2014. No. 1

Richard A. Posner - judge on the United States Court of Appeals for the Seventh Circuitin, Professor of the University of Chicago Law School. Address: 1111 East 60^th Str., Room 611, Chicago, IL 60637, USA. E-mail: rposner@law.uchicago.edu.

A modernizing nation's economic prosperity requires at least a modest legal infrastructure centered on the protection of property and contract rights. The essential legal reform required to create that infrastructure may be the adoption of a system of relatively precise legal rules, as distinct from more open-ended standards or a heavy investment in upgrading the nation's judiciary. A virtuous cycle can arise in which initially modest expenditures on law reform increase the rate of economic growth, in turn generating resources that will enable more ambitious legal reforms to be undertaken in the future. Legal reform is an important part of the modernization process of poor countries, but the focus of such reform should be on creating substantive and procedurally efficient rules of contract and property rather than on creating a first-class judiciary or an extensive system of civil liberties. This is a general prescription, however, and the proper legal structure for an individual country will depend on a host of considerations. The fundamental tradeoff is between making a rather modest investment in better rules and making a big investment in the judiciary. The more costly it is to create a high-quality independent judiciary, the more beneficial it is to focus legal reform on the adoption of substantively and procedurally efficient rules. Indeed, if the law's administrative infrastructure is sufficiently weak, even good rules may simply be ignored. Economic progress is possible with little — perhaps with no — law and can be stifled by ex­cessive investment in public-sector projects, including legal reform. A small expenditure on law reform can increase the rate of economic growth, which will in turn generate additional resources for more ambitious legal reforms later.

Dorokhin Victor -  Postgraduate Student, Law Faculty, Saint Petersburg State University.  Address: 7, 22 Liniya VO, Saint Petersburg, 199026, Russian Federation. E-mail: v-dorohin@ya.ru.

The paper deals with the biography and the landmarks in the intellectual activity of Richard A. Posner, an American legal theorist, one of the founders of a modern jurisprudence theory, i.e. economic analysis of law. In this article, which is an introduction to the translated article by Posner Creating a Legal Framework for Economic Development, the author of the article focuses on the contribution of the legal theorist to the modern discussions on the balance between economics and law and the explanation of human behavior. The author of the article stresses that Posner's achievement is the application of the economic theory to understand the behavior of the subjects of law and to regulate the activity of various public institutions including those of antimonopoly policy, utilities and telecommunication market, as well as the issues of civil law responsibility, contract and procedural law. R. Posner has developed and justified the theory that common law may be best interpreted via the intention of judges to maximize the economic efficiency to resolve legal cases and extrapolated the economic analysis of law to new for such an analysis aspects, i.e. family relations, race discrimination, privacy, judicial practice. As to the economic analysis of law, Posner specifies two major causes. First, people even taking non-market decisions e.g. selecting a driving speed show rationale and maximize benefit from a certain decision considering the costs related to this choice. Secondly, norms of law set prices on a certain decision. Thus, changes of prices influence the quantity of activity which a person is ready to perform. The author is confident that studying Posner's ideas is a relevant task for Russian jurisprudence.

The article examines the reasons for a variety in the interpretation of constitutionalism in Russian legal literature. The author divides the views into preliminary and current. The former relate to the lack of democratic constitutional traditions in this country and of studies on the Russian constitutionalism at the time of the USSR collapse. The latter group covers the methodology of the issue: linguistic and of cul­ture and history. The author suggests one of the material reasons for the lack of unanimity on constitu­tionalism is the polysemy of the underlying concept of constitution. On the other hand, constitutionalism is often identified with a proper architecture of state power and the criterion for propriety is understood in a variety of ways. The architecture implying that the power should follow a certain supreme law (idea) should be considered as a way of its legitimacy. The article considers incorrect the use of the concept of constitutionalism to define the models f power having existed many centuries or even millennia before it. However, the history of English constitutionalism confirms the possibility to widen its structure at the expense of certain feudal institutions which modified the trajectory and form of this branch. The paper shows five periods of constitutionalism. Only the first of them (until 1917) does not exceed the limits of European political and legal culture in terms of social and cultural differences between the countries where constitutionalism has been shaped. In Soviet Russia another constitutionalism was being formed as it opposed all the previous models. After WW2 (3^rd period)the International Bill of Human Rights was approved which is implemented in many countries, universal and municipal international mechanisms are being created. Constitutionalism exceeds national borders and acquires the features of an interna­tional structure. The fourth period is associated with the proclamation of independence of the former colonies in Asia and Africa. Remaining obsolete pre bourgeois relations impede the competency of constitutionalism. The fifth period started after the USSR collapse and is characterized with the inconsis­tency of democratic principles in the constitutions and the institutions to social and cultural environment of emerging post-soviet states.

