2013. No. 3

Efremova Nadezhda - Senior Researcher, Institute of State and Law, Russian Academy of Sciences; Professor, Department of Theory and Law and Comparative law, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: nadnike@mail.ru

The article is devoted to 150 th  anniversary since the publication of Court Rules to be celebrated November 20th, 2014. The laws incorporated in the document had become the pillar for the “Great” judicial reform having lasted for 35 years and aimed to establish court which would be  equal, merciful and just  created a new liberal democratic model of justice absorbing the best practice of Western judicial institutions and own cut and try principles and institutions. Overall, the tasks set by the Fathers of the reform as to modernizing judicial system and judicial process were performed. Justice was the ideological category which determined institutional and functional basis of a new justice. The latter promoted to the development of professional legal attitude of lawyers and hence attitude of lay-men to law. In turn, it contributed to legal culture in Russian society contradicting the immanent legal nihilism typical of it and based mostly on nonconfidence and contempt to court and judges of the pre-reform period.

Salygin Eugin - Associate Professor, Department of Theory of Law and Comparative Law, Dean of Law Faculty, Na­tional Research University Higher School of Economics, Honoured Lawyer of Russian Federation, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: esalygin@hse.ru.

The article features the use of the method of forecast modeling. It describes the approaches to forecast legal modeling and reveals its signs as well as the major trends in modeling relevant to law. The author notes that in the theory of law, modeling tends to be identified with abstracting and legal models are associated with legal abstractions reflecting common features of phenomena and concepts. Identifying modeling with abstracting and simultaneously making a narrow dogmatic interpretation of law as a system of legal concepts in legal science hinder the development of the legal modeling theory. Legal modeling does not go beyond attempts of creating abstract legal concepts. The article suggests using sociological approach which interprets law as social facts. Only this approach may provide opportunities of studying legal modeling of real legal processes on the basis of empirical information and data. Forecast modeling of normative legal acts may become the most prospective area. The key role in the forecast modeling of legal behavior is seen in the behavioral factor though individual and group legal behavior presuppose the motives and other stimuli including rational choice which has been developed in economic theory. The construction of legal behavior model should be based on systematic approach implying the influence of norms and other social regulators, which is represented with the category institution. In turn, institutions should be considered in a wider prospective as the elements of social structure. This requires a model for the entire modern Russian society, its social and political systems. The limited access society theory described by D. North, J. Wallis and B. Weingast is supposed to be the basis for the model. The article is concluded with the details of the method of legal forecasting, forecasting legal model, and the definitions of the subject and object of the research, and the technology of forecast legal modeling incorporating several stages: 1) preparation stage, 2) problems of modeling, 3) definitions of aims, tasks and the subject of legal modeling, 6)research of the model in simulating regime, verification, 7)data and results of legal modeling.

Bogdanoskaya Irina - Professor, Department of Theory of Law and Comparative Law, Na­tional Research University Higher School of Economics, Doctor of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: ibogdanovskaya@hse.ru.

For comparative law studies sources of law are of special interest. They are taken into account when classifying national legal systems. Delegated legislation as a source of law in common law countries has a number of features characterizing this system. Though the source is known to all common law countries, it has a number of differences. The article reveals a special character of delegated laws and their role in contemporary law. The role of statutory law including the proportion of delegated acts is increasing currently in the legal family of common law based on case precedent. The legal doctrine differentiates primary sources of law (cases and statutes) which historically do not depend on other sources and secondary sources including delegated acts. The conception of delegating powers and delegated laws differs in the common law countries. From this position, parliaments have unlimited lawmaking authorities which may be delegated to other state bodies. Other countries have accepted this doctrine to the extent to which they recognize the principle of parliamentary rule and separation of powers. The system of sources has been evolving gradually within legal family. Nowadays, statutes and delegated acts belong to statutory law which being the written law counterbalances the unwritten one (case law). Despite the statutes have a significant legal force, delegated acts influence them. The development of skeleton, framework legislation contributes to strengthening the positions of the delegated legislation. The secondary nature of delegated acts is confirmed with various forms of control (legislative, executive and judicial). The control is being administered to adopt delegated acts within their powers (intra vires).

Gurinovich Alexander - Professor, Department of Theory of Law and Comparative Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: gurinovich_ag@vsrf.ru.

