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Legal thought: history and contemporarity
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4–30
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The article is devoted to analysis of the forms of interaction between Shariat and legislation in action aswell as compatibility of Shariat with contemporary Russian law in general. The author touches severalreasons of increasing interest to the role which Shariat plays in legal development of Russia. Amongthese reasons he pays attention to the up-going process of renaissance of Islam, social and political activityof Muslim communities outside the regions where Islam is traditionally spread, the existing threatof Islamic extremism, increasing influence of Shariat upon political and legal development of the Muslimworld. Also there are numerous conflicts linked with Muslim minorities in the West which contribute a lotto the interest paid to Shariat.Several modes of referring to Shariat can be differentiated as far as its correlations with positive legislationare concerned. One of them manifests itself in the actions of Muslim separatists and extremists whodirectly oppose Shariat to the Russian law. Another mode provides for including of Shariat norms in theofficial legislation. There is one more form of the above mentioned correlation which is related with theaction of Shariat as alternative regulator without opposing it to the official state law.There is no one definite justification for the realization of Shariat provisions. For instance Muslim radicalsrefer only to religious arguments to fulfil their plans aiming at replacing official legislation by Shariat.Some Rissian scientists call for legalizing of Shariat norms but they do not put down any legal groundsor justification for their proposals. Russian jurists have different approaches to this issue. Some authorselaborate general conceptions which key point is legal recognition of local traditions and customs includingShariat norms. As a rule these theories concern Russian regions of Northern Caucasus.The author examines several patterns of possible correlation between Shariat and state legislation. Thefirst one is represented by the direct inclusion of Shariat norms into the legislation. The Russian law providesfor such implementation under some conditions. The leading one is choosing among Shariat provisionsthose which meet criteria of legal norm and can be considered as Islamic law in proper sense. Theother form of the correlation mentioned above manifests itself in legal acts which refer to the historical andlocal traditions. It means in indirect form the possibility of implementation of some Shariat norms. Besidesthat Shariat provisions can be used for solving issues which are provided for by dispositive norms of statelegislation. Generally the author gives positive answer to the question put in the title of the article. |
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31–54
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The article is devoted to the role and significance of legal subterfuges in financial instruments applied inthe Islamic banking system (hereafter IBS). The paper studies the concept of subterfuges, exemplifiestheir application and an outline of Islamic legal conceptions which existed in the Middle Ages as certaindeals to bypass Quran Prohibition of riba, which was originally understood as spare money (interest),resulting from loan operations. When the 1970s and 80s a campaign was launched to Islamizeknowledge enveloping such spheres as economics, the subterfuges which appeared in the MiddleAges were understood as forms for modern Islamic financial instruments. Many of them were the meansto bypass riba as a loan interest forbidden in Islam. The paper analyzes the subterfuges to bypassthe prohibition on interest loan riba in the current operations of Islamic banking system. The papershows the changed role of Islamic law in finances which is not law regulating IBF operations and thenorms are recognized no more as legally binding but are ethical maxims of a sort lacking legal content.Moreover, the reference in a financial contract to Islamic law (sharia) may be only considered as shariarisk increasing the voidability of the deal in court. The article concludes that almost all the consideredIslamic financial instruments and schemes are based on such subterfuges. It is evident that in theconditions of high competition with conventional banks in Islamic countries especially in the area offinancial finances, this Islamic banking model without resorting to the subterfuges to bypass the ban onloan interest riba is becoming non competitive. |
Russian law: conditions, perspectives, commentaries
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55–85