Relationship between two branches of Public International Law applicable in armed conflicts — Interna­tional Humanitarian Law and International Human Rights Law has been described by three main theo­ries: a competitive, complementary and integrative one. The key point of the competitive theory consists in the impossibility of the simultaneous applicability of both branches that is deduced by qualification of International Humanitarian Law as lex specialis that excludes applicability of the International Human Rights Law. The complementary theory is based on the partial overlapping and mutual complementar­ity. Representatives of the integrative theory recognize a possibility of a full or partial merger of norms provided by International Humanitarian Law and International Human Rights Law. This integration is understood as taking place at the level of norms and not as a mere possibility of unification of two branches under any common title.
International treaties on human rights, on one side and treaties on International Humanitarian Law on the other do not contain provisions which would exclude joint application of their norms. Moreover, these treaty rules either implicitly or implicitly provide for such a possibility. Application of the lex specialis derogat legi generali principle at the level of branches of Public International Law is not correct and does not allow to deduce the inapplicability of norms belonging to International Human Rights Law in armed conflicts. The United Nations Human Rights Committee, the European Court of Human Rights, the Inter-American Court on Human Rights and the African Commission on Human and Peoples' Rights have acknowledged the mutual complementarity of International Humanitarian Law and International Human Rights Law norms in their decisions.
A possibility of integration of norms belonging to both branches, firstly, derives from the ability of Inter­national Humanitarian Law norms to serve as a limit for restriction of human rights by a state in armed conflicts, and, secondly, follows from the specific nature of international law-making, as international customs cristallize outside the framework of an artificial and in many aspects a scholastic division on branches of International Law.
Therefore, international treaties and customs, as well as practice of the International Court of Justice and international judicial and quasi-judicial bodies, allow to draw a conclusion on inconsistency of the competitive theory, mutual complementarity of the norms of both branches and existence of a potential for their integration.

Salygin Eugin - Associate Professor, Department of Theory and 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.

Legal system is a concept embodying the multifacetedness of law, i.e. its internal architecture (elements of law which are complex systems per se), correlations within the system, interaction of law with other parts of socium. Legal system has been the subject matter both of law and sociology of law. Each of the sciences has developed its own approaches to this phenomenon, which do not tend to cross. Each sci­ence makes its own path not addressing the achievements of the interdisciplinary discipline. Sociology of law doctrines are considered by the author as the instruments to widen the cognitive borders of the traditional for lawyers positivist approach to law, to discover topical research perspectives. On the basis of the views of T Parsons, D. Black, N. Luhmann, P. Bourdieu, the article develops the methodology of the social approach to legal system, reveals its advantages and disadvantages. Sociologists are used to shifting a significant role in functioning legal system to legal professionals. They focus on the contradic­tions in the relations between legal framework (legal system, normative system etc.) and politics. The views of sociologists are extrapolated to the current reality of Russian legal system. Its majour issue is seen in the imbalance between law and politics as the ruling elite imposes a beneficial for it structure of legal system on society, intervenes in legal communication including judicial enforcement of courts and law enforcement agencies. The majour attention of lawyers should be drawn to ensuring their rela­tive independence, widening the autonomy of legal framework and legal communications, and building up their authority when adopting paramount legal acts. This is the only way to create a prerequisite to tackle the problems which the legal system of Russian society is facing. The article covers the current empirical legal approaches suggested by sociologists as well as the causes for such research, results, perspectives and possibilities to engage jurists in such studies.

Vishnevskiy German - Deputy Head at the Judicial Department at OAO Evraziyskiy, member of the Board of Directors at OAO PO Vodokanal, postgraduate student, Department of Judicial Power and Justice, Law Faculty, National Re­search University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: vishnevskiy_g@mail.ru.