The article deals with the application of the legal norms introduced late in  2011 to regulate the dismissal of state servants due to the lack of confidence for corruption subject to article 59.2 of the federal law On the State Service of the Russian Federation. Such a research has been carried out for the first time and does not have analogues in Russian jurisprudence. The article stresses procedural components which should be taken into account by legal and HR departments of state bodies when developing a road map for implementing such legal instructions. The article scrutinizes complicated and ambiguous major normative acts regulating the examination by HR departments to reveal illegal actions and specifying the order of considering the results by the commission of the state body supervising the implementation of the requirements to the conduct of state servants and settling conflicts of interest. As the federal legal acts do not contain specific purposes of such examinations and the tools have been only outlined, the article examines them. Due to the lack of clarity as to the matters of compiling a report on the results of the investigation, the article proposes its model. The choice of the formal explanation in the employee’s track record has been explained, which does not have a single attitude in HR and legal departments of state bodies. As the legislation provides for appealing to court due to resignation, the article analyzes some characteristic judgements and designs recommendations how to interpret a certain limitation, ban, obligation or requirement the nonperformance of which by a state servant makes up a disciplinary case with corruption elements., which should be kept in mind if an issue arises.

Panchenko Pavel - Professor, Head of the Department of Criminal Law and Criminal Process, Nizhniy Novgorod Campus of National Research University Higher School of Economics, Honoured Lawyer of the Russian Federation, Doctor of Juridical Sciences. Address: 25/12 Bolshaya Pechyorskaya Str.,  Nizhniy Novgorod, 603155, Russian Federation. E-mail: panvest@mail.ru.

On the basis of analyzing criminality and its reasons, measures taken to tackle it and the ideas of students as to Russian criminal policy in the second decade of the 21^st century, the article outlines the policy for the near and further prospective. The article shows the main trends, reveals their essence, makes up ideas to increase the efficiency of organizational, legal and other activity in this area. The students have come to the conclusion that criminality can be effectively fought by the power with a clear political will and relying not only criminal law but a wide range of other factors such as political, economic, social, cultural, organizational as well as the factors preventing crimes. The article proposes to shape criminal policy on the basis of academic views of the perspectives of the further development of moral, constitutional and international law pillars of the policy. Deep and comprehensive study of criminality and measures to tackle it are required and reform the entire system of law-enforcement agencies (not only of internal affairs bodies). Besides implementing the principle of inevitability of liability, the principle of independent judges should be real but not illusory. Relying on the academic approach, the students promote for a detailed deep and comprehensive study of the causes of criminality. If we still do not understand where criminality comes from, we first need to ask criminals about it during investigation procedures, in court and in prison – as they know the answer for sure. Besides proving a crime we need to think about the causes of crimes. First results of the police reform have been shown as well as recommendations as to new measures in this regard. Ways of improving criminal legislation have been outlined at the final stage of the transitional period and the initial stage of the next constructive development.

Sazonova Kira - Assiociate Professor, Department of State Studies and Law, Russian Presidential Academy of National Economy and Public Administration, Candidate of Juridical Sciences, Candidate of Political Sciences.  Address: 82 bldg.1 Prospect Vernadskogo,Moscow, 119571, Russian Federation. E-mail: kira_sazonova@mail.ru.

One of the fundamental rights codified in the UN Charter is an integral right to individual and collective self-defence. Together with the sanctioned by the UNSC peace-making efforts, this right is an exception to the use of force principle the in international law. The complexity of self-defence is that implementing the right to individual and collective self-defence represents the use of force, which may lead to abuse and exceeding the limits of self-defence. Hence, the grounds and limits of self-defence require additional research to avoid any possible ambiguities in the application of collective security system when applying this right. Currently both Russian and foreign international law doctrine lacks a single approach. However, legal codification of key parameters of self-defence will allow specifying limits within which self-defence is a legal implementation of the right of a state. This step would promote to improving legal basis of the institution of responsibility of states for wrongful use of force within the right of international responsibility. Currently, the term self-defence is interpreted widely and legal academics do not strive for making it clarified. The problem under discussion is also relevant as the right of states to individual and collective self-defence plays an important role in strengthening the current system of universal collective security ensured by the UN and regional systems of collective security. Hence, one of the aims of the author is to analyze the position taken by the right of states to individual and collective self-defence. As this system is intended to minimize the use of force in international relations, it is crucial to exclude controversial aspects relating to implementing force the rights of states to individual and collective self-defence to avoid the grounds for the collective defence system.

Morgun Albina - Postgraduate Student, UNESCO Chair on copyright and other intellectual property rights, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: Albina.morgun@yandex.ru.

