|
Legal thought: history and contemporarity
|
4–20
|
The subject matter of the paper is the theory of international private law developed in a treatise of theGerman 17th century scholar Johann Nikolaus Hert. The paper examines the major doctrines, rulesof resolving conflicts of laws, their significance and topicality for the modern international private law.The personality of Johann Nikolaus Hert locates the central place in the German statutory theory.The ways of resolving conflicts of the laws belonging to different nations, proposed by this scholardetermined the development of German conflict of law doctrines of the 19th and 20th centuries; thepractical solutions developed by him are fixed in the modern legislation and case practice. However,Hert’s conflict of laws theory is controversial, ambiguous, real examples do not fit the rigid theoreticalcategories. The paper concludes that with all the criticism of Hert’s theory, he contributed significantly tothe development of the international private law doctrine. He developed the terminology of internationalprivate law and enriched it with terms collisions of laws, conflict of laws embraced by legal practice,legislation and doctrine in the majority of countries. Hert’s three rules are in essence three variants offoreign element (subject, object, fact) which are to be found and assessed in terms of the choice of acompetent legislation. His 63 cases cover the law of persons, inheritance, property rights of spouses,contracts, process, i.e. all spheres prone to conflict of laws. Hert’s dissertation featured completely allthe potential conflict of law situations. He confirmed the classical interpretation of mixed statutes as thelaws on the form of legal actions; insisted on the obligation to apply foreign law, pointed to the necessityto unify local laws to avoid interlocal collisions. All these results are of high significance and though inhis theory «Hert is a victim of different, sometimes incompatible influences”, his practical tactfulnessalways helped him to find proper solutions during conflict of laws. |
|
21–36
|
The paper features Mongolian law in context of its interaction with common law of Mongolian tribes of pre-state period, traditions of Mongolian society under Genghis Khan rule, and as part of the Qing dynasty. The main aspect of the research is the legal basis and acts enforced on the modern territory of Inner Mongolia. On the basis of the materials of Russian and foreign researchers unknown to awide academic community, the author identifies six groups of sources of Mongolian Law and providesdetailed characteristics of each. The first group of sources incorporates Yassa as a source of rules and punishments for violating them. The second group of sources represents the so called secondary legal acts enabling to perform administration and other administrative actions including decrees (tchzan) and orders (tchi) of the Great Khan, labels, defters and pajtsze. The third group of sources comprises the laws of the the Yuan dynasty (1271–1368) and North Yuan (1368–1691); the fourthincluded Oirat charters (Tsaadzhin-bichik), decrees of Oiratean khans and petroglyphs. The fifth groupof the Mongolian sources included Khalha acts in particular the great semikhoshunn law and Khalkha Jirum. Group six of the sources involves Chinese Law for Mongolia approved after Khalkha and SouthMongolia were included in the Qing dynasty. On the basis of detailed analysis and comparison, theauthor matches the sources and their separate norms, which forms a conclusion that the process ofthe development of Mongolian law differed from the one of neighbor states and even after the loss ofsovereignty, public relations on the territory of Mongolian lands were ruled by special normative acts. |
|
37–47
|
The subject matter of the research is the legal category of subinstitutes of law. The author formulatesthe definition of the substitute of law addressing the essence of scientific classification in general andin law in particular. Reasons are given as to the objective necessity in carrying out scientific researchin this area as they may contribute to theoretical and practical aspects. Classifying will let considerthe legal category of subinstitutes from different angles in detail. In turn, it will promote to refiningthe concept and attributes of subinstitute and further the ultimate recognition of subinstitute as anintegral part of Russian legal system. The research is seen relevant as Russian legal science lacksthe background for the problem. The paper calls for embarking an academic discussion on this issueas it is vital to set up its clear interpretation. Further, the research studies versions of classifications forthe legal category in question. Various criteria are proposed to search for the types of subinstitutes oflaw in Russian legal system. The classifications are supported with practical examples. The conclusionpresents the summation of the carried out research. The classifications are the first step in developing aclear scientific attitude on this problem. Further, challenging and accurate research is required to set upthe final list of possible classifications in question. Due to the dynamic development of public relationsand hence legal system, the discussion mentioned cannot be postponed. Theory should assist practiceand as we see subinstitutes of law are part of Russian legal system. However, an insufficient theoreticalstudy of the legal category, in particular in classifying, may hinder its functioning in practice or evencause breakdowns in legal system, which is inadmissible. |
Russian law: conditions, perspectives, commentaries
|
48–57
|
