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Legal thought: history and contemporarity
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4–16
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Krylova Ninel’ - Leading Research Fellow, Institute of State and Law, Russian Academy of Sciences, Doctor of Juridical Sciences. Address: 10 Znamenka Str., Moscow, 119991, Russian Federation. E-mail: ninelkrylova@mail.ru.
A financial crisis is an important factor promoting to the development of common principles and rules of implementing financial and economic functions of state. All the crises experienced by mankind have had a lasting influence. One of the characteristic features of the 2008–2009 financial crisis is the environment of globalization. This promoted to the processes of harmonization and standardization to regulate financial relations. The crisis revealed a trend to a strengthened interaction and cooperation of states to overcome the crisis or weaken its consequences. The cooperation was being performed at regional or international levels. The mechanisms and standards arisen after the crisis were not curbed after the crisis and the beginning of the rehabilitation period. The author studies the EU practice in the area of new standards and mechanisms and financial stabilization, the provisions of the new fiscal pact. The paper mentions the establishment of the European Stability Mechanism, a strengthened role of the ECB, covers EU activity in the area tackling tax evasion and offshores. A question is being discussed on establishing the mechanism of automatic exchange of information (FATCA). The crisis has revealed the trend to strengthening the role of constitutional law mechanisms to solve financial and economic issues. The article says about a higher role of representative bodies to solve budget issues, the increased role of judicial institutions etc. As a result, the author arrives at a conclusion that during the global crisis a certain improvement has appeared as to the interaction of supranational and national standards and mechanisms of financial regulation. The breach of legal recommendations providing mandatory rules and principles of decision-making in budget and financial issues may bring serious economic and fi- nancial aftereffects. These things bear lessons and long-term consequences of the 2008–2009 global economic crisis. |
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17–28
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Evgrafova Yelyzaveta - Judge of the High Specialized Court of Ukraine for Civil and Criminal Cases, Сandidate of Juridical Sciences. Address: 4a Pylypa Orlyka Str., Kiev, 01043, Ukraine. E-mail: evgrafov.pasha@yandex.ru. This article is devoted to the research of the problem of objectivity of law in scientific work of the distinguished Russian scientist and legal scholar, professor Sergey Sergeyevich Alekseev. This topic has attracted his attention since the very beginning of his scientific work. He gave an exceptional priority to the objectivity of law. First of all, he specially defended the autonomy of law in the system of social order. In this context, he considered the law not only as a service for the economy, politics and state power but as a significant regulator of social relations. Analyzing the ideas and conclusions of the scientist which he formulated in different periods of research, the paper shows the evolution of his scientific views. It is noted that professor Alekseev was one of the few scientists and legal scholars who wrote openly about law as an objective social reality in Soviet literature of the 1950s — 1980s. He did not overemphasize the objectivity of law as he understood it as autonomy of law in relation to other social phenomena. In this regard, his research paid more attention in legal science to re-thinking dogmatic ideas about law, releasing law from scholasticism and doctrinarism. In legislation (positive law), the scientist suggests getting rid of all the controversial requirements of law, in particular existing in human rights and freedoms. Hence, he considers that there is a mismatch of law and right; therefore there is a difference between them, in particular the division of rules into legal and non-legal. Theoretical elaborations of the scientist as for objectivity of law were aimed at the radical change of attitude to law in society, starting with the head of state, public servants and every citizen. The paper also studies opposite positions of the scientists who deny not only the real fact of the objective in law but even the idea of it. In their opinion, such objectivism makes it impossible for social actors to participate in rulemaking; it has impact on law and considers it solely as a subjective form, the so-called product of lawmaking activity of state power. |
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29–35
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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.
