|
Legal thought: history and contemporarity
|
4–14
|
The author examines the current Russian civil law with a focus on a key principle of bona fides (goodfaith). The appearance of the principle is appreciated as a guarantee of stability and social orientationof the law. By making a brief historical overview, the author supports the normative consolidation ofthe principle, which is declared in the Conception of Civil Legislation. Besides, the author stressesthe principle in question not only for the legal regulation of property and binding relations but alsothe practical rationale of the principle as a pillar of civil legislation. Food faith is defined by the authoras an intention of a party to a civil transaction to prevent at a maximum the possibility of violation byconduct of legal rights and judicial interests of other parties, perform their rights strictly under thecontent, scope and purpose. Besides, the author takes up the comparative analysis of good faithto show that the concept covers mostly reasonableness and fairness of the actions of the parties tocivil relations. At that, the author notes that non-inclusion of the principles of reasonableness andjustice to the pre-requisites of civil law deems a justified classified default. The author concludes with remarking a tendency of judicial practice to broaden the application of the good faith principle. Thelatter seems relevant to court only if it cannot deliver a fair decision only by interpreting and applyingthe existing the applicable rule of law. |
|
15–30
|
Russia has a certain experience of carrying out the legal experiments according to the formal rules.However, nowadays this form of lawmaking is not used to the full, while it could be useful for makingthe legal system better. There are a number of the situations when the legal experiment shouldbe conducted: if there is no regulation at all; if the current laws are not preventing legal experiment;finally, if a proposed regulatory framework is to repeal the existing laws. We believe that the legalexperiment would be best situated and effective when the present social conditions in an area andrespective laws are considered to be acceptable, but the suggestions are made that modificationof legal rules could trigger a new positive or even groundbreaking effect. In other cases, the legalexperiment would be ineffective or causing negative effects. Besides, there also some conjuncturefactors that may stimulate to use legal experiment. For example, it is a complicated investment situation.It forces to create law institutions can be used to attract investors. To achieve that goal, itwould be sound to use the form of legal experiments unless there will be a political decision to putthat changes into practice in the scale of the whole country. One of the options for the legal experimentcould be a progressive withdrawal of governmental regulation in specific area to give place forself-regulation of the business entities. The other option where legal experiment could be valued isapprobation by the Russian regions of the bills brought forward by their legislatures. Taking a comparativeapproach, we may see legal experiments are now widely used in France. There, they areenshrined into the Constitution and organic law and were several times the issues of constitutionalcontrol. In France, the legal experiments are used as a tool of cutting the red tape. |
|
31–42
|
The paper analyzes the increase in the number of criminal law prohibitions, constructed using administrativeprejudice as a trend in the Russian Federation Сriminal Code. Currently, the Special partof the Code contains nine articles with such prohibitions. According to the author, all the introducedcriminal law prohibitions with administrative prejudice differ in their design features. The implementationof some of them causes serious difficulties in law enforcement practice. It is concluded thatthe use of administrative prejudice in the design of criminal law prohibitions should be scientificallysubstantiated. Besides, along with the practical problems of applying the relevant criminal law prohibitions,there is a problem of the administrative prejudice interpretation. In the doctrine of criminallaw, some scholars in determining administrative prejudice attempt to create only the concepts ofcriminal law (sectoral) concepts, other scholars use mostly theoretical constructs. Defining administrativeprejudice, scientists also interpret differently its legal nature and essence. Some of them see itas a phenomenon exclusively of law enforcement practice, others tract it primarily as a phenomenonof legal (legislative) techniques. Administrative prejudice is defined by the concept of prejudicially(legal) relationship, specific relationship, part of the process of proof, legal rule, a special way ofverifying facts, a legal technique etc. From the point of view of author, the best solution is consideringthis legal phenomenon as a special means of legal techniques along with legal axioms, presumptionsand fictions. This interpretation of administrative prejudice reflects its specificity in a narrow sectoralsense. Besides, this legal phenomenon can be defined in a broader sense, reflecting primarily itscross-sectoral nature of the position legal (criminal) policy. From the position of the approach, thescholars point out that administrative prejudice is a special relationship of criminal and administrativelaw, means of criminalization and decriminalization, means of preventing crimes, means of combatingcriminality, etc. |
