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Legal thought: history and contemporarity
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4–18
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The paper is devoted to research of the problems related to the development in Modern Age a uniquelegal phenomenon, i.e. legal fiction which was applied when other norms failed to regulate publicrelations to eliminate drawbacks and ambiguity. The nature of fiction is in an ad hoc statement to berecognized as valid and vice versa. This area has been drawing attention of both legal academics andpracticing lawyers since ancient times. Fictions applied in Ancient Roman law, in the Middle Ages.A special significance of legal fictions was noted by C.F. Savigny, an outstanding representative ofthe Historical School of Law, as he studied the set of fictions both as a special tool to regulate publicrelations and a consistent legal theory. In Modern Age, it was dubbed the theory of a legal person. Thepaper analyzes the ideas and conclusions of the scholar who has allowed modern researchers andpracticing lawyers to see the positive influence of the theory of fictions both on the development oflegislation, legal practice, legal education and experience a pivotal role and diversity and the relevanceof the phenomenon of fiction in the theory of law. Besides, the article has studied contrasting views ofthe theory of fictions by the representatives of different legal schools: Germanists, Romanists etc., whothough having opposed Savigny’s theory of legal fiction recognized somehow in their opinions the factthat the legal person is an illusory subject of law. The paper is also studying the attitudes of Russiancivilists to the fiction. The complex analysis of scientific views of the phenomenon of fiction in law haslet make up the idea of the process of the development of legal fiction in the epoch of Modern Age. |
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19–29
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The relevance of the topic is determined by the necessity in realizing current changes in legal science.The essence of the changes is explained by the fact that our perception of reality is based on differentscientific paradigms. The world is represented as a place full of contradictions and disorder, and weare looking for a framework that will fill it with sense. Many researchers are widely using concepts andmethods of synergetrics, which is usually referred to as the theory of chaos in American scientific literature.Synergetrics helps to study a certain aspect, connection of a legal phenomenon. Therefore, thisapproach can be applied not in any research, but only in those requiring studying certain aspects andfeatures of a phenomenon. The synergetic paradigm allows revealing such new characteristics of legalsystems as: openness, self-organization, nonlinearity in the development of social and legal phenomena.At the time when the harmonization of the Russian and international legal systems is a priority, thetransformations in the sphere of international relations are being taken into account. The knowledge oflegal entropy will give a chance not only to explain many features of self-organization, disorganizationand self-government of legal systems, but to develop the approaches, techniques allowing influencingthe choice of the alternative ways of their development. Laws of the chaos theory can help while studyingthe dynamics of the modern civilization processes. At the same time, the complexity of the environmentmeans a number of factors, influencing the work of various social organisms. This complexityalso includes variability of these factors. Nowadays, hardly any country does not depend on the globalinformational, financial, economic, technological systems. A similar situation influences economy, politicaldecisions and the system of legal regulation. At the same time there is an issue with the legitimacyof applying characteristics disorder, uncertainty, disorganization to the law, which, as a tool, provides thebalance in social relations, adding essential certainty. This question is quite legitimate since there is nocurrent solution in the modern legal science. |
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30–44
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In this article the author relying mainly on the systematic method tried to solve the problem of thestructure of the legal liability system. As a result, the author managed to formulate the concept of thestructure of functional system in general, and the concept of the structure of the legal liability system inparticular. The structure of the functional system was presented as a certain architecture of system createdunder the mechanism providing system communication between its structural elements (components) bymeans of the targeted useful result. This definition was projected on the definition of the structure of thelegal liability system. The structure of the legal liability system appeared as a certain architecture of thelegal liability system created under the mechanism providing system relations between the types of legalliability by means of the focused useful result formulated according to the state legal policy, for example,ensuring the level of offences corresponding to the optimum performance of the democratic constitutionalsocial state. Secondly, the author specified the features of functional system, having designed them onthe specific features of the structure of legal liability system. The basis of these specific features is madeby the central organizing influence of the focused useful result of both functional system, and legal liabilitysystem respectively. Thirdly, proceeding from the concept of functional system structure in general, andstructures of system of legal liability, in particular, and their specific features, the author specified structuralelements (components) of the legal liability system. Giving preference to a branch criterion, as structuralelements (components) of legal liability system, the following types of legal liability were specified: constitutional;criminal; administrative; civil legal; labor; financial; family and legal (as a forming type of legalliability); criminal and executive; constitutional and procedural (as a forming type of legal liability); criminalprocedure; civil and procedural. Besides, an obligatory element of structure of the legal liability system isthe focused useful result formulated according to the state legal policy — ensuring the level of offencescorresponding to the optimum performance of the democratic constitutional social state. |