This paper studies the biography and landmarks in the intellectual activity of Garry Becker, the American economist, Nobel prize winner in economics. The article written in the memory of the great economist focuses on the contribution of this American scientist to the contemporary discussions on the balance between economics and legal studies in connection with human behavior. The author stresses that the main achievement of Becker was applying economic theory to study the behavior of the subjects of law and the way public bodies are being regulated including criminal behavior in terms of economics, regulation of labour market, family and human capital. Becker developed and justified the theory showing that many models of irrational behavior such as a crime are the result of a rational choice made in difficult circumstances. On the basis of this suggestion, he argued that a way to decrease criminality is increasing the probability of punishment or strengthening liability for criminals. In the past, this suggestion went against common views of crime as a result of psychiatric disease or social inequality. Becker also studied the issues of family and economic consequences, upbringing of children, the size of families, divorce and other economic behaviours. One of the main line of Becker’s research was human capital. Becker was the first who developed the method in the general theory of distributing employment earnings to work with human capital. He formulated the so-called functions of human capital gain determined by the balance between earnings and human capital. Becker received the Nobel Prize in 1992 "for having extended the domain of microeconomic analysis to a wide range of human behaviour and interaction, including nonmarket behaviour". The author of the article is confident that studying Becker’s ideas is an important task for Russian economists, lawyers and criminologists. |
Russian law: conditions, perspectives, commentaries
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36–47
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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 paper examines the issues of the definitions of individual labour disputes, the bodies considering and settling them according to the Russian Federation Labour Code and the labour law doctrine. The study attempts to shape up new approaches to define the conception of individual labour disputes in Russian labour law. The science of Russian labour law lacks a properly developed conception of individual labour disputes, bodies to examine and settle them, which, obviously, conditions the problems of applying appropriate norms of labour legislation, other normative legal acts, containing the norms of labour law, collective agreements, agreements, local normative acts, labour agreements. The aain of the research is to keep developing the conception of individual labour disputes and the bodies to deal with them as well as to increase the efficiency of their legal regulation. To achieve this aim the following tasks should be solved: 1) show a brief history of the concept, 2) reveal the characteristics of individual labour disputes, 3) define individual labour disputes, 4) analyse as a system the bodies examining and settling such disputes; 5)introduce suggestions to develop chapter 60 of the Russian Federation Labour Code. The object of the research is the relations to examine and settle individual labour disputes, the subject-matter is the norms on individual labour disputes of the Russian Federation labour law, theoretical provisions of labour law academics on the research. The novelty of the research is that fundamental issues and problems to examine and solve individual labour disputes in current social and economic environment are studied on the basis of theories, the Russian Federation Constitution, UN International Pact on civil and political rights, legal position of the European Human Rights Court, the Russian Federation Labour Code. The formulated theoretical provisions and conclusions develop the conceptual model of examining and settling individual labour disputes, serve the basis for further research in this area and can be used to develop the Russian Federation Labour Code and other normative legal acts containing the norms of labour law. |
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48–60
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Buyanova Marina - 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: mbyanova@hse.ru.
The article is devoted to the procedural and material problems of individual labor dispute regulation in Rus- sia. A special attention is given to territorial jurisdiction, procedural terms (including terms of labor disputes and periods of limitation), different types of evidence and proving in consideration of labor disputes in courts. The author stresses the difficulties faced by employees in the provision of evidence (including written documents, witnesses, etc.).The author disclosed imperfections of dismissal legislation which prevent employee from recognizing in court that the dismissal is illegal and to take the previous job. The study makes it possible to arrive at the following key conclusions: 1. The applicable civil procedure and labor legislation about the consideration and settlement of labor disputes fails to include the principle of procedural equality of the parties. 2. The rule for the territorial jurisdiction of labor disputes set forth by Article 28 of the RF CPC (in the area of the respondent’s location) and the lack of a possibility of alternative consideration reduces the principle of impartial judicial litigation to zero. 3. Limited timeframes established for consideration of labor relations by courts prevent full judicial litigation. 4. Special timeframes for a worker to appeal to the court prescribed by Article 392 of the RF LC put him or her on unequal terms with the employer. 5. The rule forbidding a worker to add non-notarized copies of written evidence to the case materials predetermines the outcome of a court dispute. 6. A worker has no real possibility to prove that his or her rights have been violated by using the evi- dence of witnesses that are still employed by the employer. 7. A court’s right to refuse to satisfy a worker’s motion to conduct an expert evaluation of documents made available by the employer prevents the truth from being established in the case. 8. Lack of a procedure strictly established by law for dismissing workers for each of the grounds violates the principle of judicial practice uniformity. |
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61–71
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Butovetskiy Alexey - Deputy Head, State Duma Committee Administration on Land Relations and Construction, Candidate of Juridical Sciences. Address: 1 Okhotniy Ryad Str., Moscow, 103265, Russian Federation. E-mail: butovetckiy@duma.gov.ru.
