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Legal thought: history and contemporarity
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3–22
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Savuk Leonid - Professor, Department of Criminal Law, National Research University Higher School of Economics, Doctor of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: lk.savyk@gmail.com. The article provides a retrospective view to the codification of the Russian criminal legislation to show what has been done in this area and what problems wait for the analysis. The article outlines three aspects: problem, matter, experience of codifying Russian criminal legislation. The topicality of the research is conditioned with the necessity to develop optimal viable theoretical model for a criminal legislation meeting the requirements of society and state in protecting socially significant values. Irrespective of the final output, the aim its codification is to ensure new, harmonized regulation of legal relations. A serious hindrance to solve this task is the lack of a legal conception (doctrine) of criminal policy. To develop it, modern criminal law should contribute as it needs a serious modernization relevant to the current needs of the country. Having analyzed the criminal code legislation, a close attention was paid to the requirement not admitting the coexistence of the law and various sources of criminal law norms including case precedent. Judicial law making violates the separation of powers principle and these decisions should not be part of Russian criminal legislation. The retrospective look at codifying criminal legislation supports the idea of its specific nature as to historical development and establishing state institutions and on the other hand, mechanical copying of the forms having developed in another environment, bringing to Russia foreign social theories, which were doomed. We have our own social ills which cannot be treated with foreign medicines. However, the foreign experience especially German as to codifying criminal legislation was attentively studied in Russia. The author shows an initial vector in the development of the Russian criminal legislation and is confident that rich history of national codification will bring positive results. |
Russian law: conditions, perspectives, commentaries
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23–31
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Borisov Gennadiy - Professor, Head of Department of Theory and History of Law, Belgorod State National Research University, Honoured Lawyer of Russian Federation, Doctor of Juridical Sciences. Address: 85 Pobedy Str., Belgorod, 308015, Russian Federation. E-mail: Info@bsu.edu.ru.
Noskov Vladimir - Professor, Head of Department of Philosophy, Belgorod State National Research University, Doctor of Philosophical Sciences. Address: 85 Pobedy Str., Belgorod, 308015, Russian Federation. E-mail: Info@bsu.edu.ru.
The following article dwells on the problem of interpreting the so called Glorious Revolution of 1688 from a libertarian point of view. The sources analyzed are royal edicts, declarations, court judgments, monographs by British historians, materials from the Internet. The author disagrees with the settled opinion that the state coup at the end of the 17th century referred to as the Glorious Revolution was caused by the authoritarian rule of King James II Stuart who headed fanatic Catholic reaction forces and the success of the coup meant the victory of the forces of freedom, tolerance to faith and economic progress. Having referred to a number of normative legal acts and historical facts, the author develops the idea that king James II and his supporters Jacobists though not all of them were of the catholic faith sought actually to establish in Britain fundamental for that period human rights, i.e. freedom of conscience, entrepreneurship and right to bear arms. The Glorious Revolution and the enthronement of the House of Orange-Nassau were desired by only the oligarchal Anglican elite. The victory brought not development but a political and legal regress and economic stagnation. The regress lead to the restoration of limited religious, political and economic rights of Catholics, deprivation of rights of atheists and return from the free trade introduced by the Stuarts (laissez faire) to protectionism and further economic crisis of two regions of the kingdom, i.e. Scotland and Ireland. The author reminds that several norms of the Bill of Rights praised by historians were against a case of the King’s Bench which happened 3 years before and not cancelled. Thus, the provisions of the Bill of Rights went against the fundamentals of English case law, which made the enthronement of William III & II legal. Summarizing, the author proposes to rename the events of 1688 and the results from the Glorious Revolution to inglorious. |
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32–38
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Petrov Alexey - Professor, Labour Law Department, National Research University Higher School of Economics, Doctor of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: alexey.petrov@yandex.ru.
The article attempts to formulate new approaches to defining forms of guarantees and classifying them. Guarantees, guarantee payments, compensations and compensation payments are studied on the basis of Section 7 and other norms of RF Labour Code, labour law doctrine. |
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39–47
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Kozlov Alexander - Associate Professor, Department of Criminal Law and Process, National Research University Higher School of Economics (Nizhny Novgorod campus). Address: 30 Sormovskoye Highway, Nizhny Novgorod, 603014, Russian Federation.
The article deals with the problems of interpreting criminal legislation on liability for crimes against intellectual property rights provided in Articles 146, 147, 180 and 183 of theRussian Federation Criminal Code. The author attempts to explain the meaning of terms: misappropriation of authorship causing major damage; repeated illegal use of trademark and warning label; theft of documents containing trade secrets etc. |
Russian law: conditions, perspectives, commentaries
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48–62
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Kayurov Evgeniy - Postgraduate Student, Department of Constitutional and Administrative Law, Samara State University. Address: 1 Akademika Pavlova Str., Samara, 443011, Russian Federation. E-mail: kayurove@mail.ru.
