2013. No. 4

Bogolyubov Sergei - Professor, Department of Administrative Law, National Research University Higher School of Economics; Head of Department of agricultural, environmental and natural resources legislation, Institute of Legislation and Comparative Law under the Government of Russian Federation, Doctor of Juridical Sciences, Honoured Scientist of the Russian Federation. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: ecology@izak.ru.

The paper reveals the potential of provisions on ecology from the Russian Federation Constitution, roleof the relevant federal legislation providing for the responsibility of citizens, state and society for maintainingenvironmental rule of law. Attention was drawn to the protection of private, state and municipaltitles to land and other natural resources which are essential for people living in a certain territory. The20th anniversary of the Russian Federation Constitution is an opportunity to analyze the implementationof its provisions concerning ecology. The article compares subjects of regulation and different legislationsin particular administrative, civil, urban development, land, water, forest, health, resources andenvironment. The author examines the implementation of rights to favourable environment, reliableinformation on its condition indemnification for harm to health or property. The article shows how therequirements of the Constitution are applied to establish the fundamentals of federal policy on the environmentaldevelopment in the Russian Federation, cooperative lawmaking activity of the Russian Federationand its subjects in the area of environmental management, protection and security. The attemptsto reveal the implementation of the provisions thereof show the necessity to improve economic and legalmechanism of applying, modernizing state, industrial and public control (supervision) of jurisdictionalactivity, ensure inevitability of legal prosecution for natural and legal persons liable for the abuse ofnatural resources and objects. It is controversial to state that all the current norms of the Russian FederationConstitution are duly and completely implemented. Hence, the article concludes that it is viableto concentrate on implementing the norms and their application to outline the problems and guidelinesfor the further development of the Russian environmental law system.

Baratova Marina- Senior Lecturer, Department of Civil Law, National Research University Higher School of Economics, LL.M (Private Law). Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: bma@hse.ru

The article features a very topical issue of the role of housing law in the Russian Federation legal system.This issue has been being discussed in academic literature for several last decades. Though the topicmay seem theoretical at first sight, the article will be important for practicing lawyers as a legislationfrom the domain of private law should comply with the theoretical fundamentals of jurisprudence. Thearticle studies the process of forming housing law as a branch of legislation in our country and variouslegal views on the nature of this law and makes a conclusion on its role within the Russian Federationlegal system. The paper also discusses three various systems of legal regulation to meet the housingdemands having existed during the 20th century. The differences in these systems were conditioned byradical changes in the structure of ownership, the principles of public power and the functions of ourstate in the 20th century. The conclusions made in the article are the following. Causes and purposes offorming housing legislation in the Russian Federation may be considered applied; the current housinglegislation exists currently as a complex legal branch confirmed by point K in article 72 in the RussianFederation Constitution; housing law is not an independent branch of law and is a sub branch of civil lawwith higher standards of imperative norms compared to the other sub branches of civil law, which can beexplained by the significance of residential property in housing legal relations for citizens and society;housing law as a legal branch is an educational course studying it as a part of civil law.

Shatalov Alexander - Professor, Department of Judicial Power and Justice Administration, National Research University Higher School of Economics, Doctor of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: asshatalov@hse.ru.

The article analyzes the human rights defence potential and resuming investigation due to new orrevealed circumstances. The paper studies the essence of judicial examination as the most efficientway of rectifying judicial mistakes. In particular, with the resumption of legal proceedings due to newcircumstances, the court ensures not the compensation of judicial activity but a possibility to studythe facts relevant to determine grounds and limits of criminal law security but could not be part of theinvestigation on the criminal case. The author argues that this mechanism can and should be used bydefault to eliminate violations but not when the possibilities to rectify them this sort of cases had beenspent, the mechanism should not be deemed optional. Legal potential of the institution of resuminga case due to new or revealed circumstances is considered rather high. It has been determined bythe types of judicial mistakes. Unlike the common view in Russian literature on legal proceedings,the author thinks that the procedural mechanism does not have anything exceptional. It is applied notafter the possibility to review the case runs out but independently, i.e. as soon as new circumstanceswere disclosed. The potential of human rights defence is seen in the successive and more efficientprocedures of eliciting judicial mistakes and authorize parties concerned with the right to appeal to acourt to review the sentence or another judgement.