The article features the drafts of federal laws submitted to the State Duma by the Russian Federation Government. These drafts aim to develop legal regulation of land relations in gardening, vegetable gardening and cottage economy. The author focuses on improving legislative regulation of land relations in gardening set in the Russian Federation President State of the Nation address of December 12/2013, instructions of the Russian Federation President, Conception of the Development of Civil Legislation prepared under the Russian Federation President Decree On Improving the Russian Federation Civil Code, the Russian Federation Constitutional Court judicial acts and recommendations developed by the State Duma. The paper examines the problems of implementing the judicial acts of the Russian Federation Constitutional Court recognized contradicting the Russian Federation Constitution provisions of the Federal law On Gardening and Cottage noncommercial Associations of Citizens as to the ban on registering citizens in their location in the dwelling facilities situated on gardening plots including in terms of the Russian Federation Government bill On Amending the Federal Law On On Gardening and Cottage noncommercial Associations of Citizens. Special attention is given to the bill of federal law no. 465407-6 On amending the Russian Federation Land Code as to classifying lands into the categories under territorial zoning aimed to eliminate one of the key institutions of land legislation, i.e. dividing lands according to the purpose into categories. The author has conducted a detailed analysis of consequences of this elimination for farmers and cottage owners. An extensive part of the article is devoted to the analysis of provisions no. 465407-6 On amending the Russian Federation Land Code and the Russian Federation legislative acts as to improving the order of providing land plots belong- ing to state or municipalities which will reconsider the order of allocating land plots for gardening. Besides, the author exposes the disadvantages of the current legal regulation of in this area and shows the ways of improving the Russian Federation Land Code proposed by the Russian Federation Government. |
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72–83
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Kruzhkova Svetlana - Рostgraduate Student, Institute of Legislation and Comparative Law under the Government of Russian Federation. Address: 34 Bol’shaya Cheryomushkinskaya Str., Moscow, 117218, Russian Federation. E-mail: svetlana-kruzhkova@yandex.ru.
The article reveals the features of legal relations between self-regulating organizations in development sphere and their members on the payment fees. The author analyzed the judicial acts in which the qualification is given on the payment fees. The paper showed that the overwhelming majority of courts classified a dispute about collecting fees as corporate for two reasons: 1) because it arises in the management of a non-profit partnership, 2) because the fee is paid according to the charter, and not on the economic contracts. The author does not consider the relations on the payment fees as corporate relations. In her opinion, corporate relations arise only during 1) the participation in organization or 2) the management of organization, regardless whether it is a commercial organization or not. The right to participate is the absolute right of the participant to express the will, which may have an impact on the will of corporation. The right to manage is the absolute corporation’s right, when expressing the will is based on a proper formed will, and entails the legal consequences. According to the author, absolute corporate rights are protected indirectly — through the restoration of rights in relative legal relations. In the author’s opinion the requirement of self-regulating organization for payment fees is not the subject of corporate dispute, because the breach of duty to pay fees does not violate the rights of organizations to form their will and express it in relations with third parties. In cases of collection of fees self-regulating organizations do not need additional legal protection provided to the participants of corporate disputes. The relations on the payment fees are compensatory and imply self-regulating organization’s duty to provide services to their members and members obligations to pay for services (in the form of fees). If the subject of obligation between self-regulating organization and their members is not defined, and execution of obligations has not been proved, the rights of self-regulating organization cannot be considered breached and its claim for payment fees shall not be satisfied. |
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84–100
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Zatsepin Alexander - Associate Professor, Russian Academy of Justice, Ural Branch (the Russian Federation Ministry of Justice), member of Russian Criminology Association, Head of the Department on Agent and Field work of the Russian Federation Internal Ministry (Sverdlovsk Region), Candidate of Juridical Sciences, Major of Police. Address: 15-5 Engels Str., Ekaterinburg, 620075, Russian Federation. E-mail: tp0507@ya.ru.