The article studies the issues of ensuring the rule of law principle at the stage of reviewing judicial acts having come into force due to the judgement (alteration) made by a higher court into the practice of applying the norms of the applicable legislation. The procedural mechanism of overcoming the legal force of judicial acts due to this position of higher courts is criticized by the author because of its inconsistency with the rule of law principle, based on its integral element — the principle of legal judgement requiring the observation of the res judicata principle. Res judicata presupposes the conclusiveness of the final judicial act, i.e. the act not subject to a separate appeal. The conclusiveness of the judicial fact supposes the ban on the review of the final judicial act by ordinary causes; necessity to review it within the strictly determined periods and according to the procedures only if judicial mistakes have been revealed which influenced the decision. At the same time the mechanism of reviewing judicial acts analyzed by the author supposes the cancellation of the final judicial acts on this usual circumstance due to such a cause as the breach of consistency in the views of the content of prescriptive texts. The cancellation of judicial acts during their review due to new circumstances subject to the legal position of higher courts is essentially similar to the reversal of judicial acts under point 1 part1 article 304 of RF Arbitration Procedural Code and point 3 of article 391.9 of RF Civil Procedural Code (violation by courts (arbitration courts) in terms of consistency in interpreting and applying legal norms. On the basis of case practice of the ECHR recognizing the reversal of judicial acts which have entered into force including during the procedure of judicial act review on new or recently revealed circumstances, due to their inconsistency with the interpretation of the norms of law by higher courts — an intolerable digression from the principle of legal certainty and the intervention in the private property law, the norms of applicable Russian procedural legislation regulating the review of the case due to the position of a higher court, in their interpretation of judicial practice, the author arrives at a conclusion that the cancellation of the final judicial acts delivered on the cases pursuant to civil-law rela­tions due to the position of a higher court contradicts the rule of law principle. As to the cases on public-law relations the cancelation of the judicial acts having come into force due to a new position of a higher court is allowed only if the conditions of citizens and associations disputing with the state improve.
Rule of law means an interdependence of state power subjects, their supreme value in society and state. Rule of law is not a formal legality as it suggests the primacy of human rights in regard to laws and the activity of state power subjects and ensuring formal equality by power subjects as human rights are the values conditioning the activity of authorities.

The article is devoted to the necessity of formalizing the notion of national heritage as it has become frequent in the speeches of the people belonging to representative, executive and judicial bodies. The paper shows the approaches to the definition of the category of national heritage, analyzes the origin of the words heritage and national, describes the synonyms of the notion of national heritage and its modifications used in the federal legislation, e.g. "public heritage of the multinational people of Russia" or "components of national heritage). Despite the absence of the word heritage in RF Constitution, it is frequently used by federal and regional legislators. The paper shows the models of understanding the category of national heritage: common things for all, the Soviet model and a widespread use of the term in declarative documents. The article describes a comparison between national heritage and similar terms and legal categories such as national wealth, public domain, public property, ownership, state property. The article describes cases and manners of use of the term national heritage in the regulations. National Resource is analyzed as an interbranch legal category, which is a combination of some objects, and as a certain legal order of ownership, operation, other uses, protection of these objects. The article analyzes the legal content of the national heritage regime on the example of the natural resources. The article outlines the characteristics of the objects of national resource, the subjects of the national resource regime in accordance with the Constitution of the Russian Federation. The article discusses the necessity of creating a universal legal regime of the national resource, which establishes common principles and directions of legal regulation. The article describes the legal regime of the certain types of objects of national treasure fixed in the legislation. The article outlines the peculiarities of national treasure regime, the peculiarities of management features, including the government management, of the objects of national resource in the Russian Federation and abroad.

The article studies the special features of the Bank of Russia legal status and the related to it issues of applying exemptions by the Central Bank provided by the Russian Federation Tax Code (hereafter RFTC) to pay state duty in particular relief from it. The issue shows the ambiguity of the Bank of Russia legal status as a legal person and a state body, its attempts to apply the exemptions subject to RFTC for federal state bodies and other persons. The article analyzes judicial practice of arbitration courts, courts of common jurisdiction and the position of the body entitled to clear up RFTC application, which has been settled in recent years. The analysis has shown in particular the actions for which the Russian Federation Central Banl paid the duty and when the bank required to return it. The article examines the cases applied by lawyers for or against the decisionson on this issue, shows the ambiguity of their approaches and inconsistency. The author has paid attention to the recent change in the version of an RFTC norm prioviding the legal cause to exempt the Bank from paying state duty and a conclusion has been made that the decision on the legality of the exemption by the Russian Federation Central Bank is given to the disposal of courts. Finally, the conclusion has been made to amend the law to endsure a single approach to this issue including by fixing a list of cases when the Russian Federation Bank as a legal person acts in its own private interests when it must not be reliefed from state duty. The analysis concludes with the fact that the issue of exampting from state duty concerns not only the Russian Federation Bank but other subjects whose legal status combines with the elements of private and public law e.g. state corporations, state companies, which has been illustrated by judicial cases.