The article deals with the research of the current constitutional law regulation as to state (municipal) finances. Primarily, the author focuses on the fundamentals of administering finances according to the RF Constitution, which allows tracing further correlation between applicable legal regulation and the norms of the RF Constitution. The research touches upon a new research study, i.e. constitutional economics. In particular, the questions of forming, using public finance, supervision over their spending are a subject-matter of constitutional economics aimed to analyze the principles of the best combination of efficient economic (financial) solutions to ensure the performance of constitutional guarantees and principles. The original position on the problems promotes to the development of this scientific study in Russia. The paper is divided into three blocks according to the purpose of studying the components and features of public finances. In particular, the author pays attention to the fundamentals of state (municipal) finances, general principles of budget policy and budget process and the ideas of budget federalism. On the basis of the analysis of the Russian applicable legislation, practice and comparison of constitutional law regulation of similar problems abroad, the author proposes several ideas and recommendations which would increase the efficiency of applying state (municipal) finances. In particular, within the first block, the author proposes conceptions of codifying not a cumbersome taxation system based on the economic ability of population; introduction of the principle of economical spending of budget; introduction of the principle of purposefulness of tax exemptions etc. Within the problems outlined in the second block, the author stresses the lack of legal regulation of relations as to personal involvement of citizens into the budget process. As to the third block, the authors draws attention to the comparative analysis of the constitutions of foreign countries with the Russian one as to budgetary federalism and arrives at the conclusion that on irrelevant constitutional regulation as to common principles of forming profit bases at the level of public power and determining the system of interbudgetary interaction. |
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63–72
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Zaikin Sergey - Postgraduate Student, Department of Constitutional and Municipal Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: istoriograf@mail.ru. The article features the history of election blocs in the RF and studies the examples of agreements of political parties and establishing election blocs. The relevance to the topic may be explained by the current reform of election laws. The article describes the main stages of this reform, i.e. decreasing electoral threshold in the State Duma election, changes as to the requirements of minimum number of political parties from 40, 000 to 500 members, cancelling the requirement of collecting signatures by political parties not represented in the Duma etc. The article shows a sharp rise in the number of registered parties since the spring of 2012 and justifies that these parties will unify into election blocs due to insufficient number of members. The article makes an analysis of legal regulation of election blocs and agreements, public associations which have arranged such unions. All this promotes to the accumulation of practical experience. The analysis has allowed revealing the following trends in the development of the institution of election blocs in Russia. The election blocs achieved success at the federal level (State Duma elections) In 1993, i.e. when the Russian election system had started developing and the elections of 2003 – the last time when they with a status of election associations were eligible for plebiscite. However, the largest number of election blocs was represented at the 1995 elections. – none of them cleared a 5 % threshold. Simultaneously, legal regulation of election blocs strived to recognize the unions as associations, but there was no requirement as to making an agreement confirming the creation of an election bloc. In its legal norms, the RF Central Election Commission interpreted this agreement on creating an election bloc a succinct decision containing the agreement of public associations to enter this bloc and making up a joint list of nominees. As an example, of the agreement on creating an election bloc for a detailed analysis of advantages and disadvantages was taken an agreement on creating an election bloc for joint participation in the election to the State Duma concluded September 14, 2003 on the election bloc Rodina. |
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73–84
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Lutsenko Sergey - Consultant of the Control Department of the Presidential Administration of Russian Federation. Address: 8/5 Staraya Ploshchad, Moscow, 103132, Russian Federation. E-mail: scorp_ante@rambler.ru. The article studies the decisions of shareholders and the influence of the decision-making process on the corporate policy. Due to the discretionary powers, shareholders can participate in the management of the company directly. On the other hand, due to the absence of professional skills it can delegate this responsibility to the company’s management. Thus, conferring powers to the management, the shareholder can incur losses. Russian companies are prone to conflicts between shareholders and management. The reason of such conflicts is a high remuneration to the executives. The directors fix high payments for themselves acting ultra vires. Distributing the remunerations is a prerogative of general meeting of shareholders. Serious conflicts in the Russian companies can arise among shareholders. The aim of the disputes is the control of cash flows in the company. Resolving conflicts among shareholders of the company and directors may be achieved by the model of business target-setting. To create motivation within the board, shareholders initiate options in the company, thereby, matching the payment to the directors to concrete results of the company (increase in the profitability of assets, capitalization of the company’s value, increase in productivity). One of the primary goals of the corporate right is providing balance of their legitimate interests between shareholders and management of the company which, in turn, is reached if the parties are guided by the interests of the company, instead of short-term personal interests. Avoiding conflicts, is possible creating mechanisms facilitating to regulate the activity of the directors and make recommendations, arranging supervising services which would trace legitimacy of the transactions made by the directors. The purpose of the analysis is to identify relations among shareholders and between shareholders and the board. In particular, the following issues will be covered: aspects of general meetings (decisions to increase capital stock, a preemptive right to acquire of shares), high remuneration to the executives (arranging stock options). Research of the decisions of shareholders on the corporate policy is accompanied with case practice. |
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85–95
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Vishnevskiy Petr - Postgraduate Student,Department of International Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: petervishnevskiy@gmail.com. Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
Yankevich Semyon - Postgraduate Student, Financial Law Department, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: semyon.yankevich@gmail.com.