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The article deals with the review of the Federal Law of June 23, 2014 No 171-FZ On Making Alterationsto the Russian Federation Land Code and other Russian Federation Legislative Acts, which isto be enacted March 1, 2015. The authors have carried out a detailed analysis of significant changesin the Russian Federation Land Code, the Russian Federation Civil Code and other legislative acts.These changes target a number of tasks set by the Russian Federation President to harmonize theLand Code with the Russian Federation Civil Code and the legislation on urban development, increasethe transparency of the procedures as to land relations, exclude collisions between federal laws andclauses causing corruption. The authors have focused on the new order of arranging and providing landplots which are in state or municipal ownership, new institutions of land legislation and transitional rulesprovided by the Federal Law of June 23, 2014 No 171-FZ On Making Alterations to the Russian FederationLand Code and other Russian Federation Legislative Acts, stress legal features of norms pivotalto arrange enforcing and court practice. The authors express the opinion on the consequences of thealterations both for public authorities, legal entities and natural persons, as the land resources will beeasier to get into possession for the country’s population including benefit-entitled citizens and investors.The paper also justifies the causes for the key alterations, studies case practice showing somecontroversial issues which the new legislative norms may facilitate. The authors specify norms and thelaws of the Russian Federation subjects which may be adopted to implement the Federal Law of June23, 2014 No 171-FZ On Making Alterations to the Russian Federation Land Code and other RussianFederation Legislative Acts. |
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86–101
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The paper studies the issues of defining collective labour disputes, conciliation procedure of consideringand resolving them. To study the concept RF Labour Code and labour law doctrine have been applied.The paper attempts to make up new approaches to defining the concept of collective labour disputeswhich determines consistently the problems in applying RF labour law norms, other normative legal actswhich determines the problems in applying RF labour code norms other legal acts containing labourlaw norms, collective agreements, social and partner agreements, local normative acts. The aim of the research is to improve the concept of collective labour disputes, conciliation procedures, their study andresolving (by a conciliation commission incvolving a mediator or in a labour arbitration), participation ofstate bodies to settle collective labour disputes. The paper solves the following tasks: 1)characteristicfeatures of collective labour disputes and disagreements, 2) the definition of collective labour disputesand their classification, 3) the paper gives a systematic analysis of the employers, trade unions and theirassociations, settlement procedures to consider them and resolve Procedures to consider and resolvethem (by a conciliation commission involving a mediator and or in labour arbitration court), participationof state bodies settle collective labour disputes (by a settlement commission involving a mediator or inlabour arbitration court), participation of state bodies to settle collective labor disputes; 4) suggestionshave been made to improve them for article 61 of RF Labour code. The novelty of the research is thaton the basis of theoretical patterns and provisions of RF Constitution, conventions and recommendationsof the International Labour Organization (ILO), decisions of the Freedom of Association Committeeof the ILO Governing Body, RF Labour Code fundamental problems and issues have been studied toconsider and settle collective labour disputes in the current social and economic conditions. The theoreticalprinciples and conclusions contribute to the development of conceptual model to consider andsettle collective labour disputes, serve a basis for other research in this area, may be applied for furtherimprovement of the RF Labour Code and other normative cts with the elements of labour law norms. |
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102–120
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The paper studies one of the most topical issues arousing in international private law, i.e. internationalabduction of children by one of the parents. The first part of the article analyzes the majour provisions of the Hague Convention of 25 October 1980 on the civil law aspects of international Child Abduction (hereafterConvention); reveals the majour concepts of the Convention (abduction, rights of custody, right toaccess, Central body), specifies the conditions under which a child transferred to another country maybe returned to the country of his regular residence and the cases when returning a child is impossible.The second part of the article studies the issues of applying the Convention in the EU, in particular twolegal regimes established for the interaction between EU countries by the EU Council of November 272003 no 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonialmatters and the matters of parental responsibility which operates in the EU and other countries(case study of Russia). Case practice is studied as to the decisions of the European Court of HumanRights on abducting children. The case of Irina Belen’kaya shows the issues which used to arise beforeRussia joined the Convention and caused by the impossibility to enforce a foreign judicial decision inRussia and in France and the obstacles for an effective protection of children’s interests, shows the roleof the Central body which is the Ministry of Education and Science. Some circumstances have beenspecified as they hurdle the efficient implementation of the Convention in Russia, i.e. inconsistencies ofsome provisions of the Russian legislation with Convention (differences in the concepts of abduction,custody, lack of the definition in the Convention for the place to ordinary residence. Attention has beendrawn to recent changes after Russia has joined the Convention on the Civil Aspects of InternationalChild Abduction (Federal law of May 5, 2014 No 126-FZ). |