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45–62
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The article touches the fundamental principles of shariat judiciary, modern practice of shariat courtsactivity in Muslim and Western countries as well as the perspectives of their establishment and functioningin Russia. The place which shariat courts occupied in the judicial system of the Muslim state duringMiddle Ages is shown. The author analyses in general terms the historical evolution of shariat justiceinstitutions. The differences between modern shariat courts and the same structures which existed inthe preceding historical periods are mentioned. The role played by modern shariat courts in the Muslimcountries depends on the place which Islamic Shariat occupies in their legal systems. Shariat model ofjudiciary was known in the Western countries from the Middle Ages. Nowadays shariat courts are stillfunctioning in some of them. There are two main forms of such courts. The first one embraces unofficialso called shariat courts as religious and social organizations while the second one consists of shariatcourts acting on legal basis and within official legislation. Arbitration tribunals in the UK which applysome concrete shariat norms resolving civil and family disputes are one of the examples of such form.In Russia, shariat institutions of dispute resolution were created in the 19th century. They existed in oneor another form in our country to the end of the 1920s. After that, they existed in fact during decades buttheir decisions did not have any legal force. From the 1990s, shariat courts began to emerge in Russiaas religious or civil structures. Russian legislation provides legal basis for establishing shariat institutionsof dispute resolution in the form of arbitration court or mediation structure. Such institutions canbe an alternative form opposing illegal shariat courts and they could assist securing legal fundamentalsand values within Russian Muslims community. |
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63–74
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The present article examines the majour achievements of an outstanding Russian-French philosopher,lawyer and sociologist Georges Gurvitch, as well as the principal ideas of his scientific conception. Theauthor focuses on the role Gurvitch played in the elaboration of the methodology for socio-legal studies,and the importance of this scientific project for contemporary sociological studies in law. The authordemonstrates the connecting link between the philosophical ideas of Gurvitch about law with the keytenets of Russian philosophy; on this basis the author concludes in favor of topicality of these ideas fromthe standpoint of the continued integration of Russian theoretical jurisprudence into the worldwide legal science. The main concepts and schemes of the sociology of law by Gurvitch are examined by the author,including the concepts of sociability and social law. These concepts are central to the legal conceptionof Gurvitch which sets out to overcome the shortages of the methodological individualism inherent tothe classical Western legal philosophy of Modernity with avoiding the extremities of communitarismwhich are typical for the legal philosophy of Antiquity and of the Oriental world-outlook. Anotherdirection of synthesis for Gurvitch was to reconcile the methodological principles of positivism and ofmetaphysics, which in the field of sociology are confronted as the positivistic methods of quantitativesociology and the abstract methods of social philosophy. Gurvitch sought to triumph over this conflictthrough postulating an ideal-realist method which allowed justification of integrative approach to law. |
Russian law: conditions, perspectives, commentaries
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75–89
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Demand of payment and the payment under bank guarantees is an integral part of legal relations relatedto securing obligations in Russia and under international practice. It is emphasized that the call onpayment occurs very seldom, but the possibility to obtain payment has an essential impact on securityfunction. The analysis of judicial practice as to securing obligations in Russia and abroad shows differenttrends and represents a variety of elements determining the possibility of payment. The possibility ofpayment is determined by the actions of beneficiary who should prepare the documents properly for thepayment. The payer on its behalf analyzes their content and studies the balance the secured and principalobligation. This is one of the key questions determining the performance of payment under bankguarantee. On the basis of Russian judicial practice, the author concluded that two opposite trends areemerging. In private law obligations, bank guarantees get more independent from secured obligation.Some courts even consider that bank guarantees secure a certain type of principal’s