The paper presents the role of constitutional judgement in shaping the major rules and institutes ofelection law in Russia. Russian Federation Constitution as a groundwork of the Russian legal systemkeeps the key concepts of democracy in Russia (Art. 3). To implement the constitutional basis of thepivotal authority institutions, federal legislator creates laws on the order and forms of election processmechanism. However, with a high-profile feature of the area of public relations, election law is notstable. The Constitutional Court of Russian Federation executes the function of supreme guarantor ofits Constitution. Despite the Constitutional Court is not the instant body to solve electoral disputes, itrenders a significant influence on the election process by correcting rules of the game on the electoralfield, assessing in terms of constitution the existing rules of election law. The object matter of theresearch is the acts of constitutional judgement between 2013 and 2015 and related to determiningconstitutional laws on elections in Russia. The subject matter is the interpretation of the role ofconstitutional justice in context of the development of electoral law. The analysis of the rulings of theConstitutional Court enables to identify the acute issues of electoral politics and the most controversialand ambiguous aspects of the current election legislation. Some of the issues relate to the limitationof election rights of people due to criminal record, connection and collision in the interpretation of theelection standards in the Constitutional Court and the European Court on Human Rights, necessityin the institution of early voting in Russian electoral practice, and counting the terms of tenure in theState Duma of the Federal Assembly of the Russian Federation and the possibility to change date ofparliamentary elections, constitutional assessment as to the appointment of so called city managers inlarge cities instead of direct election. Constitutional justice keeping the freedom from subjective politicalpreferences bears the responsibility to ensure the Rule of law of the Russian Federation Constitutionin the conditions of election campaigns and solve fairly constitutional and political contradictionsand antagonisms. |
|
58–71
|
The labour law theory lacks a properly developed doctrine of the institute of legal protection (norms andsubinstitutes). Besides, there is no conceptual legal model for the institute of security and hygiene oflabour. The author attempts to complete the blank in legal science. The methodology of the paper is alegal theory as a fundamental regulator of public relations, doctrinal concept of the institute of labourprotection (safety and hygiene of labour) in Russian labour law. This is the first attempt in Russianlabour law to examine the institute of protection and hygiene of labour not only in terms of the currentapproaches but also the draft of the federal law On Security and Hygiene. The paper concludes that the institute of protection of law did not initially (in 1918) met the conceptual idea, content and purposeto promote to saving life and health of employee. Currently, it is not justified to include the instituteof Protection of Labour in part X of the Code. It is evident that the norms of ensuring life and healthof employees require revision in RF Labour Code part IV, i.e. following the institute of Labour agreement— the central concept in Russian labour law. It is paramount: 1) to give a new title to part X ofRF Labour Code, i.e. Security and Hygiene of Labour; 2) Art. 209 the Code determines the concept oflabour security and hygiene of labour; 3) to arrange in chapter X of RF Labour Code to regulate securityand hygiene of labour. Chapter X of RF Labour Code Security and Hygiene of Labour requires a brandnew content. Hence, all the legal doctrines — both Soviet and Russian — on the institute of labour protection await revision. |
|
72–80
|
The recent amendments to the civil law show an evident trend of strengthening the influence of civillaw in the exclusive jurisdiction of labour law. Increasingly, judicial practice resorts to some conditionsof labour contracts with the principals of a company based on the federal laws On Limited LiabilityCompanies and On Public Companies to rule major transactions and related party transactions valid.At that, recent Article 53 of the Russian Federation Civil Code in point 4 stipulates that the relationsbetween a legal person and the persons belonging to it are subject to the code and other laws on legalpersons, which provided grounds to some civil law experts consider such practice legal and justified.However, Chapter 43 of the Civil Code on the features of legal regulation of the labour of the head of acompany and the members of collective executive body of the company remained unchanged. In turn,the rules of the latter as well as of the Civil Code in general do not provide for the ways of challengingemployment contracts due to interest and violating the rules of entering into a major transaction. Thepaper stresses the contradictory nature of the case practice on challenging labour contracts with theprincipal. Another example of interpreting civil law is challenging the conditions of labour contractwithin bankruptcy cases. The Federal Law On Insolvency (Bankruptcy) makes it possible to apply tolabour contract the rules on invalid transaction under the law and civil legislation. The paper shows thepriority as to bankruptcy law the provisions of legal legislation which do not consider labour contractinvalid and hence do not require charging salary from the employees. The issue is proposed to besolved by amending the legislation. In particular, rendering an employment contract invalid and its legalconsequences should be specified in the Labour Code. |
|
81–102
|