|
43–53
|
Moral rights are often analyzed in the context of protection of author’s personal interests only and, asresult, this theme attracts attention of researchers quite rarely. However, in the modern informationsociety moral rights perform number of important roles. The basic moral right function is identificationof a person as a creator of certain work. This acknowledgement is very important for an author,because it influence on his social status, profit, etc. On the other hand, the author’s identification isnecessary for normal use of a work, because any economic turnover requires identification of objectinvolved in it. On this basic function, some additional functions are based, in particular, stimulationcreative activity, identifying of characteristics of the work, prevention of unauthorized changesof the work, protection of culture heritage. At the same time, implementation of these functions indifferent countries depends strongly on traditions and peculiarities of the legislation developmentin this country. For example, in continental system of law “romantic” conception of copyright wasimplemented, which was based on relation to an author as a creator “inspired by the heaven”, whilein anglo-saxon system of law copyright was an instrument for organization of economic exploitationof works. In the article functions of moral rights and their place in the modern information society,as well as peculiarities of implementation in different countries, are discussed. Moral rights becamea guaranty that new ways of use of works will not be performed in the form that will break the authorand his work completely where he is not able to influence to conditions of use of his work and tocontrol correct identification of the title of the work, his name, prevent distortions of his work, etc. Inthe modern society, the role of state authorities increases as well, they should protect works whichare in the public domain, provide possibility of use of “orphan works”, etc. Regrettably, currently inthe legal doctrine there is no clear understanding of new role of copyright and place and role of moralrights, in particular. |
Russian law: conditions, perspectives, commentaries
|
54–69
|
The paper presents historical aspect of the development of elements of administrative justice inRussia. A wide historical period is studied beginning with the pre-revolutionary era and ending withthe present stage. Besides, the paper analyzes historical and legal documents on the issues underconsideration to generalize. The author points out that Russia has a rich experience of the instituteof administrative justice. The history of the development of domestic legislation administrativeproceedings and administrative justice can help in reforming the modern legislation in this area asmistakes of the past must not be forgotten and repeated in the future. The institutes of administrativeproceedings and administrative judgment are analyzed from its origins throughout centuries.The path of the system presents relevance as it identifies landmarks such as Law books of Ivan III(1497) and of Ivan IV (1550) (the beginnings of complaint procedure), Council Code (1649) (liabilityfor violating the petition proceeding) to the era of Peter the Great reforms and the reign of CatherineII (modern principles of submitting complaints against an official to a superior body), great reformsof Alexander II and of his monarchs successors (administrative proceedings), Rules of administrativecourts (1917), the great disturbances of October 1917 and the development of a new legal system(new detailed regulation of appellate proceeding, formation of theoretical fundamentals of claim asof an administrative law category) and modern conditions. The history of the institute of administrativejustice in Russia shows an important fact, i.e. no single view has existed on single, commonor generalizing attitude to its nature. No legal definitions of the major concepts exist, in particularadministrative process, administrative and jurisdiction case, administrative dispute, administrativejustice, administrative judgment proceedings etc. The same relates to the subject matter and scopeof the area. |
|
70–85
|