Bazarov Arsalan - Postgraduate Student, Department of Criminal Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: bazarovarsalan@mail.ru.

The topicality of the article is accounted for an interest of the criminal law doctrine to the phenomenonof constitutionalization as well as judicial disposal. The RF Constitution being a pillar of the entirelegal system is setting a vector of development and the principles codified in it are the basis for lawenforcement activity of state bodies including the area of application of criminal legislation. The articlestudies the questions relating to the process of constitutionalizing judicial disposal, its influence on thepractice of interpreting and applying criminal law norms, studies the limits of judicial disposal. Theselimitations relate to both form and content. Hence, the problem of determining judicial disposal is beingreduced to the balance of a strict legal framework and freedom of selecting a decision. However neitherthe criminal law doctrine, nor case law has a clear understanding of these limits and their nature. Thelegislator vesting a judge with the authority to administer justice gives him an opportunity to choosebetween two or more legal decisions on a particular case. The author notices that the decisions of theRF Constitutional Court have a normative nature and influence materially the dynamics, the processof constitutionalizing judicial disposal. A conclusion is made that the Constitutional Court recognizingthe legal norm controversial the RF Constitution assesses the legal attitude of legislative bodies havingcreated the norm and thus is involved in the lawmaking process. The article notes that the problem ofapplying capital punishment is an important aspect of influence of the decisions of the RF ConstitutionalCourt on judicial disposal.

Silantieva Inessa - Postgraduate Student, Department of State and Law, Samara State Economic University. Adress: 141 Sovetskoy Armii Str., Samara, 443090, Russian Federation. E-mail: inessa0703@yandex.ru.

In the work we examined and investigated the specificity of correspondence legal procedure. This procedure helps to ensure access to justice, to eliminate the possibility of intentional delays in the process, without compromising the procedural guarantees. The special attention is given to the problems which arise at the stage of application of this category. Questions of legality of the given decisions, cases of plurality of subjects both on the party of the claimant and on the party of the respondent, complexity at participation of remedial claimants are considered and some other questions are examined. In article use problems in trial of systems of correspondence legal procedure are analyzed and prospects of their application are considered.
It is noted that the correspondence legal procedure can not be considered a simplified or abridged procedure, as fully complied with the procedural form, examines all the evidence. It is carried out by the general rules of the trial, established by Chapter 15 of the Code of Civil Procedure of the Russian Federation, but with some features provided by Chapter 22 of the Code of Civil Procedure of the Russian Federation. Correspondence decision has the same legal effect as adopted in the usual manner. This is not an independent, not separate but civil proceedings.
It is concluded that this type of production complies with the principle of competition. The trial is held in a general manner, examines all of the evidence, the parties are known to each other's views. To cap it all, in the correspondence legal procedure are introduced additional safeguards for the absent defendant, which are expressed in limiting some of the powers of the plaintiff - the right to increase the size of the claim and a change in the claim. Certainly, in the correspondence legal procedure there is some one-sided, but it is only the result of the defendant's actions. With this in mind, the defendant an opportunity to cancel the correspondence decision in a simpler form.
The article states that in the legislative regulation of the correspondence legal procedure there are significant flaws. Greatly facilitate the use of this institute will allow clarification of the Plenum of the Supreme Court of the Russian Federation.
Ultimately, the effectiveness and necessity of the institute of the correspondence legal procedure is confirmed by statistics.

