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Legal thought: history and contemporarity
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4–17
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The subject matter of this article is the process of forming legal system of international information security and information security within the framework of the RF legislation. The relevance of this topicis due to the fast development of the global information space and the Information system development in all spheres of society, as well as the challenging political situation in the world, which contributes to the emergence of challenges and threats to information security. The steady increase in such threats is the need to build an effective system of international information security, improvement of national legislation in this field. In this context, the authors examine the trends in the development of legislation, public policy inthe field of information security, and identify the most topical problems and issues of scientific research.The purpose of this research is shaping the system of international information security and modernization of Russian law in the field of information security, and making up a number of provisions to facilitate the implementation of public policy of the Russian Federation in the field of information security. The methodological basis of scientific methods of knowledge include: deductive, comparative legal, formallegaltechniques and methods of system analysis. One of the main conclusions of the paper is the needto expand the legal framework of international cooperation as well as the development of common rules of standards in the field of information, creation of a single participants interstate formations approachin the field of legal regulation — harmonization and unification of legislation of the members of unionstates, integration to the RF legislation of the recommendations set out in international instruments. |
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18–26
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Currently, many states encountering the threat of terrorism from abroad resort to the measure of the socalled target killings which is a liquidation of the members belonging to terrorist groups. Consequently,a question arises if the victims of the attacks carried out as this measure may take advantage of internationallaw remedies. The issue got especially acute after the September 11 attacks when military menand the police were assigned to liquidate or arrest potential terrorists at the territories lacking a propermechanism to protect human rights. As a result, a question arises if state is responsible for the agents who committed crimes outside its territory or jurisdiction. The paper attempts to tackle the issue on thebasis of the paramount right, i.e. the right to life which is the most vulnerable in conflicts where the line between the paradigm of military conflict and human rights is blurred. Besides, it should be noted that the mechanism of the extraterritorial application of the right to life is similar to the mechanism of the right to freedom from torture, which acquires topicality with the widespread practice of extraterritorialdetention and imprisonment (extraordinary rendition). This article considers the key human right treaties representing universal and regional systems of human rights. The author analyzes the cases ofjudicial and quasi-judicial bodies intended to protect human rights in their jurisdictions and studies thedoctrines on the responsibility of states for the actions committed by their servants, agents and other actors. The author concludes that despite the fact that the state is responsible for the violation of the right to life the scope of this responsibility varies from convention to convention. |
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27–41
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In this paper, the object of study is the process of formation and current state of the legal and politicalnorms, aimed at provision of international assistance to countries with special development needs. Theaim is to gain new scientific knowledge about the formation of the customary rules of international lawand the political commitments at international level in the interests of developing and least developed countries. The author uses historical and logical methods of scientific knowledge, analyzes the development of international economic relations in the process of providing assistance to developing countries.This article contains historical analysis of the investigated problem subject to the provisions ofthese important documents in this sphere as the Universal Declaration of Human Rights of 1948, Declaration on the Right to Development of 1986, Declaration on Environment and Development of 1992, United Nations Millennium Declaration of 2000, Johannesburg Declaration on Sustainable Development of 2002, Istanbul Declaration on the Least Developed Countries of 2011, Declaration of RIO+20,Addis Ababa Action Programme of 2015 on Financing for Development etc. The author investigates the provision of international assistance to developing countries in such areas as trade, reducing the burden of external debt, technical assistance, increased funding and foreign direct investment, international support domestic reforms, the provision of official development assistance, and others. Thearticle also provides an institutional framework for the study of international economic relations in theinterests of developing countries — a description of the main activities in the field of the development ofthe World Bank Group, International Monetary Fund, the World Trade Organization, the UN specializedagencies. The author concludes the study of the formation of the historical period at the international level of the complex international legal and political commitments made by the majority of states andaimed at building a stable economic relations with a view to inclusive economic growth for countries inneed. Also, the author sums up the close relationship of international standards in the field of promotingsocio-economic development of countries in need with the implementation of one of the most important international human rights — the right to development, as established in the Declaration of 1986. |