The article covers the peculiarities of legal regulation for shareholders’ and governance bodies’ ofa corporation in pre-bankruptcy period including the restrictions for carrying out special corporateactions and subsidiary duties imposed on the representatives of governance bodies in this period.Whereas the term pre-bankruptcy period is quasi legal and is frequently used in economic context,authors describe separately legal consequences of anticipation of bankruptcy and consequencesof appearance of formal signs of insolvency and grounds for legal action. The research containsaspects of correlation between corporate and insolvency legislation in order to reveal not sufficientlegal regulation of special issues where ambiguity of contents of rights and duties of participants ofcorporate relations cause risks of adverse effect such as liability or invalidity of a bargain. The articleintroduces examples of confusion of facts reflecting legal signs of insolvency and those irrelevant tothem as a result of insufficient attention to distinction between them in legal acts. The most importantproblems in this sphere of regulation are the following: exercising the right and carrying out theobligation to file a bankruptcy petition, uncertainty in the issue concerning a proper body responsiblefor making this decision, the absence of defined terms of filing the petition, ambiguity of the groundsfor the refuse to pay dividends within pre-bankruptcy period and violent construction of the notionsigns of insolvency for this purpose, unequal protection of the creditors’ rights in case of restrictionof shareholders’ rights to demand acquisition of their shares by the corporation. An important taskof the legislator is considering specifics of corporate relations during the pre-bankruptcy period andproviding guarantees of inadmissibility of bearing risks of violent construction of legal provisions byany participants of these relations. |
|
86–95
|
The article deals with the legal issues of classifying computer fraud. The author concludes that thearea as a clear sign of cyber-fraud consists of the activity (physical and juridical acts) related to functioningelectronic payment systems, e.g. distant financial operations involving bank cards, non-cashmoney etc. An offender may gain the illegal material profit (acquire illegal title to some property)in the form of bank money, book-entry securities, other property rights without going outside thebounds of the cyber-sphere. The author presents a great number of legal cases to support this thesis.At the same time, committing a theft of cash money or other material property usually requiresto combining cyber-activity with some physical interactions. It may include preparation of fictitiouswarrants, taking out cash-money, etc. In the circumstances where the criminal liability depends onthe form of illegal appropriation one can face a collision in legal treatment of criminal actions. Theauthor draws the conclusion that there is a possibility to find out the solution to the problem. The newprohibitions of the Criminal Code should be included in the existing system of prescriptions. A theftshould be treated as a theft even if it has been committed as defined in Art. 159.6 of the CriminalCode. For example, if a theft should be qualified actions of an offender who made some cyberoperationsbut did not get the possibility to control assessments, the thief has to make other physicalactions to appropriate it. Consequently, Art. 159 of the Criminal Code covers only the actions in thecyberspace that are enough to acquire title to some property and do not require additional activity inorder to appropriate (to hold back) these objects. The analysis of the court practice does not allowconcluding that the law enforcer has similar views on the issue nowadays. |
|
96–105
|
The article is devoted to criminal legal treatment of an intermediary at commission of corruptioncrimes in private and public sector. The object of the research is the rules of the RF Criminal Code,practice of the Supreme Court of Russia on their application, international legal obligations of Russiato fight against corruption, and the criminal law doctrine of the malfeasances in office. The subjectmatter of the research is the classification of mediation in bribery, commercial bribery, small briberyand small commercial bribery. The legal nature of criminal mediation, mediation ratio with instituteof partnership in a crime is investigated. The main points of view developed in the legal doctrine onthe issue of mediation in office crimes are analyzed. The international standards of criminalization ofmediation in bribery provided in the OECD Convention on Combating Bribery of Foreign Public Officialsin International Business Transactions are studied. Some recommendations about legal treatment of mediation in the corruption crimes are given in the paper taking into account an object of a crime, aform of criminal complicity and an orientation of intention of a guilty person. The question of volume ofincrimination deemed as unimportant for classification of mediation in small commercial bribery (Art.204.2 of CC). The author proposes a few additions to the resolution of the Plenum of the SupremeCourt of the Russian Federation of 09.07.2013 № 24 On jurisprudence on cases of bribery and of othercorruption crimes. These amendments are directed on interpretation of the new rules on mediationin office crimes included in the Russian Criminal code by the Federal law of 03.07.2016 № 324-FL. |
|
106–117
|