The article is devoted to non-ordinary cases of causation in criminal law. The author starts with the criticalreview of general theories and blames them for their ineffectiveness in dealing with specific casesconnected with the multiplicity of causes, victim’s condition, intervention of other actors. All these casesare divided into three groups, namely ‘aggregate causality’, ‘atypical causality’ and ‘intervening causality’.With regard to each group there are formulated general rules of imputation of liability based primarilyon idea of conditio sine qua non and limitation of liability. The author reveals the interaction betweendifferent modes of causation i.e. transformation of ‘aggregate causality’ into ‘intervening causality’.Review of case law allows to formulate clear rules of imputation of liability distilled from philosophicaland theoretical overburdened constructs. With regard to various specific types of non-ordinary causation,there are proposed as possible different approaches based either on strict adherence to objectiveview on causation and limitation of liability as a consequence or on more flexible approach allowingimputation of liability in morally and socially blameworthy cases. Theory and practice of common lawand continental law systems are also widely used as a supporting basis for some propositions. Thearticle concludes with proposed general rule. However, this general rule may be subjected to further clarifications and exemptions. The author also urges not to try to elaborate in future the general theoryof causation applicable to the whole body of criminal law. Instead it is expected development of specialrules much needed in real practice. |
|
103–111
|
The paper studies the issue of widening Russian criminal law jurisdiction based on the Federal Law ofMay 5, 2014 № 91-FZ under the title On Applying the Provisions of Criminal Caw of the Russian Federationand the Criminal Procedure Code of the Russian Federation on the territories of the Republic ofCrimea and the City of Federal Status Sebastopol. Within the normative legal act, legislators rejectedthe traditional way of the differentiated fixture of the principles of criminal law in time and space by unifyingthem in the text of the conflict-of-law rule. Historically, both in Russian and foreign criminal law, theanalogues of such a decision, which aggravated with incorrect legal mechanics regulation, has causedan ambiguous interpretation of the conflict-of-law rule produced by Article 2 of the Federal Law mentioned.Judicial practice applies the prescription in question only in terms of retrospective criminal law.Judicial opinions lack any traces of the aspect of territorial jurisdiction. This interpretation is seen incorrectdue to the impossibility to apply it to the legal relations connected with the Federal Law mentionedand with rules Articles 11 and 12 of the Russian Federation Criminal Code. Hence, without the FederalLaw mentioned, the Criminal Code of Russian Federation is not applied to the deeds committed onthe territories of the Republic of Crimea and the City of Sebastopol before March 18th, 2014. Thus,the doctrinal interpretation of norm of Article 2 of Federal Law № 91-FZ as a dualistic time and spaceconflict-of-law rule is seen more realistic as it is based on the analysis of classical patterns of normativeprescriptions. The author criticizes the legislative regulation in Article 2 of the Federal Law mentioneddue to the lack of legal mechanics, material inner conceptual contradictions, inconsistency between thedualistic approach and the classical postulates of the Russian legal theory of criminal law. On the basis of analysis of Russian and foreign legislation as well as judicial practice, the author proposes his ownversion of Article 2 for the Federal Law № 91-FZ. |
|
112–120
|
Irrespective of the type of legal liability, the right to legal aid is common and should cover administrativeviolations cases. Citizens should have a real opportunity to resort to legal aid irrespective of theirmaterial status. Increasingly, citizens cannot take advantage of the aid of defender due to the lack offunds to pay fee. The author proposes to amend Art. 25.2 of the Russian Federation AdministrativeViolations Code and the Federal Law of November 21, 2011 No 324-FZ On Free Legal Aid in theRussian Federation. The responsibility on financing measures targeting rendering free legal aid as tothe cases of administrative violations under the Russian Federation Administrative Violations Codeshould be taken by the RF, and as to the cases where administrative liability is regulated by the laws ofthe RF Constituent territories, such assistance should be ensured by the RF Constituent territories. Theauthor states that an important role in ensuring constitutional right to obtain qualified legal aid is givento judge. In the author’s opinion, the Administrative Violations Code should provide the mandatoryinvolvement of a defendant in the proceedings on administrative violations. As the issue presentedrequires serious examination, legislators should develop an efficient tool of compensating expenseson paying for legal aid by claiming funds from the state or municipal body (official) which initiated theproceeding if the case terminated due to the absence of act or corpus delicti. In the author’s opinion,the absence of norms in the Administrative Violations Code makes the implementation of the common principles of justice void and deprives citizens of resorting to the constitutional right of obtainingqualified legal aid. A pivotal task of Russian legislators under such circumstances is adding provisionsto Art 25 of the Russian Federation Administrative Violations Code to determine the cases of obligatoryparticipation of defender in administrative proceedings and involvement in court hearings. |
|
121–129
|