Russian law: conditions, perspectives, commentaries
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42–49
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The article is devoted to historical analysis of proprietary claims’ legal nature. The work objective isidentification of owners’ protection rights functioning issues by way of claiming from other persons’unlawful possession. The author undertakes the analysis of mandatory and optional elements of fact tobe proven under vindication action, and examines formation possibilities of modern petitory protection ways based on classic civil constructions. Attention to foundation protection principles is conditional upon, in the first place, the necessity to understand, could new active participants of property relationsbe securely protected by old methods? Would application-of-basics-by-analogy approach be effective in the view of absence of modern deep theoretical developments targeted on property reservation? What are prerequisites form of creation of adequate protection mechanism in frames of existing legal paradigm? Continuous civil discussions, generated by commercial court’s practice on claiming from other persons’ unlawful possession issues of undocumented securities, which are non-material objectsby their essence, formed a ground for critical approach in studying the variety of ways which a legitimate owner has. On one hand, far not unity national community of theoretical securities specialists and, on the other hand, uniformed, consolidated system of Russian courts with a universal and actual application methodology of securities owners protection rules, allowed to hark back to classic Western jurisprudence in search of answers as an ultimate source of solutions and constructions, which we may need today more than ever before. The author also examines prerequisites for new understanding of basic protection ways, in particular, extrapolation of proprietary rights to non-material objects. Considerationof main action types with proprietary nature allow to provide answers to questions, arising from origination and formation of modern action on claiming from other persons’ unlawful possession, whichis, to our vision, the most effective protection method for a man of property incepted during the period of ancient Roman law. |
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50–65
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The paper features representative cases from judicial practice and examines the current developmentin the area of qualifying administrative offenses. The analyzed approaches to the concept of a continuingoffence have allowed making up cut-and-dry criteria which a continuing offence should meet. Theauthor notes that broad interpretations of this term by judges lead to a large number of court decisions, intended to correct errors in the interpretation of legal norms by lower courts. This increases the loadon the system as a whole, and causes the emergence of a case, as the ambiguous definition of the concept in the legislation compels Russian courts to develop an approach on a case-to-case basis as to the possibility to attach an offence the group of continuing ones. The paper emphasizes the relevance of the issue what offence is continuing since Article 4.5 of the RF Administrative Code establishes the period of two months to start administrative liability, which as a rule begins from the date of the violation,and in the case of a continuing offence — from the date of detection. The time when a continuing offence is revealed is another topical issue in case practice as under part 2 of article 4.5 in the RF Administrative Code it is the date after which time limits starts. The paper notes that taking into accountall the mentioned definitions tends to be inconsistent entirely with the process of initiating proceedings as under the RF Administrative Code 28.1, the initiation of a case requires sufficient data revealing anevent of administrative offence. As of drawing up an infringement notice on an administrative offence,a person in authority may not provide the necessary supporting documents. The time required for their collection may exceed the time limits resulting in refusing to initiate proceedings after the time limits expire. Such situations arise, for example, when ordering a testing examination. |
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66–77
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The article is devoted to the information and legal issues of ensuring patient’s confidentiality and providing necessary conditions — legal and moral- to restrict the access of unauthorized persons to patient’s health data. The historiographical analysis has been made concerning the development of the legislationi.e. the Penal Code, the Nuremberg Code, the Geneva Declaration, etc. in the sphere of medical privacy. The author has compared their legal characteristics with the current legislation. Besides, the author describes the legal features of doctor’s confident data, its correlation and difference from medical privacy. The article gives a comparative legal analysis of existing legal acts regulating confidentiality of medical data. At the same time, it is pointed out that medical confidentiality is not absolute. Thereare grounds