The Russian Federation Criminal Code specifies the elements of crimes reflecting every case and those reflecting certain cases of committing the same crime. In the former case the elements are represented under a standard form and the latter in a special one. However, the coexistence of special and general norms has a rationale if the special role influences the decision on criminal liability compared with the general norm. When the Russian Criminal Code deals with the elements which are instrumental to impose the liability for certain committed crimes, any such a case of which is involved in other cases, thus the common norm excludes what is included in the special one. The idea behind such exclusion/ inclusion is that it is necessary o differentiate (change, mitigate or increase) the punishment for a crime considering its public danger. As a result, the answer is given to the question why legislators prioritize the special norm though the common one could be an option as well. In this way, court may impose on the guilty another (enhanced or mitigated) punishment. Thus, the cases specified in common or specific parts do not compete. The article analyzes the collision of the norms in criminal law and the rules of classifying crimes if necessary. The arguments are given for the lawfulness to specify the collision in criminal law when classifying crimes. Among all the types of this collision, the author admits the existence of only two in criminal law, i.e. competition of common and special norms and the competition of part and parcel. Rules are given of qualifying crimes when rivaling common and special norms. Rules of qualifying are made up concerning part and parcel. A suggestion is expressed that practice of applying criminal law and its further development require improvements. |
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101–112
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Bikbulatov Timur - Postgraduate Student, Department of Criminal Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya str., Moscow, 101000, Russian Federation. E-mail: tbikbulatov@hse.ru.
The article attempts to cover the issues related to possible official misconduct of the members of RF legislative bodies in light of criminal law protection of insider information. Criminal liability for abuse of insider information was introduced under Federal law of July 27, 2010 no. 224. The adoption of the law has allowed introducing a number of brand new in Russian law concepts including article 185.6 to the Russian Federation Criminal Code. However, representatives of state bodies including legislative have access to the information considered to be insider. The aim of the paper is a system analysis of criminal legislation on insider information abuse, i.e. the issue of the absence of the representatives of legislative bodies among the subjects of crime under article 186.5 of the Russian Federation Criminal Code. To achieve the goal the following objectives should be solved: specify the types of subjects liable for abusing insider information, reveal the necessity and public danger of using insider information among officials and US congressmen. The object of the research is public relations arising due to the insider information circulation able to influence the prices for organized market (of securities, currency, goods) as well as due to the breach of the order of addressing such information. The theoretical provisions and practical suggestions may be applied to develop legislative initiatives, serve a basis for further research on criminal law protection of organized market (of securities, currency, goods). |
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113–123
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Fedotova Olga - Associate Professor, Department of Theory and History of State and Law, Russian Federation Ministry of Internal Affairs Institute in Voronezh, Candidate of Juridical Sciences. Address: 53 Patriotov Prospekt, Voronezh, 394065, Russian Federation. E-mail: Fedotova_vrn@yandex.ru.
This article features the author’s view of some issues arising in court and other law-enforcement bodies as to the administrative supervision of the persons released from places of imprisonment due to the enactment of the Federal law of 06.04.2011 no. 64-FZ On Administrative Supervision of the Persons Released from Places of Imprisonment. Considering the provisions of the specified law, lawyers should be guided by the rules of law of codified legal acts of different legal branches, which poses certain difficulties as to their application. Though legal literature devotes enough attention to the problem of administrative supervision of the persons released from places of imprisonment, it has become of special relevance with the development of the legislation and law-enforcement practice and requires urgent solution. Available academic works show historical, procedural, administrative law, criminal law aspects of administrative supervision. However, in connection with the implementation of legal provisions of the abovementioned law and other normative legal acts, explanations of the resolution of the Plenum of the RF Supreme Court as in the theory, and law-enforcement practice there are issues demanding permission for appropriate ensuring performance of the current legislation about administrative supervision and further improvement of theoretical provisions and rules of law in the sphere of administrative supervision of persons, released from places of imprisonment. |
Law in the modern world
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124–141
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Parish Matthew - English Barrister, Partner at the International Law Firm ‘Holman Fenwick Willan’, Lecturer at the University of Geneva (Switzerland). Address: 13-15 Cours de Rive, Geneva, 1204 Switzerland. E-mail: matthew.parish@hfw.com.