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121–135
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The article shows that the drivers for integration development of Europe in the 20th century were fourfundamental economic freedoms of the movement of goods, people, capital and services. In the EUmodern global information society, this list of the fundamental political and economic freedoms of previousstages of historical and integration development got the fifth freedom, i.e. the free movement ofknowledge. In this regard, the author suggests and motivates the necessity to develop a relevant informationlaw doctrinal and legislative novations to meet the challenge of global information society. In particular,the author suggests that academics, professionals and officials involved in creating the startingnormative legal base of practical activity of the Eurasian Economic Union (EEU) which launches January1 2015 in Belarus, Russia and Kazakhstan should consider the problem of eliminating obstacles inspreading information and knowledge within the EEU. The author outlines the majour challenges due tothe development of the fifth freedom and makes up some solutions. In particular, an attempt has beenmade to specify the content of majour parameters of the current regulatory influence on the processesof exploring one of the main subjects of the fifth freedom i.e. libraries and the electronic format of itscatalogues and the ways to improve the public access to them. Thus, it is crucial to realize the importanceand subtlety of these problems and seek to solve them by making a relevant balance betweennecessary and sufficient free movement of information and knowledge and a relevant protection of otherrights and legal interests of persons, society and state. Appropriate to the time and society solution willbe required for the EEU and its member states to become competitive in the 21st century, i.e. the centuryof information and knowledge. |
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136–143
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The article deals with the issues of protecting underwater cultural heritage in the Russian Federation.The subject-matter of the research are the factors affecting the preservation of the objects of underwatercultural heritage in Russia and the national legislation on protecting cultural heritage. The paper aimsto present the system analysis of the issues of Russian Federation underwater cultural heritage. Thearticle studies the reasons for arising the issues in this area, scrutinizes the factors affecting badly theobjects of underwater cultural heritage, in particular legal and non legal factors. The author shows thelack of terminological consistency in Russian legislation for underwater cultural heritage and individualapproach to register and catalogue them. Conclusions have been made that Russian Federation legalissues may cause damage or loss of an object of underwater cultural heritage as a valuable sourceof knowledge on historical and cultural past of the country. The article analyzes the topical nationallegislation on protecting underwater cultural heritage as well as normative acts 73-FZ On the objectsof underwater cultural heritage (monuments of history and culture) of the Russian Federation Peoplesof 2002, Russian Federation Criminal Code. A case from the practice of discovering and registration ofsunk vessels and underwater artifacts in the water area of the Gulf of Finland has been shown. Hence,a conclusion has been made on the urgency to reconsider and amend Russian legislation in the areaof cultural heritage. The author makes recommendations to improve normative acts to protect culturalheritage and managing underwater cultural heritage. |
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144–158
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The author of the paper analyzes corporate relations in terms of the criminal law protection and the areaof the prohibitions imposed by criminal law. Attention is paid to dynamism of social life and the emergenceof a new type of public relations more than two decades ago, that is a new group of public relationsrequiring a detailed academic understanding. Due to the priority of compensating legislation forcriminal law, normative and doctrinal characteristics of relations formed inside a corporation are given.The author analyzes the views on the definitions of the concept and legal nature of corporate relationsby modern legal academics. The paper notes the lack of unanimity to their understanding. The papergives a variety of views in the modern legal literature on the concept and legal nature of the group ofpublic relations which may be attributed to the following conceptions: 1) theory of unanimous legal relation;2) theory of organizational and property relations; 3) theory of any legal relations between a legalentity and its participant; 4) theory of secondary rights; 5) theory of corporate legal capacity; 6) theoryof absolute relations. The paper notes the legal broadening of the concept of civil law since March 1,2013 at the expense of including corporate relations. The author outlines their legal interpretation asthe relations of participation in corporation and managing it. It argues that despite lawyers specify twosubgroups of corporate relations, relations of participation in a corporation are major and relations ofmanagement are secondary. A special analysis has been made for article two of the Russian FederationCivil Code in terms of including the group of relations to the object of criminal law protection. A conclusionhas been made as to the legality of spreading criminal law means to protect corporate rights andinterests. The paper has been shown the necessity to protect them by criminal law like those of branchmeans of protection. The article specifies various cause and effect relations justifying the relevance toset up practically appropriate prohibitions imposed by criminal law in the area of corporate relations. Thecombination of various social, economic and legal reasons may account for it. |