The article analyses the practice of discharging persons from criminal liability for fictitious registrationof Russian citizens at the place of stay or place of residence in residential premise in Russia orfictitious registration of foreign citizen or the person without citizenship at the place of residence inresidential premise in Russia, nor for fictitious registration of foreign citizens or persons without citizenshipby place of residence in residential premise in Russia. The main goal of the article lies in reasonedanswer to the question: what actions should a person commit to be recognized as a contribution tosolving crimes, as stipulated in Article 322.2 or Article 322.3 of the Criminal Code of the Russian Federation?To achieve this goal, the article examines the current law enforcement practices and opinionsof scientists, compares all the commentaries to the articles of the Special Part of the RF Criminal Code,which referred to the contribution to solving a crime. Key findings of the paper are the following: 1) fordischarging from criminal liability of persons on the basis of notes to Articles 322.2 and 322.3 of theCriminal Code it is necessary to consider only their actions taken prior to the initiation of the criminalcase; 2) Communication of reliable information when giving explanations to the law enforcement authoritiesand giving consent to the inspection of the dwelling during the inspection under Article 144of the Criminal Procedure Code of the Russian Federation are sufficient grounds for the mandatorydischarge of persons from criminal liability under Article 322.2 and Article 322.3 of the Criminal Code;3) reference to part 2 of Article 28 of the Code when discharging a person from criminal responsibilityunder the notes to Article 322.2 or Article 322.3 of the Criminal Code is forced and wrong (part 2of Article 28 of the Code of Criminal Procedure applies only to grave crimes, especially grave ones),but the law does not provide for any more or less suitable norms; 4) for the solution of the proceduralproblems, the Criminal Procedure Code must include other grounds for the termination of criminalproceedings — commentaries to the articles of the Special part of the Criminal Code. |
|
118–129
|
The article analyses the concept of the helpless state of a victim with regard to various sections ofthe Criminal Code of the Russian Federation, reveals differences in interpretation of the same term in judicial practice, difficulties in the application of criminal law. The author deals with the significanceof bringing the victim in a helpless state in case of crime commission; the value of the age of thevictim; the sleep state as a characteristic of helplessness. There is no common legal definition ofhelplessness and its characteristic which can be used to all crimes including this term. The helplessstate of the victim is described in Resolution of Plenum of Supreme Court of the Russian Federation«On application by courts of the Russian Federation of Criminal code in a case of sexual crimes andcrimes committed against the sexual inviolability of minors» and Resolution of Plenum of SupremeCourt of the Russian Federation «On application by courts of the Russian Federation of Criminal codein a case of murder». However, the helpless of a victim is an evaluative characteristic. Despite the factthat the term «helpless state of the victim» is identical in all sections of Criminal code, the content ofthe term differs significantly. It could be seen in a judicial practice. To avoid misinterpretation of law,to establish a uniformity of judicial practice the author comes to the conclusion about the necessityof giving detailed explanations of concepts and signs of helpless state of a victim. There are two waysto solve the problem: to make the term common to the whole Criminal code of the Russian Federation,or to use different terminology in different sections. These changes in the interpretation of thecharacteristic of helpless state of a victim will help to avoid difficulties in prosecution. The problemseems important, because we are talking about the crimes with aggravation, and the punishment forsuch crimes is much higher. |
|
129–139
|
The paper presents a critical analysis of legislative definition of abettor. Such ways of involving personsin crime committing as abetment, recruiting, bribery, threat, enforce and their relationship to eachother are examined. It was established that abetment and enforcement are single-level terms whichare part to the concept of involvement. Free will of an incited person is a criterion for distinguishing.Recruiting and bribery meet the criteria for abetment and based on a material gain promise. In turn,the threat reflects the essence of enforcement. A number of legal technique shortcomings are identifiedin the design of particular Specific Part provisions of the Criminal Code which violate consistencyusing of the considered conceptual construct. The author’s version is offered for amending p. 4 Art.33 of the Criminal Code taking into account the formed terms hierarchy. A possible qualification waysof actions both covered by a specific article of the Criminal Code and coinciding with the complicityinstitute provisions are considered. The lack of uniformity is revealed in the approach both at the levelof judicial practice and opinions among the scholars. The views expressed in the scientific communitypredominantly relate to specific crime components or groups of crimes. The paper emphasizes theneed for a single principle universal for all situations. The author concluded that the exclusive applicationof a specific article is unnecessary as in some cases it provides a smaller penalty than can beassigned to an abettor by using an article according to which they can be considered as accomplices.Another option would be an application of the cumulative crime institute. However, this qualificationmodel is unacceptable as it violates the principle of fairness in sentencing. In this regard, the only solutioncapable of ensuring uniformity in the enforcement is the exception of legally defined crimes whichduplicate provisions of incitement from the Special Part of the Criminal Code. The provisions of Chapter7 of the Criminal Code of complicity should be used in such situations. |