The paper analyzes the legal law institution of compromise representing a system of legal norms allowing the parties in the event of the conflict of interests to reach (within certain limits) implementation of such norms. This is a tactical device based on: 1) refusal of the state from criminal law response to the crime if e.g. a) the committed crime or the person who committed it is characterized with a minimum of danger, or the forbidden by law deed was committed for a good purpose provided by law; b) a possibility is given to exchange a foreign citizen who committed a crime against the interests of the Russian Federation or a person without citizenship to the Russian Federation citizen prosecuted abroad; 2) agreement between the state and its citizen suspected or accused in committing a crime as to the behavior of the person such as: a) relief from criminal liability or punishment; b)mitigating the punishment. Taking into account the special features of the parties, the compromise may be divided into at least two types: a compromise between state and society as to a)general principles, causes and limits of criminal responsibility; b) crime and punishment of special types of dangerous for society deeds; 2)between the state and its citizens as to a) their guilt, liability and a specific punishment; b) agreement between the guilty and victim as to the ways of resolving a conflict involving criminality; 3) state and another state as to a) exchange of the prosecuted persons — citizens of different states or living there and a person without citizenship; b) extradition to another state the prosecuted a foreign citizen or a person without citizenship. It has been suggested to improve the efficiency of the institution of compromise in criminal law.

In the article, the author analyzes the main approaches to the interpretation of the term legal protection that is given a key role in the mechanism of law regulation. The fundamental positions of each approach are viewed, with similarities and differences in its understanding, which as the author suggests, demon­strates the versatility of the concept. In this regard, the author of the article points out the need for the interpretation of the term not only as a phenomenon, but as a certain activity. Besides, it is important to consider wide and narrow meanings of this concept, due to the existing views on the essence of legal protection and the applicable laws. The author also studies the issues of legal protection ratio with simi­lar legal mechanisms, such as the legal protection of rights. The basic criteria for distinguishing between the terms are the object and purpose of activity, subject composition, time and nature of the activity. The author comes to the conclusion that the terms legal protection and legal defense can be used as syn­onyms, but only in some strictly defined cases. Thus, the author believes that the term legal protection (legal defense) in the substantive aspect can be understood as the whole set of forms and measures as well as other safeguards against a person infringing or threatening to infringe upon the rights of third parties to ensure normal existence of public relations and that are statutory conventional. In its broad sense and the procedural legal aspect the term legal protection (legal defense) can be understood as a special kind of state and society activity aimed at ensuring a smooth implementation of subjective rights and legal duties (i.e. to maintain the existing order) carried out by special authorized subjects (in this case the lawmaking subjects) or by the whole society to establish or change legal norms that per­petuate possible measures and forms of influence on people infringing or threatening to attack specific tangible and intangible benefits as well as other safeguards and thus to ensure a normal life of society or repeal regulations preventing such.

Tereshchenko Ludmila - Deputy Head, Department of Administrative Legislation and Process, Institute of Legislation and Comparative Law under the  Government of Russian Federation, Doctor of Juridical Sciences, Honoured Lawyer of Russian Federation. Address: 34 Bol'shaya Cheryomushkinskaya str., Moscow, 117134, Russian Federation. Email: adm2@izak.ru.

The paper studies the issues related to applying cloud technologies in state administration. Though cloud technologies are not in active use in this country, the tendency of widening its application is evi­dent. Program documents have been adopted to envisage national platforms of cloud services. Current­ly, cloud services of foreign providers are being used, which raises issues related to information security and the possibility to apply them by state and municipal bodies. The current legislation is being analyzed in the view of the current limitations in the use of cloud technologies in state administration. The author concludes that the current legislation does not impose any direct bans against the possibility of applying cloud technologies but the bans and restrictions may be related to a certain kind of information: state secret, confidential information, types of secrets, obligation of parties to obtain a written permission of the other party to transfer the information to a third party. Hence, prohibition of cloud services of Rus­sian state and municipal organs, other organizations involving state and local authorities may affect the character of the processed information and the legal regime set for it. Applying cloud technologies is justified by a number of contracts with various degrees of control over the processed and stored in the clouds information, which influences the decision on applying clouds. One of the causes why cloud calculations may be restricted in use relates primarily to transferring some functions to a clouds provider and thus loss of control over own data. The user does not always have enough and reliable information to assess the security of the cloud technologies used by the provider, guarantees to keep this informa­tion and ensure the control over maintaining this regime of information.

Get'man-Pavlova Irina - Associate Professor, International Private Law Department, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., 101000, Moscow, Russian Fe­deration. E-mail: igetmanpav@hse.ru.