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 design new approaches to the concept and legal nature of guarantees and compensations.The research based on the Russian Federation Labor Code norms and the labor law doctrinestudies the concepts, definitions of the guarantees and compensations. Russian labor law theory has notdeveloped the concept of guarantees and compensations, which obviously poses problems of applyingrespective norms of labor laws. This is especially evident in the case of mixing up the norms on guaranteesand compensations with the norms of the concept of salary. Besides, guarantees and compensationshave not been identified as part of the Russian labor law as a system. The paper proposes a system analysisof the problems of guarantees and compensations and the development of the conception guaranteesand compensations in the Russian labor law. This aim to be achieved, the following tasks should be approached:to reveal the features of guarantees and compensations as a category of labor law; to definethe concept of guarantees and compensations; to draw a demarcation line between guarantee paymentsand salary, as well as to differentiate various compensation payments as an element of the institutionof salary and compensations. The object of the research is the relation as to providing guarantees andcompensations to employees; the subject-matter are the norms of Russian labor law on guarantees andcompensations, theoretical assumptions of the experts in labor law. The work is the first complex researchof the fundamental concepts of labor law and the problems of guarantees and compensations in the modernenvironment. The presented theoretical assumptions contribute significantly to the conceptual modelof regulating guarantees and compensations and serve as a basis for further relevant research of suchcomplex legal concepts as guarantees and compensations and can promote to the development of theRussian Federation Labor Code and other normative legal acts containing the labor law norms.

Rogal'chuk Dmitriy - Postgraduate  Student, Department of Judicial Power and  and Justice Administration, Faculty of Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: dimitron@list.ru.

The article analyzes (in terms of guarantees of competent courts as a prerequisite for a fair justice) the cases of establishing and abolishing courts in the current the Russian Federation judicial system in thecontext of the unification of the Russian Federation regions. The analysis of the standards of competentcourts in narrow and wide senses supposes simultaneous integral features as a court, its independence, impartiality and competence. The article specifies and examines a narrow special aspect of interpreting a judicial court as an institution established exclusively on the basis of law. This requirement ensuressuch a condition of the judicial system as its stability and ensures the impossibility to pass arbitrarydecisions, to modify the judicial system, which is a prerequisite for the independence of courts. The analysis of the processes of reorganizing courts in unifying the Russian Federation regions reveals issues concerning the requirements to set up and abolish courts due to a legal law and observing theorder of relieving judges of the abolished courts and their reappointment in newly established courts(this concerns both life appointment of the Federal court judges and justice of the peace). The detailed analysis of regulatory legal acts at the level of the Federation and Regions shows that the regulation concerning the courts to be united lacks concretization. The law neither sets the order nor codifies thefact of elimination and setting up a specific court. Besides the issue of the federal courts, the problemsof reorganizing courts within lay justice are studied, proposals are made as to the further improvementof the regulation of lay justice at the level of federal legislation. The article concludes that the guarantees of legal courts have a practical application.

Vishnevskij Alexander - Professor, Department of Entrepreneurial Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: aavishnevsky@gmail.com.

The article analyzes the tendencies of the last decade as to approaches to the status of credit institutionsin the banking law of foreign countries. The status of credit institutions is being studied in thefollowing aspects: approaches to the concept of a credit institution — i.e. institutional and functionalfunctioning in different legal systems — the continental one, including EU banking law, and Anglo-Saxonsystem; legal capacity of a credit institution. The examples shown confirm the thesis on a special legalcapacity of a credit institution and legal patterns ensuring this special legal capacity of a credit institution.The latest post-crisis legislation is analyzed as the one aimed at involuntary restricted specializationof credit institutions — the division of the regular banking activity and risky operations among variouslegal persons subject to banking regulation and supervision; observing professional standards, i.e.the best practice as to the cooperation with the clients of different legal nature in various legal systems(presupposed terms and conditions between the bank and the client in the UK, judicial supervision ofstandard requirements in Germany); implementation of public law functions supporting the conclusionon the changed nature of banking. Credit institution serves as an entrepreneur interested in earningprofit and the institution performing public functions in the banking system. Credit institutions performthese functions in addition to earning profit — however performing public law functions is considered asthe function imposed but immanent for banking as entrepreneurship of a credit institution is carried outin the financial area which serves to perform public functions by nature in modern society.