The growth in international law is not just a matter of an ever-increasing number of treaties. There has also been a considerable growth in what is known as “customary international law”, being the writings of scholars, principles of international law that grow out of the jurisprudence of international courts and tribunals, and the writings of international organizations themselves. Like all forms of law, international law is susceptible to interminable growth. Unlike other branches of law, it is not subject to any democratic check. It is driven by academics, pressure groups, and international organizations, international political institutions who have every interest in there being ever more international law with which to sustain them. The lingering concern is that the growth of international law absorbs money and time, without being developed in the context of a proper policy debate. International law is far more than the signature of treaties between states that see mutual advantage in cooperation. It purports to be a global order of moral principles regulating the conduct of states. Yet states have far more economic and military power than the institutions that administer international law, which calls into question the notion that international law can ever change the balance of power. A curious confluence of interests between states and international organizations means that international law can grow ever more, but persists in having remarkably little effect upon the underlying dynamics of international relations. |
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142–148
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Schlag Pierre - Distinguished Professor at the University of Colorado and Byron R. White Professor at the Law School of the University of Colorado (USA). Address: 406 Wolf Law Building 401 UCB, Boulder, CO 80309-0401, USA. E-mail: pierre.schlag@colorado.edu.
In the present article a particular aspect of constitutional interpretation will be considered. This aspect is called “creative” and involves retrieving the meaning of an object of interpretation. It is with regard to this particular aspect or moment of interpretation that creativity is often viewed as something to be avoided, to be shunned. If the task at hand is to “retrieve” some meaning, then the idea that this meaning can be created, in whole or in part, seems quite simply antithetical to the enterprise at hand. It suffices to note that many jurists and legal thinkers believe that interpretation as retrieval is an essential aspect of constitutional interpretation. Constitutional interpretation, is shaped by the legitimating need to anchor decisions in authority. That is very much part of the legitimation structure of constitutional law — important not just to the citizenry, but to judges and to legal academics. Over the practice and the idea of constitutional interpretation have become marked with the forms of this legitimation structure. The notion then that judges would be creative in their interpretations seems antithetical to both the practice and the idea of legal interpretation. The introduction of creativity in constitutional interpretation accordingly appears to deny the authority of authority. |
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149–161
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Zgaga Sabina - Assistant Professor, Faculty of Criminal Justice and Security, University of Maribor, PhD (Law). Address: 8 Kotnikova, Ljubljana, 1000, Slovenia. E-mail: sabina.zgaga@fvv.uni-mb.si.
The principle of actio libera in causa or the effect of a perpetrator’s voluntary intoxication on the existence of a criminal act is controversial in international criminal law. The present legislation, as contained in the Rome Statute, is a compromise between different legal systems. It allows the exclusion of a criminal act based on the fact that the perpetrator was involuntarily intoxicated and he or she cannot be ascribed guilt for the act of intoxication and the criminal act. In the Rome Statute the actio libera in causa principle has three elements, composed similarly of the insanity defence due to biological (intoxication), or psychological (the inability to control actions or understand their consequences), and the third negative condition (nonexistence of guilt for the criminal act). The Rome Statute does not deal with diminished mental capacity due to intoxication and also does not contain stipulations regarding the conditions of a generally diminished mental capacity. I propose that the International Criminal Court finds support in the above-mentioned three elements of the principle of actio libera in causa by acknowledging that a perpetrator’s capacity to understand or control his or her actions is partially diminished, not totally absent. |
Discussion club
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162–172
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Lutsenko Sergey - Leading Expert, Russian Federation President Control Department. Address: 8/5 Staraya Ploshchad, Moscow, 103132, Russian Federation. E-mail: scorp_ante@rambler.ru.