The article analyzes judicial enforcement experience, legislation and French and Russian doctrines as to refusing to recognize and execute foreign arbitration awards as this contradicts ordre public. A divi­sion is made between the categories of domestic ordre public and international ordre public. The majour methods applied in the paper are comparative analysis and comparative law. The article touches upon the problems of material ordre public. A conclusion has been made that defining this category poses a serious problem. In comparison, the category of procedural ordre public is easier to define. Judicial practice does not give a definition of material ordre public but the underlying principle is that the system of principles and values embodying a national ordre public cannot be recognized even in international cases. French legislation and judicial practice has the concept of international ordre public and recog­nizing and enforcing foreign arbitration awards is understood in a narrower sense than international ordre public. Russian legislation does not operate the concept of international ordre public, but the analysis of legal norms allows making a conclusion that when recognizing and enforcing foreign arbitra­tion awards, not a public order of the Russian Federation is meant but public order taking into account international obligations of the Russian Federation and the character of relations containing a foreign element. The research has allowed making the following conclusions. It is required to draw a clear line between French domestic law and international arbitration law as when checking a foreign arbitration award a judge can not refuse exequatur due to the wrong application of the norms of domestic ordre public. A simple violation by an arbitration award by French ordre public is insufficient to recognize it contradicting international ordre public. Russian legislation regulating the issues of recognizing and en­forcing foreign arbitration awards needs to include the concept of international ordre public understood as fundamental legal principles of mandatory nature, universal character, special public significance and being the basis for economic, political, legal system of the the Russian Federation considering its international obligations and the character of relations related to foreign enforcement.

Le Corre Pierre-Michel - Professor, Faculty of Law and Political Science — University of Nice Sophia Antipolis. Address: Avenue Trotabas,  Nice, 06050, Cedex France. E-mail: pm.lecorre@orange.fr. 

Any bankruptcy case tends to involve the scrutinized examination of the condition of the debtor's prop­erty. The result is based on the indivisibility of property principle. Recently, a French lawmaker aiming to find debtors and creditors for a certain category of citizens and the protection from the conseqiuences of insolvency has had to question the traditional indivisibility of property principle. This leads to making complicated the legal system under discussion. The article analyzes the legal mechanism facilitating to settle the issues of insolvent enterprises. The evolution of the French law regulating the insolvency of enterprises is very characteristic. The French legislation on bankruptcy has seen serious changes in the last 30 years. Hence, the early 2000s have become the turning point in the history of the legislation regulating bankruptcy. It has allowed differentiated regulation of the debtor's property which is subject to bankruptcy proceeding for the first time. In other words, the regulation of the property of the debtor which is subject to bancruptcy proceeding is becoming a variable. However, to make French law ap­pealing to foreign investors, legislators introduced the mechanism of guarantee payments for creditors based on the division of property, which is common in common law countries. As to the property of en­terprises, the corporate law evolution is still incomplete. A very French tendency to reform generates the ambition to develop sophisticated mechnisms to meet a widening range of specific needs. This makes the law tangential to its majour aim, i.e. to compile general norms of law and will probably lead to the development of more complicated mechnisms unless a darstic simplification of our legislation happens by chance under the influence of foreign laws which will show that keepig simple is a key to achieving perfect results.

Lukyanova Elena - Professor, Department of Con­stitutional and Municipal law, Law Faculty, National Research University Higher School of Economics, Director of the Institute of Monitoring Efficiency of Judicial Enforcement at Russian Federation Public Chamber, Doctor of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: pravoslovo@mail.ru.

The article is an attempt to analyze the transformations in the relations between the state and society in modern Russia. It analyzes public reaction to five high-profile changes in Russian legislation between 2012-2013, toughened sanctions for the involvement in public events, introduction of the concept of noncommercial organization — a foreign agent, freedom of discussion limitation, in mass media and the Internet, a wider interpretation of the concept of banned political activity. The amendments to the legislation have become the response to an extremely high public activity since the 2011-2012 winter. Each of the laws in question was the subject matter of heated criticism in society and its application got actually blocked. Public examination confirmed common disadvantages relating to both the content of law (substitution of its subject matter with legislative objectives) and the procedure of its discussion af­fected by the violation of laws and principles of legislative process. The laws were adopted for a special purpose, i.e. ad hoc. This circumstance makes all the five acts dubious in terms of constitution and causing violations against the constitutional rights of citizens. Besides, they contradict international ob­ligations taken by Russia. The acts in question are typical of legal uncertainty (ambiguity in presenting normative content). Finally, all the acts analyzed violate the consistency in Russian legislation. The pub­lic response to this irrelevant regulation was intentional public disobedience. In this regard, the analysis of the causes in the situation is of special importance which is embedded in the process of election and counting votes. Negative selection is applied when making up the body of the parliament, people included in it as the representatives in parliament depends on the degree of loyalty of their majority to President and the executive power. This is the cause of deprofessionalisation of lawmaking in the Rus­sian Parliament and a lower level in its competency and thus a similar attitude to its activity by society.