Kachurina Tatyana - Postgraduate Student, Department of International Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: mejpravo@hse.ru

This paper deals with the problem of the international public procurement sector regulation in theregional trade unions in the European Union. The article examines the key regional legal documents ofthe European Union such as EU Directives and analyzes the problems of their legal application at thenational level. The directives form the basis for the regulation mechanism of the public procurement andcoordinate procedures for public bidding for both private and state-owned enterprises. The directivesencourage free competition in the bidding process and stimulate cross-border trading. The paperdescribes various ways of applying the basic principles of the public procurement law (in particular, itdeals with the aspect of the transparency principle as a mechanism to control public contracts’ award).The principle of transparency is considered in the paper as a “monitoring tool” for public procurementcontracts. Transparency principle is described in international judicial practice, where the goal of applyingthe transparency principle is seen as a guarantee of compliance with other fundamental legal principles (e.g. the principle of fair competition and the principle of non-discrimination). It describes EU Directives’subjective and objective application scope and the procedures of public procurement contracts’ award.The article points out the main terms and conditions of the tender procedures and outlines issues ofpossible violations of the EU and national law by the public authorities involved in procurement practice.The article provides a detailed overview of the tendering procedures’ types, the process of suppliers’qualifications and defines procurement financial thresholds. Directives prescribe four different publicprocurement procedures (open, closed, competitive dialogue procedure and negotiation). Presenting ofthe essential internal company or financial documentation is compulsory step in the process of suppliers’qualification. The article also discusses the importance of the most advantageous economic proposalsin the procedure of the contract award. The author refers to the topic of advertising as a method ofimportant information disclosure during the tendering process and discusses potential «pitfalls» in thefield of information security breach. The article analyses EU judicial practice and raises the issue ofapplication of the «in house» doctrine.

Anisimov Igor' - Postgraduate Student, Department of International Law, National Research University Higher School ofEconomics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: i-anisimov@mail.ru.

The article studies the international law issues of protecting underwater cultural heritage. The analysis offactors deals with those affecting the protection of objects of underwater cultural heritage including thoseof legal character and is added with detailed classification. Among the problems, the author has studiedsome factors such as drawbacks of the legislations of states which have not joined the 2001 Convention,the jurisdiction for sunken vessels and aircraft. One of the conclusions arrived at was that the factorscan lead to the destruction of such objects or inhibiting access to them. The harm is brought to both theobject of underwater heritage and interests of science. The article analyzes the current legal basis as tothe protection of underwater cultural heritage. The documents studied in the article include UNCLOS, theConvention on the Protection of the Underwater Cultural Heritage, 2001. The author shows controversialprovisions of these international law acts and makes a conclusion that these provisions can createsituations when the objects of underwater cultural heritage are the object of international disputes. Havinganalyzed the factors affecting adversely the preservation of underwater artifacts, the author concludesthat the major threat for the objects of underwater cultural heritage is posed by anthropogenic factors.In particular, non-compliance with the 2001 Convention, national legislations, insufficient legal base andother factors. The analysis of international law acts, the author arrives at a conclusion on the necessity toamend existing measures of legal protection regarding underwater artifacts.

Lebed' (Efremova) Valeria - Senior Researcher, Institute of State and Law, Russian Academy of Sciences, Candidate of Juridical Sciences. Address: 10 Znamenka Str., Moscow, 119019, Russian Federation. E-mail: vefremova@bk.ru.