obligation, inparticular customs payments for a certain period independent of any specific agreement. In private law,judicial practice is opposite, i.e. judges require a strict correlation between guarantee obligations andsecured legal arrangement. In any case, the possibility to pay is determined by a correct reference tothe secured obligation. Afterwards, the paper examines relevant to payments elements such as form ofdemand, reasons to default etc. The circumstances affecting payments include: legal status of subjectclaiming the demand and the authorities of the party. The article examines the cases when during theguarantees the status changes and the authorities of the party are determined erroneously. Besides,the performance of payment depends on the documents confirming violation of the obligation by thedebtor. The problems examined in the paper include the issues of the ban on payment etc. |
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90–100
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The article is devoted to the analysis of the Federal Law of May 5, 2014 no 99 FZ “On Amendments tothe first part of Chapter 4 of the Russian Federation Civil Code and the Invalidation of certain provisionsof the Russian Federation legislative acts”, which introduces to RF Civil Code the norms providing for apossibility enabling to form a legal entity as a partnership of landowners. Such a partnership relates to noncommercial corporate organizations established landowners. The paper examines the definitions of thepartnership of landowners and the subject status of its members. A special attention is drawn to formingpartnership of landowners as to gardening, vegetable gardening and cottage economy. The author focusesin particular on the fact that the partnerships of real estate ownership may be set up only by the ownersof land plots but the possibility to establish such a legal entity by the citizens owning land plots due to otherrights is not provided. The author shows negative consequences of relating gardening, vegetable gardeningand cottage economy and similar non commercial partnerships to the partnerships of real estate ownersand justifies the reasons for inviability as to implementing these norms in some cases. The problemsrevealed are supported with the research of the historical development of the legislation on gardening,vegetable gardening and cottage economy under the applicable provisions of the RF land code, the lawof April 15 1998 no 66 FZ On Gardening and Cottage noncommercial Associations of Citizens and judicialpractice. The research and examination of the Soviet legislation and applicable federal laws allowedmaking the conclusion that the alterations to RF Civil Code do not cover all the needs of the associationsintegrating garden and cottage owners. The results of the reform of the legislation on non-commercial organizationsdo not ensure the implementation of the objects specified in the Conception of civil legislationprepared under RF President’s decree of July 18, 2008 no 1108 On Improving RF Civil Code. |
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101–111
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The paper studies the problems of applying article 234 of RF Labor Code to the liability of employer forillegal deprivation of work. The author specifies the majour features of illegal deprivation of the right towork for an employee and points to the typical controversial situations in applying the norms. Evaluationof liability cases against the employer for deprivation of work historically and the influence of the currentjudicial practice in courts of general jurisdiction and in RF higher judicial instances. As to the cases ofillegal deprivation of work, the article studies the degree of illegality, possibility to apply article 234 of RFLabour Code to the cases of depriving the right to work by violating the majour employee’s guarantees.Besides, the paper examines the authorities of state bodies and the bodies entitled to recognize the factof such deprivation as illegal. The paper shows that it is inappropriate for employer to restore employeesvoluntarily by cancelling the dismissal orders, changing the cause of dismissal or transferring the dateof dismissal. Hence, the employer may not serve as a jurisdictional body. The materials of the currentjudicial practice studied by the author reflect the specifics of applying article 234 of RF Labour Code bygeneral jurisdiction courts, specifying the majour controversies some of which served as a basis for thedecisions of RF Supreme Court Plenum. To avoid the cases of abusing the right of the employee as tothe free circulation of work record books in the RF, the author proposes to arrange the federal register ofwork record books in the RF. The article defines illegal deprivation of work for employee. |
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112–123
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The article is devoted to the licensing system in telecommunication, the analysis of the existing bansand restrictions, red tape and means to reduce it. The efficiency of the branch depends much fromthe methods of state regulation and the measures of the licensing system. The article studies legalgrounds of the communication activity providing for a complex of authorizing measures including licensing,registration, allocation of the bands of radiofrequency spectrum, distribution and use of numerationresources. The licensing measures are divided into two blocks, i.e. the measures determining theconditions for the communication providers and the measures setting the requirements to the appliedequipment and constructions (fixtures, cables, radio electronic means and high frequency devices).The problems of licensing communication services are determined by various reasons including a largenumber of licensed activities.Communications provider has to get a dozen of licenses to perform its activity. Hence, it seems reasonableto borrow the experience of other countries where legislations provide for the opportunity to obtaina single license. However, it is necessary to amend the federal law On Connection and the legislation onlicensing. Besides, the opposite problem exists, that is larger sets of communication services subject tolicensing. This circumstance is good for the major players on the telecommunication market but smallerproviders have to comply with additional requirements. Attention is drawn to one of the acute issues asto acquiring the license to the communication services — limited capacity of radio frequency spectrum,thus the assignment of radio frequencies may become a serious administrative barrier. |