|
140–151
|
The article discusses the history of the legislation on privatization in Russia and features of use of privatizationas a regulator of the modern economic policy in the Russian Federation. The author shows the uniqueexperience of privatization in Russia in the 1990s, which allowed rapid creation of private sector in theRussian economy. Privatization as a paradigm of modern economic policies of developed countries hasnow become truly universal. Having replaced the strategy of state intervention in the economy, the policy ofprivatization rapidly covered the majority of foreign countries in the early 1970s. In Russia, privatization hasbecome one of the key elements in the system of market reforms and decentralization of the economy. Incontrast to countries with developed market economies, where the transfer of the state-owned property intoprivate ownership helped increase the effectiveness of individual enterprises, privatization in Russia wasintended to provide a radical shift in property relations. The article analyses different approaches to definingprivatization, including the approaches provided for in the legislation in regards to this term, highlightsthe main stages of the Russian legislation development in the field of privatization. The legislation on the“first wave” of privatization had been launched in 1992, when Russia began the “voucher” privatization(1992-1994) featured by using vouchers as means of payment (hence, this stage was called “voucher”privatization). A privatization voucher did not certify its owner’s right to the share in the public property.It was a kind of government security, the yield of which was dependent on the method of its use by theowner. By purchasing shares for privatization vouchers, their owners could earn income through the sale ofshares or in the form of dividends to be paid. After the voucher privatization, the government moved towardsa new model, known as “monetary privatization”. Main reason for transition to monetary privatization wasurgent need for federal budget revenues and the need for investment for structural transformation of theRussian economy. The article describes mortgaging auctions, which were among the non-standard formsof privatization used in practice at that period. Individual privatization projects can also be referred to thenonstandard forms. They included measures aimed at privatization of public property particularly importantfor the state, region or industry, and providing for the pre-sale preparation of the property with assistance ofan independent financial consultant. |
Law in the modern world
|
152–166
|
The establishment of the Court of the Eurasian Economic Union has marked another attempt of theEAEU members to set up a regional integration court. Russian legal scholars have embarked theanalysis of the Court Statute and Rules of the EAU Court, including the comparison with the powersof the EurAsEC court which had operated for three years and the competence and organizational activityof the EU Court of Justice. However, some issues remain outside the scope of research in particular,the motives guided by the EAEU members approving the decision on establishing Court andassigning it with a particular jurisdiction which significantly differs from the EUCH powers and EAEUcourt competence. The author of the paper attempts to compensate the gap by examining the Statuteof the EAEU court on the one hand as the reflection of concern and doubts and concerns of themembers on the one hand as the reflection of fears, doubts of the members as to the court being established,and on the other hand as a group of measures to control the new court to avoid or minimizejudgments unwanted for them. The author concludes that seeking balance between independenceand efficiency of the EAEU court and control over the court have not been strategically justified. Thefears and doubts of the states drafting the statute of the Court leads to weakening features of thecourt, which will be instantly seen in the quality of the process of Eurasian integration. The existinglimitations in the court jurisdiction do not promote to the development of its authority and legitimacyeither for potential appellants which may seek protection of rights in other international or nationalcourts to challenge the EAEU courts in EUHRC, WTO court, investment arbitrations or constitutionalcourts of the EAEU members. |
|
167–183
|