established by the legislation to receive this information upon request without patient’s consent. In fact, there are cases when the Law On Health Protection of the Citizens in the Russian Federation conflicts with other laws, that produces results in the form of discrepancies as to the administration of laws. Such situations are studied by the author on the materials of case practice especially appeals due to non-providing confidential medical information to the lawyer of the client. The paperexamines the grounds to get such information forcibly by a third party for the purposes of some professional activities, i.e. a lawyer, an insurance company, members of the commissions dealing with minors and protecting their rights. Based on the analysis of practice and comparative legal study of the current legislation some proposals have been worked out to amend some legal acts, in particular, the FederalLaw On Lawyers and the Criminal Procedure Code of the Russian Federation. The point for discussion in the paper is presented by the criteria and legality to inherit medical information. The author draws the analogy between the principle of inheritance and copyright, and raises the issue of its legal consistency,giving reasons for his case. The aspects of criminal, administrative, civil and disciplinary responsibility for violation of legislation by officials in the field of medical privacy have also been touched upon. |
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78–87
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The article examines current legal issues of state economic cooperation within the frameworks of Eurasian interstate mechanisms of economic cooperation and integration. In particular, we investigated thelegal aspects of cooperation among member states of the Shanghai Cooperation Organization (SCO)in the transport and logistics sector. The importance of development of transport infrastructure in theframework of the SCO is determined by its operation in the complex geopolitical and geo-economic realities. The author explores the basic international legal instruments of the SCO, relating to the transport sector; also the latest empirical material is examined. The peculiarities and disadvantages of the legal regulation of the transport and logistics activity are identified.The author examines the actual problem of connection of the modern Eurasian mechanisms of state cooperation in terms of the creation an efficient transport infrastructure and concludes that the latest transport initiatives of China and Russia can effectively be implemented on the basis of the SCO. Connection of the Eurasian Economic Union (EAEC) and the Silk Road Economic Belt (SREB) with the SCO as an institutionalized international organization and an effective platform for the development of coordinated decisions is expected to be optimal. The combination of these mechanisms will create anew model of economic cooperation. The construction and modernization of transcontinental transport highways seems as the basis for the practical implementation of the connection of the Eurasian integration mechanisms. The author considers the mechanisms of international legal regulation of rail transportwithin the SCO. In the article the major obstacles and recommendations for the effective functioning of the railway communication are identified for the first time. In the article international legal regulationof the automobile communication in the SCO and the current legal framework of the international road transport is investigated. The author concludes that the existing international legal regulation of state cooperation in the transport and logistics sector in the SCO allows effective development of a modern transport infrastructure, the formation of which involves the intensification of the cooperation amongstates of the SCO in other fields and would stimulate economic integration of the Eurasian states. |
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88–99
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The article is devoted to an insufficiently developed topic of the comparative analysis of criminal law prohibitions in corporate relations. The object of the comparative legal research is the criminal legislation of the CIScountries (Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan,Ukraine). The focus is made on the legislations with the similarity to Russian law: Kazakhstan, Belarus, Ukraine and Moldova. The research has shown that the CIS countries have the convergence of criminal law prohibitions (unlawful deprivation of rights to participate in a legal entity, abuse of power in the corporate governance, various violations associated with the register of securities holders, disclosure procedures and providing information to participants). Most of the prohibitions first appeared in Russia early in the 21st century and were subsequently included in the legislations of the other states. The similarity is seen not only in the prohibitions, but the legislative mechanics of presentation. Moldova has the highest level of criminal law repression. Some actions recognized as crimes may only be consideredas torts in Moldova. This also concerns majour transactions and the related-party transactions in the absence of a proper corporate approval. Criminal law tools in many countries have an anti-raider trend.At the same time, the analysis of the legislations of Armenia, Azerbaijan, Kyrgyzstan, Turkmenistan and Uzbekistan lack the description of actions which could be qualified as criminal law prohibitions incorporate relations. The author holds the view that the reason for the situation in criminal law may be accounted for an insufficient level in the development of economics, business and high-profile cases when the rights of participants are violated. |
