specificity of the performed work involves simultaneous combination of professional knowledge and skills in certain segment of the economy and qualities of a competent manager. In the article the questions of the tests when hiring, remuneration, dismissal from performing their duties, termination of employment and other aspects are risen. The author pays special attention to the problem of payment of work of CEO. The remuneration of the chief executive officer is determined by agreement of the parties in his employment contract. The remuneration system of CEO is not fixed in local acts of employer (as a system of material encouragement of employees). Stimulating payments for chief executive officer are prizes, bonuses, stock options, bonus shares, pension plans, preferential loans and amounts paid as severance pay, i.e. the «golden parachutes». Depending on the organization's goals and activities the owner can use short-term and long-term incentives. In particular if you are interested in long-term relationships with the CEO, you can use preferential crediting which allows to keep CEO from the change of the place of employment. |
Law in the modern world
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141–150
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Voronina Anastasia - Postgraduate Student, International Law Department, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: voronina@tomcar.ru The article deals with the questions of international law cooperation and applying outer space. The article analyzes the concept of international law cooperation of states defined as a diversified activity of states implemented on the basis of international agreements in political, economic, research and legal areas, aiming to research and take advantage of peaceful space exploration in the interests and for the benefit of maintaining international peace and security and promoting economic stability and progress. This definition provides for two forms of cooperation: a) cooperation of states within the framework of international treaties at universal, regional and bilateral levels; b) cooperation within the framework of international organizations. These types presuppose seven forms of cooperation. The paper reveals and analyzes the major cooperation tendencies within space development. The most relevant tendencies at the current stage are participation of the commercial sector in space research, incorporating technological components into international law agreements. The paper also reveals characteristics of international cooperation in space including hierarchical connection of international law forms of cooperation of space as a form of cooperation to implement large-scale space projects. The article is concluded with the analysis of perspectives as to codifying international space law. A conclusion has been made that the codification of the law will start with soft law. Such a codification is to be considered as a positive tendency to test the methods of drafting, coordination and adopting a universal document to create a single unified space convention. |
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151–172
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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 mutual recognition principle as a common principle of liberalizing transborder economic relations within the EU internal market plays a serious part in implementing freedom to provide services. The main aim of the article is to reveal the role of mutual recognition principle in implementing freedom to provide services and to appraise its efficiency. The ground for its establishing was the EU Court judgment on the case 120/78 Cassis de Dijon on an unlawful restriction on the free movement of goods. The article outlines the essence of the judgment. The author stresses the ambiguity of the principle in the light of different doctrinal approaches to its essence. The approaches differ in particular due to the interpretation of the principle. The doctrine mentions from time to time the view that the principle of mutual recognition is applied due to the absence of harmonizing acts at the EU level. However, another point of view admits applying the principle with minimum requirements to harmonization and within a new approach to harmonization. On the basis of the analysis of secondary EU law, EU case law and diverse doctrinal views, the author defines the content of mutual recognition principle. Within the area of applying the principle, a number of standard forms of mutual recognition are shown, in particular licenses and standards and recognizing professional qualifications and supporting documents. The special features of services as an object of economic relations and their legal regulation influence the application of the mutual recognition principle in this area. The article contains a comparative analysis of goods and services as objects of cross-border economic relations and on the basis of this research the author determines peculiarities of the application of mutual recognition principle in the services sector. The article assesses the application of the mutual recognition principle and reveals the reasons impeding its implementation. In particular, the article determines the role of the mutual recognition principle as to making state contracts on providing services. A particular attention is paid to the analysis of EU legislation concerning the recognition of professional qualifications. Directive 2005/36/EC on the recognition of professional qualifications is analyzed. The conclusion made is that the mutual recognition principle is not implemented in full however a tendency is seen in increasing the efficiency in the area of providing services. |
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173–195
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Markuntsov Sergey - Associate Professor, Department of Criminal Law, Law Faculty, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: sam.hse@mail.ru. Umanskiy Andrey - Researcher, Criminal Law Institute at Cologne University, LLD candidate. Address: Albertus-Magnus-Platz, Köln, 50923, Germany. E-mail: jura-dekanat@uni-koeln.de The article gives a comprehensive analysis of the major changes in criminal law prohibitions provided by the Special Part of German Penal Code concerning the mainaspects of society and the state for the last 8 - 10 years. The choice of the articles for the analysis depended on the relevance and response of the scientific community and law enforcement agencies. First, the article analyzes the changes of major legal law bans in the area of economics: Section 261 Money laundering; hiding unlawfully obtained financial benefits, Section 146 Counterfeiting money, Section 152 a Foreign money, stamps and securities, Section 263 a Fraud; then offences against personal freedom: Section 238 Stalking, Section 237 Forced marriage. Further, the major changes as to information security: Section 202a Data espionage, Section 202b Phishing, Section 202c Acts preparatory to data espionage and phishing, Section 303a Data tampering, Section 303b Computer sabotage; major changes introduced into legal bans as to state security: Section 129a Forming terrorist organizations, Section 89a Preparation of a serious violent offence endangering the state, Section 89b Establishing contacts for the purpose of committing a serious violent offence endangering the state, Section 91 Encouraging the commission of a serious violent offence endangering the state and changes included into legal bans to protect sexual immunity : Section 176 Child abuse, Section 184 Distribution of pornography; and bans concerning public order: Section 130 Incitement to hatred, Section 113 Resisting enforcement officers. Finally, the article analyzes changes in the area of the protection of environment. The authors attempt to provide some evaluation of these changesand to determine general tendencies in German criminal law. A conclusion has been made that the major part of changes of legal bans in of STRAFGESETZBUCH SPECIAL PARTwas aimed at implementing in the country international and European standards of statutory regulation. |
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