The concept of the comprehensive system of international security is not reduced to the problems ofmilitary security and includes another economic and environmental trend of international law and order.Many scientists see the causes of environmental problems in economy. Hence, one issue is getting acute,i.e. of performing economic (advertising) activity on the territory of protected natural site. The specific ofthe paper is in the research of a non-standard balance of different concepts advertising and natural sitesunder special protection in context of prosecutor’s supervision. Advertising is information spread by anymeans, in any form by any means addressed to a wide range of public and aiming to attract attention tothe object of advertising, building up and maintaining interest to it and promotion on the market. Nationalpark is a territory where for protection purposes human activity is limited. Unlike natural reserves, wherethe activity of man is practically forbidden (hunting, tourism etc.), tourists and limited economic activity areadmitted on the territory of national parks. The results of supervision practice of the Interregional NatureProtection Prosecutor’s Office in the Moscow region have shown the concern of citizens and companieswith the issue of legality of advertising constructions on the territory of the National Park Losiny Ostrovbordering Moscow Automobile Ring Road. The subject matter of the prosecutor’s investigation was theinstallation and operation of advertising constructions. Detailed analysis of the current legislation on advertisingand nature sites under special protection provides grounds to conclude on the possibilities ofinstalling advertising constructions on the territory of nature parks in case of observing certain conditions.Installed advertising constructions may promote the idea of careful attitude to environment as the majorityof advertising constructions provide information on the National Park Losiny Ostrov. The conclusions ofthe paper are confirmed with the case practice of arbitration courts at various levels. |
Law in the modern world
|
130–148
|
Temporary admittance is a common in international trade customs procedure. It is an integral part ofmodern trade fairs, international transport operations, international academic and cultural exchanges,international sports contracts and tourist exchanges. The paper features temporary export in customslaw, differentiates between temporary export in customs law as a foreign trade operation involvingvarious customs procedures: temporary admittance of a product, product processing on customsterritory, storing products at the customs or vacant warehouse etc., and the specific customs procedureof temporary export (admission) under which temporary use is provided for a set period as to foreigngoods at the customs territory of the customs union. The paper examines the system of legal regulationfor the customs procedure of temporary admission represented by three levels: international law(Kyoto and Istanbul Conventions, Convention on ATA carnet), supranational (Decisions of the EurasianEconomic Commission) and national (customs legislation of the Russian Federation). The mainconditions are specified for the products subject to the customs procedure, temporary admittance(identifying temporarily imported goods, absence of such products in the list of the goods forbiddenthe customs procedure of temporary admittance), limitations in the use and disposition of temporarilyimported goods (operation to save goods, to maintain and other operations not violating the principle ofimmutability principle for goods; etc.). Some provisions of the customs legislation have been studied,in particular on the period of temporary admittance, possible termination of the customs procedure andits completing. The paper analyzes tax rules applied to temporarily exported goods, two tax modelsof temporary admittance (of complete and partial clearance), conditions of obtaining tax exemption,ways of non-recurring and periodical payment of tax duties and taxes, terms of customs payments,administrative and judicial practice on these issues; etc. |
|
149–165
|
The increasing migration of population in the world is one of the urgent international problems. Statesmake efforts to counter the illegal migration and to help people seeking asylum. This problem is themost challenging to tackle in the sea. The article reveals the contents of international cooperation and therole of international law in this field. The specific features of tackling illegal migration are analyzed within thevarious marine spaces: in inland waters, in the territorial sea and in the open sea. The issues of internationalcooperation on suffering refugees and other migrants in danger on the sea have been studied as well.International legal and organizational issues facing the world community are introduced and their separate solutions are offered. In the authors’ opinion, the activities of states regarding migrants should be carriedout in compliance with their legal status and particular situation. In any case, the migrants’ status must bedefined not on the sea but on the shore. If some people are in danger, they must be helped notwithstandingthe legal status of the persons being rescued. Measures of criminal liability and other measures accordingto the legislation of states and international commitments must be applied to illegal migration organizers. Itis important that the rules of international law, international organizations and international bodies recommendationsthat deal with the problems of migration should be carried out at the national level by means ofupgrading related laws. It is also important to work out and to upgrade the subordinate regulatory legal actsconcerning the questions of illegal sea migration counteraction, measures taken towards refugees and otherasylum seekers, being present on board of the ships in distress. Accordingly, the issue is to be solved as tothe attitude of states towards the migrants on board of the watercraft that do not comply with the seafaringsecurity requirements that means that they are potentially in danger. |
Law in the modern world
|
166–176
|