The article deals with the notion factual receiver of profitin international, foreign and Russian practice. The problem of applying this notion is being studied on the case study of the emission of international bonds. The study examines different interpretations of factual receiver of profitin international contracts, national laws and court practice. |
Judiacial Practice
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96–101
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Panov Alexey - Research Fellow, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: alex@panov.in.
The paper examines the problem of holding a trustee in bankruptcy administratively liable under art. 14.13 of the RF Code of Administrative Offences (hereafter KoAP RF) on the basis of the complaint of the receiver. In particular, the author shows that the activity of trustees in bankruptcy has its own special features based on the law On Bankruptcy. The controlling body may carry out an inspection only of self-regulating organizations of trustees. As to the powers to bring an administrative case, the legislator specifies the right of the department as to a self-regulating organization of trustees in bankruptcy and a specific trustee in bankruptcy. It is concluded that the legislator does not identify the concept of a self-regulating organization to its members (art. 23.1 FZ On Bankruptcy). On the materials of legal practice, the author focuses on the most interesting judgements of the RF Supreme Arbitration Court as these judgements served as a ground to address the RF Constitutional Court to interpret the applicable legislation concerning the legality of inspections against trustees in bankruptcy. The author makes the following conclusions. First, under FZ On Insolvency (Bankruptcy), the controlling body may carry out inspections only of self-regulating organizations of trustees in bankruptcy. Second, the administrative body does not have the power to inspect trustees in bankruptcy. Thirdly, as part of the case-study, the author finds that the court of the first instance committed a mistake as it did not check the powers of the administrative body which should have been done under part 6 of article 205 of the RF Arbitration Procedure Code. Judicial practice against the applicable law admits the right of the administrative body to inspect trustees in bankruptcy. The court of appeal applied art. 28.1 of the RF KoAP equaling the information on the wrongdoing from the complaint to the wrongdoing of an official of the organization. The article includes other conclusions of the author. |
Law in the modern world
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102–115
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Vishnevsky Alexander - Professor, Department of Entrepreneurial Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: sopos59@mail.ru.
The article considers certain results of more than twenty year development of deposit protection in the EU banking law, major notions and possible perspectives. |
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116–133
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Volkov Alexander - Assistant Professor, Deputy dean of the Faculty of Law, 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: akvolkov@hotmail.com. Ryzhkov Andrey - LL.M. Dresden, Russian-German Legal Union. E-mail: ryschkov.andrey@gmail.com. The article features the influence of EU law on regulating national pharmaceutical markets of the member states. Having studied the problem, the authors raise a question whether it is possible to recognize the existence of the internal pharmaceutical market in the EU. The brief description of this market has allowed concluding that this is a special sector of the EU single market with its features of legal regulation. First, legal regulation of this branch is affected and limited by national legislations. The validity of the limitations is explained by ‘protection of public health’. The border between national and supranational regulation remains blurred. The EU court has regularly expressed its position but no single approach or criteria have been selected. Second, though the internal pharmaceutical market has not been created, the influence of the EU law is serious and it will increase in the future. Hence, the competence of national legislations on pharmacy will gradually shrink. As has been shown, the EU member has a competence as to admitting pharmaceutical drugs, but this competence works only if the EU’s single procedure is not applicable. Hence, pharmaceutical market and protection of citizens’ health have ceased to be the internal concern of states. Third, it is of note that states though try to set up a single market opening national markets for foreign pharmaceutical companies, which results in a intensive development of own internal industry at the expense of competition; on the other hand every state protects its producers and consumers with the help of barriers. Despite the necessity to eliminate protectionism, the desire to get fast profits and fear of losing national pharmaceutical industry remains significant. |
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134–155
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Postnokova 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 Dijononan 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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156–161