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100–118
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Procedural mechanism of realization of the criminal proceeding in regard to persons falling under theparticular order of production on criminal cases, provides for as component part and simultaneously method of providing of their inviolability the order of laying an action and bringing in of these persons complicated as compared to ordinary, as defendants on criminal cases. On this basis, the attempt of complex analysis of the most difficult and litigions questions, touching the criminal proceeding of personsfor that he is initially intended, is undertaken in a publication. Authorial vision of possibilities of their decision is expounded in her, on a background a corresponding legal and theoretical ground. Complicating the general order of criminal trial, through introduction of additional duties and prohibitions forpersons accountable for motion and end of production in criminal business, positions of the Russian Federation come forward, in opinion of author, as the extended judicial guarantees of inviolability ofcertain circle of the special subjects executing socially-meaningful functions. Not increasing the volume of their inviolability, they diminish possibility of her limitation, reducing, thus, the danger of realization ofthe groundless criminal proceeding. In spite of the fact that the list of the special subjects to the law isdriven by exhaustive character, in part touching denotation of limits of their judicial immunity, the normsof ch.52 CPC of the Russian Federation carry blanket character, as his actual maintenance is different. An author considers on this basis, that accomplishing judicial actions and accepting statutory decisionsa court, public prosecutor, leader of investigative agency, investigator, must take into account not only envisaged by CPC of the Russian Federation feature of production on criminal cases in regard to the separate categories of persons but also position of normative legal acts exposing their legal status,volume of plenary powers and limits of action of judicial immunity in a that kind, as they are envisaged ina branch legislation. Self legislation on that score, must consistently change in the river-bed of recommendations of International organization of CE «Group of States Against Corruption» (GRECO) speaking out in the report for reduction in him categories of persons to that the special procedure of bringingin of them spreads to criminal responsibility, and also for simplification of such procedure. |
Judiacial Practice
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119–130
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The article is a detailed analysis of article 124 of the Constitution of Russia. The article explores the issues of legislative regulation of court financing from the federal budget; discusses the causes of discrepancybetween the provisions of the federal legislation and the Constitution of Russia concerning the material support of the judiciary; studies the problem of quantitative and qualitative measures of funding the judicial system, ensuring its independence, transparency and openness. Other issues for the discussion presented are the adequacy in funding courts and the question of the need to arrange a list of state bodies and officials authorized to perform the material support of judiciary. A special attention is paid to studying experience of the leading countries in the matters of budgetary financing of judiciary. For example, the legislation in the U.S., Japan, the Netherlands, the Republic of Lithuania demonstrate the model of financing courts on the basis of a separate budget line, formed by the bodies of judicial power independently,the procedure of harmonization of legal expenses with the executive authorities, guaranteeing the rights and legitimate interests of the courts. Finally, the author formulates proposals for improving the legislation and comes to the conclusion on the necessity to adopt a federal law regulating the issues of financial security of the judiciary to create in Russia an independent, open and self-regulating court motivated to present high standards. The need to adopt a separate federal law regulating the financing of the judicial system is shown in article 124 of the Constitution of Russia, fixing that funding shall be in accordance with federal law. The article identified the following key provisions of the proposed law: sources of fundingof the judiciary; the judicial procedure for the preparation of the budget; the budget structure of the courtand its main indicators; the procedure for approving the budget of judiciary with the Russian Government; the control over the expenditure of budgetary funds by the judiciary. The author proposes three majour parameters that make up the budget of the Court, as well as determine the list of public bodies having theright to receive funds from the budget and distribute them among the courts. |
Law in the modern world
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131–144