A single internal market is one of the main achievements of the European Union in the epoch ofglobalization. The EU includes not only a single market of goods and services but shares the valuesfixed in the EU founding treaties including The EU Charter of Fundamental Rights. In particular,respecting fundamental rights is part of the common EU principles of law. The aim of the paper isto specify the balance of the principle of protecting human rights and economic freedoms of the EUinternal market. The author identifies two aspects of the balance. The first aspect is that observinghuman rights promotes to the increase of effective functioning of the internal market. The secondaspect is the aim of protecting human rights may be a ground to limit economic freedoms on theinternal market. The research is based on the provisions of the following international law acts:European Union Treaty, Treaty of the Functioning of the European Union, EU Charter of FundamentalRights, European Convention on Human Rights, European social charter, and the case practice of the EU Court. The first aspect overviews the principle of the prohibition of discrimination, protectionof consumer rights, right to protecting private information, freedom of professional activity and rightto labour. The second aspect deals with the EU law which provides for the possibility to limit thefreedom of the internal market by member states to achieve some goals. In particular, the protectionof human rights is one of the grounds for limiting economic freedoms of the EU internal market. Thepaper stresses the decision of the EU Court on С-112/00 Schmidberger (2003) on the freedom ofmovement of goods. The case showed that the primate of freedom of opinions and gatherings is ajustification for limiting the freedom of movement of goods. Overall, it is impossible to state if theCourt consider either human rights or economic freedoms of internal market more. National courtsare given disposal in trying a case to seek a fairer balance between economic freedoms and humanrights. |
|
184–197
|
The article deals with understanding the right to strike as a human right, which was formed duringthe 20th century, its place among human rights, normative regulation of the right to strike at theinternational and national levels, as well as its role in labor relations and employment law. Thecenterpiece of the article is the study of crisis recognition of the right to strike, caused by theEmployers’ Group’s statements at the International Labour Conference in 2012. At this conferencethe Employers’ Group have declared its refusal to discuss list of countries, selected from the report arising from ratified at conventions, at the Committee on the Application of Standards of theInternational Labour Conference. The statement was motivated by the fact the right to strike is notexpressly recognized in the Convention-87, and the Expert Committee making conclusions about theviolation of the right to strike by some states– ILO members, got beyond its mandate. So was raisedquestion not only on the recognition of the right to strike, which was being developed for decades,but also about the mandate of the Expert Committee as a whole. To understand the scope of themodern recognition of the right to strike, a history of the adoption of the ILO standards concerningthe right to strike, and discussions on the content of standards are investigated. The article analyseshow the interpretation of Convention-87 developed by the ILO supervisory bodies, particularly bythe Committee on Freedom of Association and the Committee of Experts on application of theconventions and Recommendations; explores the limits of the mandate of the mentioned bodies inthe interpretation of the conventions’ content; the role of Employers’, Workers’ and Governments’groups in the recognition and development of these interpretations. Efforts undertaken inside theILO to overcome this crisis also were explored. |
|
198–204
|
The article considers theoretical issues of labor protection in the Russian Federation and in FederalRepublic of Germany. The analysis of different perspectives on the concept and content of laborprotection in broad and narrow sense, the protection of labor as a social phenomenon and as acomprehensive legal education, but also as an institution of labor law. Based on the wording of thelabour protection, provided by Article 209 of the Labour Code, the conclusion is justified that, underthe protection of labour the institute of labour law should be understood a body of rules of labour law,aimed at preserving the life and health of employees in the workplace. It is proved that in General,the norms of labour law that make up the Institute of protection, fix: 1) the basic functions of the statein the field of labor protection; 2) requirements to labour protection; 3) rights and obligations of theparties to the employment relationship in the field of labor protection; 4) guarantee the right of workersto labor in conditions meeting the requirements of labor protection; 5) system and legal statusbodies of management and control over labor protection; 6) a system of guarantees of the rights ofworkers on labour protection. These issues are addressed in a comparative perspective in Russiaand in Germany. Thus it is proved that the German law considers occupational health as a systemof measures aimed at ensuring the safety and health of workers. The article analyzes the followingcomponents of labour protection in Germany: general labor protection; social protection of labour;technical labour protection; medical protection of labour. The author formulates a conclusion thatthe concept of labour protection in German law is broader than in Russia, because it includes (in additionto the components related to the actual labor protection), measures to establish a reasonablemode of work, regulation of working time and rest time. |