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124–135
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The paper examines the legal nature of specialized non-state arbitration centres which deal with aspecial type of disputes related to domain names under the UDRP procedure (Uniform Domain NameDispute Resolution Policy). The UDPR is a unified strategy of resolving domain disputes which wasdeveloped by ICANN — an organization distributing names and numbers. The article compares andcontrasts specialized non-state arbitration centres under the UDPR and commercial arbitration. Theauthor stresses that the common feature in the functions of specialized centres and the internationalсommercial arbitration is non-state functioning, private law disputes, applying non-state sources of law(lex mercatoria and lex informatica) and making agreements providing for the jurisdiction of organizations.However, these characteristics of functioning of specialized arbitration centres and the possibilityto transfer the disputes to a national court and non-compensatory protective means allow classifyingsuch centres not to mediatory but commercial arbitrations but to extrajudicial alternative types of disputeresolution. The article presents a comparative analysis of the legal nature of agreement under whichdisputes are transferred to specialized arbitration centres and arbitration agreement the legal nature ofwhich is detailed within contractual, procedural and mixed theories. The article stresses that the clausein an agreement on registering a domain name under which the owner (administrator) of the domainname agrees to consider a dispute under UDPR rules is not completely consistent with the nature ofarbitration agreement as it does not exclude the jurisdiction of state court for such disputes which maybe within the competence of arbitration court. This condition contradicts the nature of arbitration trialcharacterized with final opinion and independence of courts which are part of the state judicial system. |
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136–145
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The position of criminal law as to using and spreading harmful software (information) (article 273of RF Criminal Code) is a requisite of protecting one of the key principles of regulating information.A specific legislation defines this principle as a freedom of search, using, obtaining, transferring, makingand spreading information by any legal means. Facts show that intended balanced and based on theconsent understanding of the meaning of the ban under article 273 of RF Criminal Code and other acts(articles 141, 171.2, 185.3, 242, 272 thereof) if they are committed by intruding into the operation ofcomputer or information telecommunication nets depends on the understanding of computer informationas the element of the crime in question. This interpretation goes beyond the competence of an expert incriminal law. Thus, the examination of computer information is relevant not only to linguistic purism addedto the research of computer crimes. This issue should get a comprehensive study in legal literature andfrom different angles. The paper shows that the conceptual characteristics of computer information in RFCriminal Code is constantly expanding. First, it is defined commonly as data (information) provided aselectric signals available for electronic devices including the transmission by data link channels. Under theobtained empirical material, this definition of computer information is not a corollary from the argument forthe opinions and decisions of courts. Its role is different as it does not identify computer information withthe means of storing, processing and transferring, find it in various technical devices such as cashpoints,receivers etc. The research shows that in certain articles of the Criminal Code, computer informationincludes the provisions as to special characteristics (positive signs) and reasons why some informationcannot be considered as a subject of crime in question (negative signs). Thus, secondly, computerinformation as an element of a certain crime has a number of individual signs. Article 273 of RF CriminalCode represent it as 1) a software or other information, b)which is intended for eliminating, blocking,modifying, copying computer information or neutralizing the means of its protection, c) when a necessary sanction is missing. Some of the abovementioned signs have not had proper examination. In particular,the sign that computer information targets the neutralization of the protection means. In the conditionsof common usage of relevant technological instruments, the introduction of this sign has broadened thecoverage of article 273 of RF Criminal Code and led to its primitive interpretation. |
Law in the modern world
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146–151