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The paper is devoted to ways and means of overcoming inevitable legal and political obstacles on theway of modernization of the supreme law of state. For illustration author has selected several important moments in modern constitutional process of Canada. It belongs to the legal family of common law countries and in our times is one of the oldest and the most respected across the world constitutional democratic federal states. The article contains detailed description and exploration of the principal and second-rate features of constitutional regulation mechanism functioning in this North American state. In the field of analyzing model of federal state created by Canadians author directed his main attention to the division of competence and its subjects between federal and provincial levels of public power and to key turns in dynamics of theirs mutual relations changing in contemporary circumstances. There is exploration of the role and place of constitutional conventions and judicial precedents in Canadian legal doctrine and constitutional practice. There is emphasized in article the multiplicity of ways and means implementing in process of interaction between Ottawa and members of Canadian federation. Author tries to clear ameasure of necessity and expediency of the constitutional reform of 1980s and to identify chief phases of the latter. He studies an impact made by judicial instances at the level of provinces and federal center into modernizing Canadian Constitution, including the sentences of the Supreme Court of Canada in Patriation case. There is checked in the paper big measure of social purpose producing by power bodies by acting inclusively in the limits of the rule of law (including parliamentary statutes, usages, etc.), by subordination of economic challenges to law and order imperatives and by subordination of the executive bodies to judicial decisions and opinions, in particular. Author presents his look at conditions of Canadian constitutionalism after reform, especially vis-a-vis government of Quebec steady opposition to Charter ofrights and freedoms of Canadians. Also he positively evaluates qualities and level of state leadership of federal powers in modernizing constitutional process in democratic parliamentary state. |
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145–156
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One of the most problematic issues of the bankruptcy procedure is a fair distribution of the cost ofthe debtor’s assets among the creditors under the liquidation of debtor. The issue becomes particularly challenging for foreign creditors who often lack sufficient knowledge about the legal regulation of bankruptcy abroad. In this regard, it seems urgent to tackle the question of distribution priorities inforeign legal systems. In this article, the author examines the legislation and jurisprudence of France regarding the order of pre-commencement creditors’ claims settlement. Currently, this branch of lawhas seen a number of reforms which require exploration. The most part of Russian studies devoted to bankruptcy proceedings in France do not cover this field. In this study, the author describes the difference sbetween the pre-commencement and post-commencement creditors, as well as considers the conditions for recognizing several claims as privileged for the purposes of distributing property of the debtor. Further, the author examines in detail the sequence established by the legislator concerning the distribution priorities as to pre-commencement creditors, depending on the nature of the property (movableor immovable) to be distributed. Finally, the paper presents the methods, which allow creditors toget their claims satisfied beyond the statutory priority, that is, in a preferential order. Based on the studythe author concludes that there exists an economic component of the legal regulation of bankruptcyin France. By introducing certain institutions, the legislator can regulate (stimulate or repress) the activityof several businesses. At the same time, since under liquidation the purpose of the bankruptcy procedure is primarily an equitable distribution of the value of the debtor’s assets among creditors, thepriority of their claims appears to be representative one for this branch of the law of a particular state.The results of this research and the conclusions may be used both by practicing lawyers to determinethe status of a particular claim against the debtor and by researchers in the study of various approaches to the concept and the legal regime of pre-commencement claims. |
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157–167
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The subject matter of the study is the issue of overcriminalization and strict punishment in the USA.The paper features the reasons for this phenomenon, attitude in society to criminal law as a tool to tackle social and economic issues and financial crisis. The study is supported with cases showing the excessive use of criminal liability including the RICO Act. The author points to an inadequate attitude tothe subjective aspect of the elements of crime (mens rea) in the bills submitted o the US Congress anda wide interpretation of federal laws by courts. The paper explores the consequences of this situation including the impossibility to know the bulk of laws and acts and the violation of procedural guarantees.A special problem is seen in overcrowded prisons causing the violation of basic human rights and failureto meet basic material needs. A special attention is given to the Criminal Responsibility of Juveniles,the decisions of the US Supreme Court related to the application of milder punishments as to minors.To overcome criminalization regarding the specified group, American researchers propose restorativejustice. The latter promotes to decreasing recidivism among minors. A proposition is made to set the possibility to apply the clauses related to the criminal responsibility of minors to the people older than 18 but not achieving 25 years of age. The paper studies the origin of the campaign against overcriminalization,which started developing after approving The Model Penal Code, and is not politically motivated. Recommendations from American legal academics are given regarding federal legislation and courtsin particular the proposition on admitting innocent misrepresentation (mistake) as an immunity fromcriminal prosecution. The aim of the paper is to arrange the situation in the US to study and counteract similar phenomena in Russia as the issue remains acute. |