The present article considers the models of corporate governance. The purpose of the research is the choice and evaluation of priority model of corporate governance. Two models will be presented: the models of management prioritizing management and model prioritizing shareholders. In the model, prioritizing directorate, the latter is obliged to use the powers to capitalize the company value, and thus, be beneficial for the shareholders. The decision making power is vested to the company managers, not the shareholders. Thus, the management should follow the basic principles of corporate governance to fiduciary duties. The presented model is under the protection of the business judgment rule. The model of management primacy has disadvantages. It suggests the policy of certain closeness from shareholders. In turn, the situation is created of information asymmetry. The main problem in the Russian corporate practice is the situation when the company management does not act in the interests of shareholders and seeks to act in its own interest to the detriment of interests of the company. In turn, the model of shareholders primacy means the compromise of interests between the management and shareholders. An agreement is concluded between shareholders and management which specifies: the choice of economic strategy of the company, a participation range in the corporate governance of the company from shareholders, powers and responsibility of the parties, conditions of implementing some transactions, it determines the conditions concerning carrying out monitoring from shareholders. The model of business target-setting can be used at monitoring. The presented model allows performing the control of a management, and also to test their actions about integrity and rationale. The model of shareholders primacy has flaws. Permanent conflicts between shareholders (for example, abusing the right to be informed from minor shareholders) destabilize company economic activities. The presented work has an interdisciplinary character. That is the features of management as sciences, and corporate law are mentioned. Use of model of shareholders primacy can create a certain basis for creative cooperation between the company shareholders and management. |
Scientific life
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173–183
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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.
Teleshina Natalya - Associate Professor, Murom Institute (campus) of the Vladimir State University named after Alexander and Nikolay Stoletovs, Candidate of Juridical Sciences. Address: 87 Gorkiy Str., Vladimir, 600000, Russian Federation. E-mail: fedoseeva82@mail.ru.
The review covers the results of the 2nd International Academic Summer School on Cyber Law held by the academic university laboratory on information law of the HSE law Faculty. The event aimed to invite young specialists in ICT and law to discuss topical for law theory and practice issues of legal regulation of cyber space, in particular creating accessible software, spread of legal and illegal content on the Internet, providing information security, copyright protection, legal regulation of cloud technologies. The school was attended by the representatives of the leading academic centers of the UK, Belgium, France, Slovakia, India, Uzbekistan, and researchers and practitioners from Moscow, Saint Petersburg, Nizhniy Novgorod and other Russian cities and towns. The review shows the complex nature of cyber law, notes the acute topicality of research and practical understanding of the issues of IT and computer technologies, exposes the obstacles in the legal regulation of open accessed software, justifies the necessity of flexibility in regulating and protecting copyright in terms of spreading legal content on the Internet, describes Russian and foreign experience of tackling piracy, reveals the Russian experience of protecting personal data and the experience of the interaction between law enforcement agencies and IT companies in Russia. |
Book review
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184–190
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Nagornaya Irina - Junior Fellow, Institute of Scientific Information for Social Sciences, Russian Academy of Sciences. Address: 51/21 Nakhimovskiy Prospekt, Moscow, 117418, Russian Federation. E-mail: irnag@yandex.ru.
Тhe article presents a review of the monograph by Professor John Tobin studying the content of the right to health in international law and the legal obligations of states resulting from it. A special focus is made on the process of reaching consensus. |
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191–196
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Yusupov Vitaliy - Professor, Deputy Head of the Department of Administrative Law and Procedure, Speranskiy Faculty of Law at The Russian Presidential Academy of National Economy and Public Administration, Doctor of Juridical Sciences. Address: Prospekt Vernadskogo 82/1, 119571, Moscow, the Russian Federation. E-mail: information@rane.ru.
The review of the monograph by A.B. Panov deals with the majour aspects of the research concerning paramount issues arising in courts when legal persons are held liable. The review assesses objectively all the features of the monograph and conclusions are made. |
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