The article analyzes French normative and doctrinal material as well as judicial practice on the use oftraditional and non-traditional objects of copyright in the current digital reality. It features changes inlegal relations between subjects and objects of copyright in the information society. The author studiesmodern European in particular French legal mechanisms of regulating copyright relations. It has beennoted that France responds to new requirements of digital reality though maintains traditional conceptualfundamentals of copyright which still rest on the balance of interests of author, product of creativityand society. Besides, the author has examined legal regime of multimedia products in particular Internetweb sites and audio-visual works. French law has achieved a good level to make legal and digital realiacloser. The article touches upon the problem of implementing and protecting author’s rights on the Internet;notes that implementing and violating copyright in particular unauthorized copying of works is asubject matter for an academic discussion in France. The mechanisms of fighting piracy are connectedwith two directions of activity: the system of blocking access to web sites with the information violatingcopyright limiting illegal offer and prosecuting violators. The opportunity provided by law to a copyrightholder to enforce blocking the access to unauthorized sites aims to reduce their number. On the otherhand, the scheme of gradual reaction is an opportunity to escape the trial and meet the interests of theauthors of creative works. Hence, the French legislator ensures the protection of intellectual propertyand guards the interests of society providing accessibility to cultural, informational and other resources.

Chikeeva Zura - Assiociate Professor, Head of the Department of Theory and History of State and Law, Kyrgyz-Russian Slavic University, Candidate of Juridical Sciences. Address: 44 Kievskaya Str., Bishkek, 720000, Kyrgyz Republic. E-mail: aliya.m@inbox.ru.

AbstractThe article deals with specific features of the system of the sources of law in the Kyrgyz Republic intransitional period. The works of legal scholars as to the concept of source of law have been analyzed.Practical significance of the problem of the sources of law in transitional periods has been researched.The analysis of pluralism of legal theories allows selecting three major approaches to the problem of thesources of law: normative, of natural law and integrative. The modern legal studies tend to identify thesource of law with the form of law. Source of law is understood in material and philosophical meanings.The term source of law symbolizes the force generating law. The transitional period in the developmentof the Kyrgyz Republic may be recognized as a major factor determining the nature and character of thecountry’s system of sources of law. Due to this, at the period of the development of the legal system inthe Kyrgyz Republic, the necessity to study the source of law is evident. The system of the sources ofsocial law began in the Soviet period. After the collapse of the USSR, the system of sources changedand got a new content having fixed the democratic component as a guideline in the development of thestate. The source of law started developing after the first Kyrgyz Constitution was adopted in 1993. Themajor source of law in Kyrgyzstan is a regulatory act. The constitution dominates in the source of lawsystem. However, in the context of globalization international treaties and legal custom are consideredas sources of law either. The interaction of the sources of law occurs within a single system. During thetransitional period, the legislation has exposed the drawbacks compensated by by-laws and legal institutionsof legal analogy. In the period of globalization and integration, the norms of international law andinternational treaties are becoming one of the major sources. However, the Kyrgyz Constitution of 2010does not codify the priority of international law norms over the domestic law of Kyrgyzstan. Besideslegal tradition, legal norms typical of Kyrgyz common law (adatu) such as aqsaqal tribunal and tripleaiyp are of special importance. Thus, the historical development of the Kyrgyz Republic is reflected inthe system of the sources of law.

Podkopaev Sergei - Procurator, Head of Department of Representation in Court, Prosecutor’s Office, Candidate of Juridical Sciences. Address: 13/15 Reznitskaia, Kiev, 01011, Ukraine. E-mail: s.podkopaev@g.mail.com.

The current stage of the public prosecution reform is rather dynamic in Ukraine. In 2012, the countryadopted a new Criminal Code which changed the conception of procedures and prosecutors’ status atpre-judicial stages, amendments were made to the law of Ukraine On Prosecutor’s Office. A committee established by the Ukrainian President developed a draft of the law On Prosecutor’s Office. The document was introduced into the Ukrainian Parliament late in 2013. The vital necessity in the efficiencyof prosecutors’ offices by developing sufficient guarantees to implement it motivated the applicationof foreign experience in this area. International documents do not specify the necessity to makecollegial decisions concerning the appointment of public prosecutors, the course and termination oftheir service. However, this conclusion can be made due to the analysis of the norms involving fair,impartial and objective procedures. Some countries including France, Portugal, Poland, Moldova etc.provide the decision on the status of public procurators to be made by collegial bodies. The draft of thelaw On Prosecutor’s Office provides for establishing self-administration bodies of prosecutors’ offices.Besides, established principles of prosecutors’ activity i.e. centralization and individual responsibilityare reviewed. The former is not specified in article 3 Prosecutor’s office activity. The article examinesbrand-new provisions of the law On Prosecutor’s Office as to establishing the bodies of procurators’self-regulation and commissions on qualifications and discipline and reveals the essence of the bodies.