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168–180
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The approach to legal terms of art (or technical legal terms) form rhetorical perspectives is based on their place in legal discourse depending on the genre of the text. The division of legal texts by genres, proposed in the article, is grounded in Russian theory of slovesnost’, which was in the core of education in Russia in the second half of the 19th and beginning of the 20th centuries and was later developed in the works by Soviet professor of linguistics Yuri Rozhdestvensky and his students of rhetoric, philology and cultural studies. Law as a discipline in which ordinary words and terms of art behave in a different way than in other sciences poses many questions before the researchers, and these questions can only be resolved by using interdisciplinary approach, where rhetoric and theory of slovesnost’ provide one of the possibilities. The main legal genre of written prose is a normative act, that is why special attention is paid to the use of the terms in statutes. Different behavior of terms of art in texts of different genres is noted. Analysis of polysemy and homonymy in statutory texts and investigation of legal terms versus terms in other sciences is made. Special attention is paid to technical legal terms, which have different definitions in different branches of law, to legal definitions, which have different meaning in law and other sciences, to terms of “general science” (such as ‘assimilation’, ‘operation’, ‘balance’, etc.) and to those words, which can be used in legal texts in their ordinary or terminological meaning (e.g. ‘agent’, ‘defender’). A distinction will be drawn between the technical legal terms in legal theory and technical legal terms, which found their definitions in statutory texts or regulations. |
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181–193
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In July, 2015, the Russian President signed Law No. 264-FZ which grants to Russian citizens the right to request delisting of search results which link to inaccurate or irrelevant information about them (“the right to be forgotten”). According to its drafters, the law is expected to adapt Russian law to the European practice. This article recounts the decision of the Court of Justice of the European Union in Google Spain v. AEPD and Mario Costeja González, the case which inspired Law No. 264-FZ, and analyses commonalities and differences between the judgment of the Court of Justice and Law No. 264-FZ.The decision in Google Spain v. AEPD and Mario Costeja González was decided with reference to the principles contained in the data protection legislation. Guided by these principles, the Court of Justice of the European Union sought to strike a balance between the individual’s right to privacy and right of the public to access the information. As a consequence, search engine operators in the European Union are not obliged to remove search results if there is the preponderant interest of the general public in having access to the information in question. In contrast, Law No. 264-FZ is not based on data protection principles and introduced the sui generis right to request delisting of search results. The law contains a number of differences from the decision in Google Spain v. AEPD and Mario Costeja González. Most critically, Law No. 264-FZ fails to give due consideration to the public’s right to access information and does not contain a similar general exception from delisting of search results. |
Scientific life
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194–212
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Annual April Conference held place on April 8 to 10, 2015 at National Research University Higher School of Economics. Its integral part was a plenary discussion under title Demand for Law: Factorsand Vital Forces. There were debates about ways and means of ensuring balance between needsof society and legal norms, about clearing these needs and its translating on legal language. It was agreed that sociology of law and political analysis play importamt role in solution of these issues. During discussions were spoken out theoretical ideas and presented results of sociological exploration of demand for law. |
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213–224
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On May 23, 2015 at Law Faculty of National Research University Higher School of Economics held place a discussion of changes in the Civil Code, in force since June 1. The participants of discussion included professors and lecturers of Department of Civil and Entrepreneural Law E.P.Gavrilov, A.A. Ivanov,M.V.Krrotov, K.A.Novikov, lecturers of other departments and students of the Faculty. The main subject ofthe debates appeared to be the newly-born legal norms regulating obligations — its principles, fulfilling, ceasing, responsibilities of sides. The public tried not only to comment changes in the Code from doctrinal positions, but also to evaluate it in the historical context, to identify its logic and sense. |
Book review
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225–229
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Review of a monograph by Haunss S. Conflicts in the Knowledge Society. The Contentious Politics of Intellectual Property. Cambridge: Cambridge University Press, 2013. 281 p. |
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230–235
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Review of a monograph by Reddick C. (ed.) Citizen and E-Government. Evaluating Policy and Management (2013). New York: Information Science Reference, 519 pp. |
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