Corruption as a global challenge has been a concern for academia and international organizations —the United Nations, European Council, Commonwealth of Independent States, etc. Beginning with the second half of the 20th century, special anticorruption resolutions were adopted, states concludedconventions specifying the major approaches to the concept of corruption. The study of the provisionsof international legal acts shows that international community has not developed a single definition forcorruption. On the basis of legal definitions of corruption, lists of corruption acts in context of the provisionsof the most significant international legal acts which created the basis of interpreting corruption,an attempt has been made to draw up a list and content of the material signs of the social and legalphenomenon. As significant signs of corruption, the author identifies the common hazard, sphere ofexistence, object matter of corruption, subjects, corruption of service (official) powers and administrativestatus. The specified signs are conditioned with a narrow or wide approach to understanding thissocial law phenomenon. Settling this sign of corruption as a common hazard is typical of the internationaldocuments of the Council of Europe and Commonwealth of Independent States. As to the UNdocuments, this sign is stipulated only in the United Nations Convention against Corruption (2003). Asthe domain of corruption, international acts stipulate private and public sector. The subject matter ofcorruption is various benefits of property and non-property nature. The author shows the trend of transitionfrom narrow to a wider interpretation of corruption by including besides bribery and graft variousabuses of official position for lucrative purposes or due to personal interest as well as widening the listof the subjects of corruption. |
|
177–188
|
The paper features the concept of self-regulation in cyberspace and justifies its advantages over thestate regulation model. The paper also examines international law documents mentioning the necessityto keep the open and universal nature of the Internet and encourages various forms of cooperation between state and the parties interested in developing standards, norms, rules and strategies in thisfield. Own definition of self-regulation in cyberspace has been formulated, with the advantages of suchlawmaking. Besides, the paper contains references to recent reports of international organizationsand works of scholars confirming the efficiency and a growing role of self-regulation in cyberspace.The author stresses that the concept of self-regulation is not brand-new though not having deservedappropriate academic attention in the international law theory. The paper touches upon traditional forinternational law concepts of sovereignty and territorial jurisdiction. These are the conceptions which inthe opinion of the author decrease significantly the flexibility of states in terms of the changing environmentof the technology oriented world. Fragmented regulation of cyberspace may cause the divisionof the global net into separate nets administered by different national laws of a local net, which differssignificantly from the existing model of the Internet. It is crucial to stress the consistency of regulatoryprescriptions with the interests of immediate users. The emergence of the new phenomenon in internationallaw should be accompanied with the development of the brand new bulk of legal norms and standards.Uniform prescriptions for all the spheres of interaction of international law subjects cannot exist.Moreover, it is impossible to impose administration models of the past centuries on the on-line spacepossessing absolutely different features. Hence, self-regulation is presented in the paper as a form oflawmaking in information sphere capable of responding changes in legal relations in cyberspace. |
|
189–203
|
The article deals with three main challenges to labour law referring especially to the German experience.The world-wide market induced enterprises to relocate their production and to reduce labour costs at home.In Germany, a quite indirect way of exercising pressure on the workers was developed; counter-measureswere rare and did not really change the situation. TTIP and CETA will worsen the situation because nationalsovereignty in social and environmental questions will fade away. The second challenge comes from inequalityexisting among workers as well as in society as a whole. There is a scission between very wealthypeople on one side and people becoming poorer and poorer on the other side. Labour law has not yetdeveloped the instruments to realize more equality among workers but some ideas are discussed. The thirdchallenge is the digitalisation of many activities; they are no more bound to certain places or certain timesof the day. The “freedom” to work at any moment and at any place entails very long working hours, work atnight and work on Sundays. Legal rules on working time lose more and more there importance. A solutioncan be the right of workers´ representatives to discuss the tasks given to individual workers, but other meansare examined in the article, too. The internet makes crowdworking possible — a new form of work which iscurrently not covered by labour law. |
|
204–219
|
Electronic contracts present trade law scholars with a multitude of issues concerning international privatelaw, arising from the peculiarities of the online environment. However, as in traditional paper contracts,directives, model laws and conventions governing electronic commercial transactions still leave open suchan important question as when is an electronic contract concluded. This article focuses on the offer andacceptance requirement using a comparative approach to explore how this issue is addressed in Russia aswell as in other civil- and common-law jurisdictions. The paper compares different regulatory approachestaken by the EU and US on the formation of electronic contracts, highlighting their differences and the progressmade towards convergence and consumer’s protection. The relevant law for each country is discussedin relation to two types of transactions: those concluded between qualified professionals or traders, i.e.so-called Business-to-Business (B2B), and those between qualified professionals and consumers, namelyBusiness-to-Consumer (B2C). |
Book review
|
220–223
|
Review of a monograph by Rusinova V.N. Human Rights in Armed Conflicts. Moscow: Statute, 2015,384 p. |
|