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In the present article the author considers the issues connected with globalization and structural changesin the contemporary societies. In author’s opinion, development of legal regulation encompasses not onlythe practical and theoretical argumentation in the law. It also includes the informative and communicativeperspectives of our analytical and conceptual legal thinking and of our legal world-outlook which is formedaccordingly to the social world of law. The author stresses that there are continued processes of genesisof autonomous, socially out-differentiated spheres for activities and of normative programs and criteria ofjuridical rationalization of human emotions and actions. In the light of such ideas the general theory of lawcan obtain its justification from the standpoint of structuralism. This theory cannot be identified or confusedwith the classical theory of division of powers and with the functionalist division of competences of the stateorgans in the way this division is formulated in the constitutional law. The author insists that there is an ongoingprocess of informative, communicative and theoretical comprehension of legal rules and of modalitiesof their validity. Such rules shall be orientated toward constantly renewed tasks and values which are legallyprotected in order to enable individuals and collectivities to choose and to adopt socially adequate, legallycorrect decisions and to develop correct processes, procedures and ways of resolutions of problems. Theseprocesses make the general theory of law to revise and to re-define the current ideas and conceptions. |
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152–159
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Undoubtedly, BRICS have considerable influence in the world. The leaders of BRICS countries decided to create new financial and economic infrastructure and, hence, documents and resolutions adopted by BRICS countries and relevant G20 documents can be considered to be of great importance. A detailed analysis of these documents enables us to trace the turning points in the development of BRICS countries and recognize key factors, which further influence effective cooperation and collaboration.In this regard, it seems important to study the role of BRICS in the international arena, analyzing the importance of joint BRICS’ declarations on the collaboration and cooperation within BRICS, the problems of reforming international monetary and financial institutions, and establishing new financial and economic infrastructure establishment.Certainly, the establishment of new financial and economic infrastructure is extremely complicated. In this article the author shows that BRICS countries decided that it was necessary not only to reform existing institutions, but also to establish new ones, such as the BRICS Development Bank. |
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160–170
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This article is devoted to the analysis of the constitutional status of the President of Brazil, as guaranteed by the Brazilian constitution, vis-à-vis the statuses of heads of states of other BRICS countries. Although the president’s position is outlined in the national constitution, it takes into account the country’s federative structure: the president (Presidente da República) acts as the representative of the union internally and represents Brazil abroad. The presidential term of four years is one of the shortest when compared to other BRICS countries. The president is elected directly by the Brazilian people. Direct election is more typical in countries with presidential governments, where the direct mandate provides a higher degree of legitimacy to the executive office. The office term can end early for three reasons: 1) conviction for the commitment of crimes de responsabilidade (crimes of malversation) by resolution of the Federal Senate, or by sentence of the Federal Supreme Court on commitment of infrações comuns (common criminal offenses); 2) in the event of death, resignation, loss to the right to vote or loss of citizenship; 3) resolution of the National Congress to declare the office vacant. In Brazil, as well as in India and South Africa, the president is the country’s chief executive. The president’s powers are classified into three categories: deriving from his/her role as the head of a state, the head of government, or the head of federal administration. The President of Brazil, like the president of Russia, has the strongest position of authority in the higher bodies of the governmental system. |
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171–178
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In this study, the author offers a very general review of banking legislation in Russia. The author discusses the main statutory acts which regulate banking activity and the Central Bank of the Russian Federation (Bank of Russia). The author describes the Bank of Russia’s functions. He concludes that, in modern market conditions, it is extremely important to develop civil regulation and reduce administrative regulation; however, he finds that, unfortunately, the Bank of Russia is still subject to administrative management. Considering the nature of the relationships between the Bank of Russia and private credit organizations, the author insists on the need for a partnership, forged on principles of dispositive regulation, between them. More generally, this work considers the problems of domestic financial regulation through the theoretical prism of free banking. Current Russian banking legislation only focuses on the creation of the best mechanism for the organization of credit and financial relationships. The author considers not only the requirements for state financial policy, but also the interests of private credit organizations, which serve as the engine of the financial market and strengthen the banking system as a whole. Until recently, many aspects of the Russian banking system have been a compromise between the old and new conceptions of the economy. For this reason, the upholding of free market ideas is essential in order to develop banking legal theory. The author criticizes the emerging tendency to reduce the role of liberal financial institutions, such as the increasing role of the Bank of Russia as a mega-regulator. Considering this, the author recommends the application of immediate counteractions against the above-described tendency and supports the strengthening of the independence of credit organizations. He emphasizes that this is the only approach to fully develop the existing banking system. |