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Dudin Pavel - Senior Lecturer, Theory and History of Law Department, Buryat State University, Candidate of Political Sciences. Address : 24a Smolina Str., Ulan-Ude, 670000, Russian Federation. E-mail: dudinpavel@mail.ru. With state Qing disintegration in October, 1911, Mongolia saw an intense national-liberation struggle and more intense activity of centrifugal forces that led to the proclamation of the country’s independence in December, 1911. However, the status of Outer Mongolia remained undefined until 1945. Despite being independent and its own internal and foreign policies (getting support from Russia), Khalkha was considered part of the Republic of China in international documents of Mongolia, Russia and China. A number of internal and external reasons caused Mongols ofKhalkha to create in 1911 a theocracy. However, the descendants ofGenghis Khan did not become the rulers of the political entity. In Mongolia where religious institutes have traditionally played an important role in society, the wave of religious revival brought a religious aspect into the relations between the state and authorities. The figure representing divine foresight was Bogd Gegeen VIII, also being the Jebtsundamba Khutuktu. This form of political head of state let Khalkha become institutionalized. The status and significance of Bogd Gegeen who got the title of the Great Khan played a key role in the process of national rebirth and consolidation of different political and religious forces. At the initial stage, it was he who managed to unite all political forces, which led to a successful state building. This political regime was codified in a number of legal acts, in particular international treaties which involved Russia. However, after the Chinese invaders were defeated in 1921, the powers of Bogd Gegeen were reduced politically by means of Solemn Compact between the head of state and the so called People’s Government. However, this balance did not exist long. The idea of association of all Mongolian nationalities as a sovereign theocratic formation under the aegis of the same monarch-sovereign got irrelevant with the lack of national unity. In 1924, after the death of the Bogd Gegeen, the form of government changed and Outer Mongolia was declared a republic. |
Legal education reform
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162–171
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Troshkina Tatyana - Associate Professor, Department of Financial Law, National Research University Higher School of Economics, Candidate of Juridical Sciences, Candidate of Economic Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: konevka@rambler.ru.
The article features the current educational area with the focus on modernizing education legislation and its implementation. Arrangement of educational process is analyzed with a special attention to the issues of adding new components. An assumption is made that this combination allows referring to the modernization of higher professional education as complex. |
Scientific life
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172–182
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Rumyantsev Stanislav - Postgraduate Student, Department of Entreprineur Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: srumyantsev@hse.ru. The review contains the opinions expressed at the panel on the problems of crediting which was held by the Department of Entrepreneurial Law of the HSE Law Faculty. The event was attended by teachers, postgraduate students, practicing lawyers and representatives of banks and supervising bodies. The major topic discussed was the analysis of the approaches applying in the RF legislation to regulate the relations between banks and borrowers. New definitions were suggested for the concepts of the price of a credit agreement, full price of credit. The panelists noted that the total volume of bank credits for individuals is approaching 10 % of Russia’s GDP and according to surveys in the 2010s every third Russian citizen used credit services. Credit cards are getting commoner. At the same time bank services in Russia suffer from violations in particular unfair crediting. In particular, these are the application sophisticated terms by banks, the burden of obtaining information by the customer, posting part of credit conditions only on the Internet but not on paper, hiding the information on bank tariffs and hidden commissions. As a result of protective measures taken for borrowers, executive bodies (consumer protection agency Rospotrebnadzor, Federal Antimonopoly service) and higher judicial bodies are acting consistent to limit the freedom of contract and the arbitrariness of credit organizations. Opinions were expressed that frequent changes in the legislation will promote to the stability of the legal regulation of financial market. These changes are required by the existing contradictions between the norms of certain legislative acts and the Russian Civil Code. |
Book review
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183–186
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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 Reviewof the monography writeen by Dr. Of Law A.A.Merezhko “Psyhological theory of international law” Odessa, Feniks, 2012, 244 p. The review specifies that the beginning of the 20th century in Russian jurisprudence saw a rapid development of the doctrine of international public and private laws (hereafter IP/PL). Surprisingly, the modern Russian academic literature does not refer to the name of L. Petrazhitskiy though this scholar examined the problems of IP/PL and cooperated with many other legal scholars. In this regard, the book published in Russian by the Ukrainian scholar, LLD, prof. A. Merezhko deserves a special interest. The book is devoted to the psychological theory of IP/PL. The book by A. Merezhko shows the fundamentals of IP/PL psychological school based on the theory of L. Petrazhitskiy, reveals the major concepts, principles and institutions of IP/PL in terms of the psychological approach to legal phenomena. Having considered the definition of law and international law given by Petrazhitskiy, A. Merezhko proposes the definition of international law – imperative attributive beliefs of people as to mutual rights and obligations of states as well as other subjects of international community. The last part of the book is of a special interest as the author postulates the fundamentals of the psychological theory of international private law the origins of which were developed by L. Petrazhitskiy. The author proposes the definition of international private law in terms of psychological theory of law, considers within intellectual stuff of law, proposed by L. Petrazhitskiy. A special attention is paid to the principles of international private law in terms of psychological theory. Overall, the book by A. Merezhko is a sufficient contribution to the modern methodology of international law research and gives an opportunity to have a new look at international public and private laws. |
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