Law in the modern world
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159–171
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The article is devoted to the analysis of complicated and interesting aspects of conducting collective negotiationson concluding tariff contracts and production agreements in the Federal Republic of Germany.The author scrutinizes the principle of freedom of association and the principle of tariff autonomy whichserve as a basis for the legal regulation of collective negotiations. The author does not reduce to theGerman legislation regulating collective negotiations but compares them to the international standardsof labour law and EU law, with an emphasis on Council Directive 94/45 On the Establishment of a EuropeanWorks Council. The paper touches upon specific features of the special status of the members ofthe employers’ association. Many German associations have stipulated in their constituent documentsthat their members are entitled to a special status and the tariff contracts made by the employers’ associationdo not spread to it but the employers’ association provides the same services as to its membersand the organization with a special status is to pay member fees. The author does not reveal the featuresof the special status of the member of the employers’ associations but points to the opinion of theFederal Labour Code which studied the case as to the legality of including new similar provisions to thecharters of employers’ associations. The author studies the trends and perspectives in the developmentof the system of the regulation of labour relations in regulating labour relations in Germany and accompanyingdisputes. On the one hand, the decentralization of collective contracts result in the issueshaving been regulated by tariff agreements have become the subject matter of industrial agreementsconcluded at the lever of a company. However, as EU law increases its influence on the German legalsystem and a large number of transnational corporations emerge, industrial agreements are concludedregulating the working conditions in both Germany and other EU countries. The article may be of interestfor specialists an a wide range of readers interested in social partnership and German labour law. |
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172–182
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This article presents the results of a comparative legal analysis of gas industry regulation in BRICS countries.In addition to the description of gas production in these states, the author provides a general overviewof the sources of regulatory environment in the gas sector and discusses the co-relation issues betweeninternational and national laws. The nature of legal regulation of natural gas production, transportation,distribution and trade forms a significant part of this research. The author’s conclusions derive from thedescription of legal constraints within natural gas export and import. Firstly, all BRICS countries need todevelop their respective gas industries. Some BRICS countries, like Brazil, South Africa, and, to someextent, India) are radically reforming their legal systems, while others are trying to solve their problems byopening up to government and private investments within the existing regulatory system (China and Russia).Secondly, all BRICS countries currently have high level of monopolization in production, transportation,distribution and trading (to varying degrees). However, only in Russia monopoly is legally enshrined in thearea of gas export. Thirdly, it appears that all BRICS governments understand the necessity to create acompetitive market environment and are taking appropriate actions. Fourthly, all BRICS countries have corruptionproblems, as well as problems with government failures; therefore, the effect of the reforms in theshort-run will depend greatly on the political will of each respective government and to a lesser degree onthe quality of legal regulation. |
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183–189
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BRICS is one of the most significant geopolitical events of the early XXI century. It plays a significant andever-growing role in world politics and international relations. BRICS member countries have decided to useconjoint approaches to solve the most important problems in the development of medium-sized enterprisesand competition policy.For this reason this article is devoted to the questions relevant to the notions “unfair competition,”“competition”and its correlation, distinguish with the contiguous notions. In the literature are deduced the different characteristicsof unfair competition such as acts aiming to obtain advantages through entrepreneurial activity,incursion and potential losses for entities — (competitors), arising as a result of said acts.It is set out special features of the legal regulation the competition and the struggle against unfair competitionby the laws of the Russian Federation. For instance, it includes some provisions common for bothinstitutions