|
205–222
|
The article touches upon the analysis of the constitutions of Arabic countries in terms of the status ofSharia as a source of legislation as well as practice of their interpretation by organs of constitutionalcontrol. The constitutions of practically all the mentioned countries declare Islam as a religion of thestate. Arabic lawyers understand this principle in a different way. According to the prevailing view,the assertion of Sharia role in the legal system demands its constitutional recognition as a sourceof legislation. This status is fixed in Arabic constitutions in different forms. Some of them provide forSharia as a main source of legislation using in original text in Arabic the term main source in indefiniteform without al article. Some countries have already acquired legal practice of interpretation of theseconstitutional norms while solving claims on legislation which contradicts Sharia and its conformity with constitution. For example, the Federal Supreme Сourt of the UAE concluded that constitutionalprovision about Sharia as a main source of legislation is addressed to the legislature and not to thejudicial bodies. That is why Sharia is to be understood as a material or historical source of law. At thesame time on the basis of the given constitutional norm together with provisions of laws about judicialpower, the organ of constitutional control of UAE justified the possibility of direct implementationof Sharia norm as an official source of law. Egypt has acquired its own experience of constitutionalassertion of Sharia status. The Constitution of 1971 initially considered the principles of Sharia as amain source of legislation. However, after an amendment adopted as a result of referendum held in1980, the modified constitution provided for these principles as the leading source of legislation.The Supreme Constitutional Court decided that this constitutional provision was addressed tothe legislature. As for contradicting Sharia laws which had been adopted before the mentionedamendment took place, they are still in force and confirmative to the constitution as Sharia was notconsidered to be the leading source of legislation at that time. The role of Sharia as source of lawhas its own features in both Saudi Arabia and Libya. In general, the place Sharia occupies in thelegal development of contemporary Arab countries depends upon a number of factors but its role isdetermined mainly by legislature and first of all at the constitutional level. |
Discussion club
|
223–236
|
The presented clause considers concept as founder not only of the best interests of the corporation(«shareholder value»), but also as maker of the public (social) good. The good governancemechanism allows to consider interests of shareholders, board of directors, employees and a society, reaching final efficiency: increasing shareholder value in the long term (welfare of shareholders),and also carrying out socially useful function (social civil responsibility). The clause purpose iscompany consideration through a prism of the founder of the best interests of the corporation byintroduction of the mechanism of good governance (a principle of team production theory). A teamproduction theory means the act of mutual cooperation in atmosphere of trust, mutual support,taking into account stimulation of participants at the decision of long-term tasks in the company(shareholder — board — employee). One of features of achievement of efficiency of team productiontheory is legitimate carrying out of corporate meetings considering interests of such participants asshareholders and members of board. In other words, the participant of the company realizes notonly personal and command responsibility at realization of the put questions. Besides, in clauseis considered the mechanism of «lock-in of assets» with which help it is possible to constrain theappetites connected with withdrawal of assets from the company from shareholders with short-terminterests. At the decision of the tasks connected with good governance, the company inevitablyfaces agency conflicts between shareholders and management. There are given conflicts as eachinterested participant has own economic interests indeed. As a result of such destructive conflictsthere is a destruction of the best interests of the corporation and social good. In other words, thecompany does not serve interests of a society, and, on the contrary, destroys representation aboutthe utility, acting in a role of «the Frankenstein monster» (creating roguish schemes, for the purposeof non-payment of taxes, reducing the staff of employees). Therefore, the author aspires to presentthe company as founder and the fair distributor of the best interests of the corporation and socialgood in long-term prospect (saving and investment technology), including use of the mechanism ofgood governance. |
|