Pochekaev Roman - Head of the Department of Theory and History of State and Law, Saint-Petersburg campus of National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 16 Soyuza Pechatnikov Str., Saint-Petersburg, 190008, Russian Federation. E-mail: ropot@mail.ru.

In the article the evolution of tax structure in Kazakhstan during the imperial period is observed, theprocess of integration of Kazakhs into imperial political and legal field is analyzed. The reform of taxationis considered as one of ways of frontier modernization of the “national remote area” of the RussianEmpire.During the first stage of Kazakhstan’s being in the Russian Empire yasak as traditional form of taxationwas saved as it was used among nomadic peoples of Eurasia since the Mongol Empire. But as integrationof Kazakhs into imperial political and legal field intensified, taxation system was changed to drawlocal population together with one of another regions of the Russian Empire. Correspondingly, little bylittle Turkic-Mongol yasak (something like ‘income tax’) was changed by fixed ‘kibitochnyi sbor’ (kibitkatax). Despite the fact that it had negative consequences for many poor people of Kazakhstan, in generalreform was accepted without substantial discontent. Possibly, it could be explained by its gradualnature: firstly it was realized in the Little Horde of Kazakhs (closer connected with Russia) and then inthe Middle Horde. The success of the reform which began in 1830s was fixed in the legal acts of 1860sand 1890s.Author suggests to consider taxation reform in Kazakhstan not only within the framework of budgetpolicy against nomadic subjects to increase incomes from these region bat as a part of scaled transformationsduring the modernization process at that time — epoch of the Great Reforms of Alexanderthe Second. Comparing of information about taxation reform and another political and legal processeswhich took place in Kazakhstan in 19th c. confirms such opinion.

Sivitsky Vladimir - Professor, Department of Constitutional and Administrative Law, Faculty of Law, Saint Petersburg Campus of National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 16 Soyuza Pechatnikov Str., Saint-Petersburg, 190008, Russian Federation. E-mail: VASivickiy@mail.ru.

The text is a review of the book by N.S. Bondar’ Russian Legal Education as a Constitutional Value:National Traditions and Cosmopolitan Illusions (The Library of Judicial Constitutionalism series, Issue3, Moscow, 2013). The review states that Bondar’s book is the first separate work systematizing theproblems of the modern Russian legal education. The review notices the conceptual and emotionalcomplexity of the book despite its small size, and a serious contribution to arranging the discussion onRussian legal education in the form of a publication. There is an attempt to debate on some ideas expressedby N.S. Bondar’. In particular, he is skeptical about the Bologna process as to legal education.In response, an attempt has been made to consider the situation in a more constructive way allowinglarge centres of legal education to work in these conditions and use the bachelor — master pattern toimprove the educational environment (which is not denied by the author) by prohibiting master programsin weak legal schools. N.S. Bondar’ writes about the necessity to ensure the constitutional modelof the modern lawyer which should overcome the extremities of enforcement and entrepreneurial modelsof lawyers and the erroneous in the author’s opinion philosophy of legal pragmatism. In response,an attempt has been taken to show soft spots of lawyers educated under the constitutional model forworking in the actual environment. A proposal has been made to implement various models of preparinglawyers in the centres of legal education without abolishing the architecture of legal education for thesake of a uniform model of preparing lawyers. This does not deny the necessity to process attentivelyconstitutional law devices and ways of protecting the rights applicable to every legal area. As a conclusion,it should be said that the book by Bondar’ has laid the foundation to realizing the current Russianlegal education. Keywords: legal education, preparing lawyers, Bologna process, bachelor program,master program, constitutional model of a lawyer, legal pragmatism