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Legal thought: history and contemporarity
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4–16
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Broadening the list of the protected results of intellectual property should not cause the deprivation ofthe possibility to have an access to a scientific and cultural domain and use it in society. Acquisition byusing intellectual property of global nature means the necessity to obtain permission to use the resultof intellectual activity in some jurisdictions and probably from different copyright holders. This raises theprice of using intellectual property and hence the price of access of society to the existing achievementsof the human mind in both cultural and technological areas. To solve these issues, the mechanism ofpublic domain can play a significant role. It is deserves noting that a simple withdrawal of objects fromcopyright protection may cause new challenges: weaker exclusive rights can cause not only broadeningthe sphere of free use of works by society but monopolization of the emerging sphere by people supervisingdatabases. The public domain regime allows averting this challenge setting rules and conditionsof using third party’s results of intellectual activity. At that, this regime may be lucrative to both users andcopyright holders which in turn use borrowed results of intellectual activity in the commercial activityincluding the creation of new objects. The paper features the fundamental functions of public domain.These functions are various and they go beyond the limits of the internal regulation of intellectual property.However, the regime of public domain lacks efficiency in terms of stimulating initiative in innovationsand creating new results as the mechanism of exclusive rights works better. Thus, complex regulationof issues of intellectual property taking into account the potential of every available instrument maybecome the most efficient. In this case, the regime of public domain may be a crucial tool for regulatingintellectual property and using information in general. |
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17–33
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article considers the sources of income of religious institutes, origin and destination of Churchproperty and the withdrawal of state ownership of church property (secularization) as a special form ofnationalization. The analysis is performed on the example of the Orthodox Church, for this the sources ofCanon law and the historical aspects have been studied. The author analyses the sources of acquisitionof church property, makes the conclusion about the public mission of the church property. That meansthe seizure of church property generates budget expenditure commitments.The article describesthe sources of church property, legal forms of its seculyarization, and also aims of church property.Acquisition of temple property is tracked from the oldest times but it could be made by law only fromthe moment of the Milan edict (313). The main sources of its acquisition are: donations, inheritance,purchase or creation, gifts from the state treasury. The mission of church property is defined by internalrules of Church, but it is not certain resolution in the the canonical law, despite clear understanding ofdue and undue use. Seculyarization is a historical form of nationalization, its character depends on aninvolvement of the state into affairs of church management. The seculyarization history in countries ofWestern Europe is connected with a problem of „killing” of church property for a civil using. In the East (the countries of East Christian religion) such problem didn’t stand owing to bilateral process of donationand withdrawal of property between the church and the state. |
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34–44
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Тhe author compares the criteria of internal remedy against red tape when considering a case orexecuting a judgement applied by the European Court of Human Rights and legal guarantees set by theFederal Law of April 30, 2010 № 68-FZ On the Compensation for violating the right to proceedings indue time and right to executing the court ruling in reasonable time. The author concludes on limited legalmeans to claim compensation for red tape and the limited range of measures to claim compensationfor the violated right to a fair trial is interpreted by Russian authorities as a feature of national legalregulation. A legal case on protecting consumer rights is applied by the author to show the case practiceof interpreting the provisions of the law in question. The law exposes its inefficiency and new breaches of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950).The reasons for its inefficiency of the Russian law are kept in its provisions and the procedural rules ofstudying the requirements to claim compensation for red tape during a trial. On the basis of the Law andits application, the author makes several conclusions. The legal institute of compensation for red tapedoes not meet the requirements of an efficient relief against red tape and Article 13 of the Conventionfor the Protection of Human Rights and Fundamental Freedoms and the legal decisions of the EuropeanCourt of Human Rights on the complaints against Russia. Hence, the systematic issue of lentitudeof legal trials is not solved in Russia. There is a necessity in removing the inconsistencies as to therequirements of Articles 6 and 13 of the European Convention. The case practice of the Federal Law ofApril 30, 2010 № 68-FZ shows challenges in applying common principles and norms of international law. |
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45–53