of protection against unfair competition and protection against monopoly activity.It also describes different patterns of the competition law, for example, American and European, which aretraditionally distinguished in the scientific legal literature. Russian lawmakers on the whole have adoptedthe European system of antitrust regulation (the restriction and control of monopoly activity). However, theRussian legal regulatory system against unfair competition has its specific features. In particular, it is basedon the plurality of resources that have different legal validity and are linked to different branches of lawMoreover, this article is considered the problems of protection against acts of unfair competition are widelycovered in the legal practice, classification of legal protection forms (factual and juridical, jurisdictional andnot jurisdictional, public and private, etc.). |
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190–197
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The human right to health protection implies an overall constitutional duty of the state to assist the enforcementand ensuring of this right by means of medical care provision and other “positive” activities: protection and suppressionof attempts to interfere and entrench on the right; control of healthcare by public authorities; significantinterference into healthcare delivery. Reasoning from this fact guarantees of enforcement of the right to healthprotection in the Russian Federation can be divided into two main groups: 1) medical guarantees related toavailability and work of medical organizations, and 2) state guarantees related to the creation of conditionsunder which human health and right to health protection will be ensured and protected to the maximum extent.Therefore, the real effect of guarantees of the right to health protection in Russia is far from ideal. The Russianlaw-makers try to approximate the domestic statutory acts to the international legal standards in this sphere.However, these actions are not efficient enough. The new incitement for the improvement of the situation in thisarea can be the extension of international cooperation within BRICS allowing to work out сo-decisions about theproblems of improvement of quality and availability of medical care; improvement of quality of medical education;increase of healthcare management control of the propriety of the delivery of the guaranteed scope of freemedical care; liquidation of corrupt practices in the system of healthcare management. |
Scientific life
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198–208
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This article analyzes the event of the International legal philosophy symposium “Rationality in law”.The author’s attention is focused on the description of the main points of the presentations made atthe symposium. As to M. Antonov’s presentation, the author stresses the importance of analysis ofthe arguments in favor of unity of law that have been postulated in the history of legal philosophy andwhich have been often based on different versions of holism. L. Clerico stressed that the conceptionof weighing principles elaborated by the contemporary German philosopher Robert Alexy is applicablein constitutional law. The presentation of P. Chiassoni specified three kinds of truth: formal truth ascorrespondence of reasoning to laws of logic; instrumental truth as applicability of means for obtainingof certain goals; essential truth as selection of highest ethical values and relations between them. Thereport of R. Caracciolo was devoted to the problem of correlation between the binding force of norms andthe persuasive force of reasons for action. J. Moreso analyzed the applicability of classical logic in theworld of law and how laws of logic work in legal order. M. Farrell proposed an interesting reconstructionof the legal philosophy of Jeremy Bentham in the light of his project of codification and restructuring thejudicial system of England. J. Rodriguez in his presentation compared the differences between the logicof norms and the logic of normative propositions. E. Bulygin concentrated his attention on comparativeanalysis of analytical philosophy of law and of metaphysical conceptions of rationality in law. In hispresentation C. Carcova defended the postulates of the school of critical legal studies. R. Vigo stressedthe importance of natural law and legal argumentation in philosophy of law. In his presentation, J. Cerdioattempted to differentiate law from morality through the lenses of Kantian division between theoreticalreason and practical reason. R. Gibourg described and compared the relative force of magical andrational principles in law. In the presentation of E. Lisanuyk three images of deontic logic in law were |
Book review
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209–213
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The review evaluates the monograph by M.V. Antonov devoted to the analysis of sociological and legalideas of G. Gurwich. A special focus is made on the issues of ontology and axiology of law. |
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214–218
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The review studies the textbook by A.S. Selivanovskiy devoted to the legal regulation of securitiesmarket. The paper examines the structure of the textbook, chapters on derivative financial instruments,sham practice in securities market. General assessment of the work under review has been given. |
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