This article attempts to analyze the legal regulation of the current advertising business in Russia. The subject-matter of the research has become the components of advertising left  in the author’s opinion unsettled in the Federal Law "On Advertising" enacted in 2006. The sources analyzed include the European Convention on Transfrontier Television, the law On Advertising,  Administrative Offences Code of the Russian Federation, judgements of arbitration courts, normative acts of executive and judicial bodies, press-releases of private companies and text books. The article notes that the drawback of the current legislation is the removal of a ban which used to exist on interrupting movies on TV with advertisements more frequently than 15 minutes. Currently, the law regulates the length of commercial breaks but not their frequency. The author stresses the irrelevance of the decision to reject the limitations on advertisements on the channels available by applying decoding equipment. The article draws the attention to the imperfection of a number of articles in the law On Advertising as some companies producing alcoholic drinks advertise their products as umbrella brands.  The legislation keeps silent on clear and justified criteria for regulating a topical question, i.e. what is advertisement and how to measure the volume of advertisement in Mass Media. The author reminds that the drawbacks of the law is that the differentiation between advertising and information content has been assigned to supervisory and judicial bodies, which may represent a corruption element in the activity of such bodies. As video and TV are announcing new products, the law of 2006 requires changes.

Kalyatin Vitaly - Senior Researcher, Information Law Laboratory, National Research University Higher School of Economics, Professor of the Russian School of Private Law, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: kalvit@yandex.ru

The article is devoted to “fair use”/ “fair dealing” doctrine, which in US/UK legal systems permits borrowing of portions of a work and its further use without necessity to obtain consent of the copyright owner. This mechanism provides flexibility in the legal systems and exists to correct “market failures”. However, it is extremely complicated and causes different practical problems. However, these models are unstable and experience serious changes relevant not only to practice but evaluating the general trend of the further development of copyright. US legal system is at the stage of changing paradigm – transfer from interpreting copyright as a special model codifying a compromise for the sake of special public purposes to recognizing the right to entire control of the copyright holder for using a work. In turn, the UK seeking to remove the threat caused by fair use as to business of copyright created the situation in which obstacles for the circulation of information hinder economic development and modernization of the doctrine has got evident drawbacks. However, the attention drawn by the UK cabinet to various narrow aspects of fair dealing has shown recently that widening the doctrine in the UK will not be significant, which would be if the changes were taken only to the extent of which inevitability is recognized by the business community which is conservative. Each of the countries moves its own way but both strive for concretization of terms and conditions of fair use which means a brand-new stage in the development of these doctrines.

Terentyeva Ludmila - Assiociate Professor, Department of International Private Law, Kutafin Moscow State Law University; Senior Researcher, Information Law Laboratory, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: terentevamila@mail.ru.

The article shows the major problems of private international law on copyright. General conflict of laws rules provided by Berne Convention for the Protection of Literary and Artistic Works of 1886 are not sufficient to ensure uniform solutions to the international protection of copyrighted works. As is shown on the example of the USA, Japan and Russia the courts of the countries have a great deal of discretion to decide the applicable law for protection of copyrighted works at the international level. The problems of choice of law in the copyright are aggravated with the development of the Internet and its transnational character and limitation of territorial competence of states. The article reviews the current rules of the applicable law and suggests the most relevant rules in the context of the Internet. The article also includes the critical review of the grounds of the courts’ international jurisdiction of the USA, Japan and Russia taking into consideration the copyright infringement on the Internet.

Sergo Anton - Professor, Deartment of Copyright, Neighbouring Rights and Intellectual Property, Russian State Academy of Intellectual Property, Doctor of Juridical Sciences. Address: 55a Miklouho-Maclay Str.,Moscow, 117279, Russian Federation. E-mail: mail@internet-law.ru.

Ivanova Ekaterina - Senior Consultant, GTK Telekanal Rossiya. Address: 19/21 Pyataya Ulitsa Yamskogo Polya Str., Moscow, 125124, Russian Federation. E-mail: eip86@yandex.ru.

The article provides a review of legal problems resulting from the protection of copyright to the works placed on the Internet and summarizes the approaches aimed to solve these issues. Despite the rapid development of the legislation in the area concerned, the gap between this legislation and technological progress and consequently, low efficiency in the fight against exclusive right violators are obvious. This problem is not exceptionally Russian as it actually affects all the countries in the world with advanced information and telecommunication networks. However, now it is clear that an optimal balance between the interests of copyright holders and users can be reached only as a result of taking reciprocal measures aimed at creating honest and transparent forms of cooperation. Attempts to influence one cause of the conflict to resolve it is not sufficient and correct. The world experience of developing and implementing alternative means of content delivery, taking into account the needs of all Internet-content market members, is one of the first important steps on the road to the balance between the interests of right holders and users. Today, it is obvious that the methods of monetization of the works, used by the owners previously, have become obsolete. Relations between right holders and users are in the process of the inevitable reform, but what will it be - revolution or evolution? The material is based on both the analysis of the existing theoretical legal approaches to solve these problems, and judicial practice that has currently formed its view on some of the questions considered.