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The article is dedicated to the main features of the communicative theory of law. The works of legalscholars concerning with the development of the communicative concept of law have been analyzed.Its practical application in the legal system of the Kyrgyz Republic has been examined. Theoreticaland legal analysis of the scientific debate about the communicative theory of law determines itspersonalistic and humanitarian orientation. A feature of the communicative concept of law developedby professor A.V. Polyakov, is that it is based on an integrative approach to legal thinking. As part of thecommunicative theory of law paper is synthesizing sociological and psychological concepts of law. Theright is considered as psychological-socio-cultural integrity. Underlying this approach is the relationshipof human and his rights and duties. The article analyzes the main features of the right: the presence of entities with interdependent (correlative) rights and obligations; the presence of social recognized andgenerally binding rules of conduct. Communicative theory of law raises the question of the feasibilityof expanding the scope of the fictions of the technical and legal administration, aimed at overcomingthe conservatism of methodological tools to understand the law. At the same time, it is necessary toexplore the practical application of this theory in the context of globalization and legal convergence.In accordance with the communicative theory of law legal communication, expressed in meaningfulbehavior of people who are aware of their legal rights and duties. However, the actual relations linkingthe two entities, in their view, the rights and duties are not, if they are not normative. Communicativetheory of law has received mostly positive reviews within the scientific community. Disputable certainprovisions of the communicative theory of law is expressed as follows. Legal scholars pay attention to theambiguity of the phenomenological reduction of legal eidos, which can lead to subjective interpretationof the scholar concept (Kozlihin I.J.), the widespread use of different legal concepts borrowed fromother sciences (Y.I. Grevtsov) and wide enough the definition of rights (Romashov R.A.), etc. In general,communicative theory of law presents an interdisciplinary approach. This concept demonstrates thedevelopment of integrative approaches to legal thinking in modern jurisprudence. |
Russian law: conditions, perspectives, commentaries
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54–69
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The paper studies constitutional grounds for the involvement of citizens in state affairs and administeringjustice considered as the fundamental principles of relations between a democratic state and its citizens,with an emphasis that court cannot be separated from society as courts will not become efficient bodiesof social control without response from society. The author develops the idea that the institutes involvingcitizens to administering justice are an efficient tool to fight corruption in judicial system, to promote a trulyindependent justice and may influence the formation of civil society, the development of civil responsibilityand civil consciousness. The paper scrutinizes the objects and objectives of applying this institute, identifiestheir differences and features in terms of various types of justice. The instances of involving citizensin administering justice are presented on the examples of arbitrazh jurors in economic trials. The casepractice is based on arbitrazh courts. The paper considers the changes in the arbitrazh procedural legislationand the resulting changes in administering justice which lead to adverse consequences represented in curtailing this institute and thus impossibility to compose the group of judges and jurors of people witheconomic background. The paper revealed the causes of this tendency on the basis of statistics, arbitrazhpractice and sociological research. In particular, the author examines the process of composing the groupof arbitrazh jurors in court to identify positive and negative processes and their causes, influence of Russianbusiness community. The paper analyzes the corps of a particular arbitrazh court considering aneconomic dispute. Besides, general issues and their causes are studied in the paper. |
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70–90
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Problems of a federative form of state acquired relevance in the Russian constitutional law studies inthe 2nd half of the 19th century. In general, the federation was interpreted as a union of states (quasistates),in which its units were subject to the power of the federal government in certain areas (withinthe limits outlined by the federal constitution), while maintaining the autonomy in other areas. Thus,the origin of the federative state was seen as a process of strengthening the centripetal power in confederation,but not as a decentralization of a unitary state. At the turn of 19-20th centuries, the mainproblems of legal theory of federation became such issues as sharing sovereignty and legal status of the constituent units under the influence of German lawyers (especially G. Jellinek). At the same time,B. Chicherin and A. Gradovsky, who are outstanding Russian legal scholars of the 2nd half of the 19thcentury, did not consider the question of the legal status of the component units of the federation as apivotal issue for federative theory. They considered federalism as a guarantee of the decentralizationof public authority (A. Gradovsky) or fragmentation and distribution of government’s power in variouspolitical bodies (B. Chicherin). However, the decentralization conception of federative ideas containedin works of Gradovsky and Chicherin was relegated to the background of Russian constitutional lawstudies by union conception of the federative state with its problems of sovereignty and the legal statusof the constituent units of the federation. |
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91–102