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179–192
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The article describes the Institute of Public Service of the State Mengjiang which in the 1930s and1940s claimed to leadership in the world of Mongolian peoples. The article discloses institutional frameworkof public service, procedures for filling positions, the basic requirements, rights and obligationsapplicable to public servants, measures of rewards and punishments. The problems related to the legalregulation of the civil service, the role and place of the Japanese side in the organization of the civilservice. Mengjiang was formed with the participation of the Kwantung Army Command and consideredby Japan as a springboard for an attack on the USSR. The state apparatus was formed. It included thepublic authorities at the national level and the level of administrative and territorial units, which formedthe basis of Mengjiang. This political establishment’s phenomenon is poorly studied in the scientificliterature. Nevertheless, the highest public office became the subject of separate research works, asopposed to the issues of civil service. This article fills in this gap. On the basis of published documents(regulations, statistical and accounting data, reports, memoirs of participants of events, as well as dataobtained by modern researchers) it became possible to manage building a detailed picture of the appointmentto public office and the implementation of their duties. On the question of the formation of thestate apparatus as on the top-level and at the average positions, the occupying forces’ approach wascareful. Despite the lack of a single legal act regulating this field of public relations, local acts that weretaken at different times in the form of regulations, decrees and other documents regulated most aspectsin great detail. The status of civil servant gave a number of privileges and guarantees, but officials werenot equal to it — the priority was given to the Japan natives. Sectoral regulation of certain issues wasactively practiced, including the requirements for the candidate, the promotion etc. In August 1945, themajority of public servants have lost their jobs and privileges, some have been prosecuted for theircooperation with the Japanese invaders, and the state apparatus, as does Mengjiang, was eliminated. |
Discussion club
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193–207
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The article proposes a personal approach to the formation in Russian legislation a closed system oflimiting access to information that is a system with several types of secrets. Under the presented conception,the secrets are classified by the type of their formation. Primary secrets directly related to theactivity of a subject and ensure his right to the restricted access to the information. Such secrets dealwith the information processed by the subject during his activity. Derived secrets relate to the obligationof a subject as to the protection of information of another subject and communicated on a secret basis(regime of confidentiality). The article specifies the elements of legal regime for each type of secretsincluding subjective elements and the elements of legal regulators. The article proposes the principlesof transforming the regimes for secrets when transmitting information. It studies the regimes of confidentialityacceptable to protect personal data (commercial secret, professional secret, state secret,business secret) and makes a conclusion on the necessity to use these regimes instead of establishingan independent regime of the personal data protection. The author examines certain problems of protectingpersonal data in the regime of commercial secret, related to the RF Labour Code and the Federallaws On Commercial Secret and On Personal Data. The paper also formulates the conditions of achievingthe balance of interests of the subject of personal data (employee) and the operator (employer).A question is studied as to the balance of responsibility of norms for disclosing different types of secrets.It is noted that the balance of sanctions is inconsistent. In particular, maximum sanctions for disclosingcommercial or state secrets are equal, the balance has not been arranged properly as to the criminal liabilityfor breaching privacy (breaching the secret of correspondence, disclosing the secret of adoption),sanctions vary too much in relation to the disclosure of professional secrets. All these aspects requirethe further development of liability measures within the system of secrets. |
Book review
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208–215
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The review contains opinion about monograph devoted to formation and contemporary conditions offederal relations in Canada. Author accesses and comments Professor Danilov s look at Canadianfederalism in comparison with other federal states. Positive evaluation of the book is presented. |
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