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The article concerns interesting and important issues of compensation for harm caused by illegal actionsof administrative bodies. The article focuses on the current aspect of the issue. The paper proposesnecessary amendments to the legislation related to the issues raised in the article. In particular, thepaper proposes amendments to the legislation, for example the supplement of Art. 2 in the Law ofthe Russian Federation from 27.04.1993 N 4866-1 On appealing against the actions and decisionsviolating the rights and freedoms of citizens’ may be supplied with the provision that citizens have theright to file application for damages or losses caused by illegal actions of administrative bodies in theevent of denial letter regarding the implementation of pre-court dispute resolution by an official. Theauthor also proposed to supply Art. 6 of the Law of the Russian Federation from 27.04.1993 N 4866-1On appealing against the actions and decisions violating the rights and freedoms of citizens with theprovision under which in cases established by law, when considering a complaint for damages (harm)caused by unlawful actions (inaction) of an official, court must take into account the obligation to complywith the order of pre-trial dispute resolution procedure for damages (harm) to a maximum of 100,000roubles. Russian law 27.04.1993 N 4866-1 On appealing against the actions and decisions violating therights and freedoms of citizens may include a rule under which unlawful conduct of an official who wouldnot pay damages shall responsible. The author shows the necessity of the changes in the Arbitrazhand Civil procedural Codes of the Russian Federation, the Russian Code of Civil Procedure concerningthe cases when an appropriate subject doe s not voluntarily pay the damages caused by unlawfulactions (inaction) of officials, the amount to be raised through the courts, can be increased. The authorconcluded that legislation should encourage compensation in administrative procedure, as opposed tolarge financial costs in the courts. |
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103–115
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The subject of the research is the Russian Federation Сivil Code norms declaring non-exclusive author’srights, non-exclusive authors rights сclassification and a possible influence on the foreign author statusin the Russian Federation. Special attention was given to such aspects as: 1) identifying major signsof moral rights and other author rights under the RF law; 2) reviewing and clarifying the non-exclusiveauthors rights classification in the RF law on the basis of the identified characteristics of moral rights andother author rights; 3) assessing the classification of non-exclusive authors rights in the RF Сivil Codein the framework of the Russian Federation international legal obligations; 4) analyzing doctrinal opinionsand the enforcement practice on the subject; 5) anticipating possible problems in the regulationof foreign author moral rights in the Russian Federation and suggesting ways to resolve problems. Thestudy applied the following methods: legal analysis, legal simulation, legal prediction, comparative lawand historical analyses. The major findings in the study are as follows. Firstly, gaps have been identifiedin the classification of non-exclusive author’s rights according to the RF Сivil Code. Besides, proposalshave been made to refine the classification in the light of law-making practices of individual states, theRussian legislation applicable before the RF Сivil Code came into force and contemporary generalizationof Russian enforcement practice and the Russian Federation international legal obligations (underBerne Convention for the Protection of Literary and Artistic Works, 1886). The author suggests classifyingthe right of integrity as moral right (other than those listed in art.1228 RF CC). Besides, the authorsuggests classifying as the other author rights other rights such as the right to disclose a work, right torecall the work and right to remuneration for the use of service-related work (other than those listed inart.1226 CC RF). Secondly, risks were identified of possible regulation problems of foreign author moralrights on the RF territory and solutions were suggested to remove them. |
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140–146
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Bank secrecy has long been recognized as one of the fundamental legal constructions in banker-customerrelationships. Recent developments in legal regulation of it show that bank secrecy is subject to more andmore limitations, i.e. more and more authorized bodies may have access to the relevant information and,moreover, in some cases the banks are obliged to inform the authorities about clients’ transactions evenwithout any request. Many scholars consider these developments as a limitation of bank secrecy whicheventually may lead to its “death”. The author argues that such an assessment is based on a one-sided approachto bank secrecy as a fundamental right of the bank’s client. As a general rule, bank secrecy of thisnature is understood to be one of the components of an individual’s right to privacy, or — in the case of alegal entity — as one of the fundamentals of the legal status of a legal entity. Although such an approach isacceptable within a positivistic view on the legal theory, the author argues that a broader view on the matteris justified when the legal nature of bank secrecy is understood as a legal construction aimed at finding anoptimal balance between private and public interests involved in the confidential sphere of banker-customerrelationships. As a result the latest developments may be seen as attempts to find a new balance, thebalance between private and public law aspects of bank secrecy which will be more adequate taking intoconsideration the realities of the contemporary banking and financial environment. |
Law in the modern world
Discussion club
Book review
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