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Legal thought: history and contemporarity
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4–19
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Lex mercatoria is a phenomenon magnetically attractive for contemporary scholars and practitioners.However, the more information about it exists or appears, less clarity and harmony the concept acquires.Lex mercatoria has both its ardent followers and skeptics seeking to debunk this sublegal myth.The article attempts to shift the perspective and approach of the study to the problems of understandingthe essence of the modern lex mercatoria in a systematic manner through the prism of the historicalprerequisites for the formation of a certain autonomous system of norms and conditions of moderntimes, marked by globalization processes. The author found it interesting to look at lex mercatoria incontemporary legal paradigm, considering the current understanding of those evolutionary processesthat occur in this area. The article examines the issues of institutionalization of lex mercatoria in themodern system of normative regulation of cross-border relations. The business community generates,uses and should qualify the significant pool of non-legal norms that, in fact, are riddled with crossbordertrade and other areas of cross-border communication. Modern lex mercatoria is changing alongwith international commercial arbitration becoming the law to arbitration or the law of arbitration. Theprogressive codification of lex mercatoria, that being a trend this stage of its development, in a sensechanges the nature of lex mercatoria, depriving it of the spontaneity and authenticity. “Super-new lexmercatoria” experiencing, according to some views, its third stage of development, steadily movesaway from its historical roots. To what will eventually lead such a rebirth: the degeneration or the formationof a global legal or sub-legal bulk? All these changes are reflected in law enforcement practice.In this regard, the article is of practice-oriented nature: most recent analyses of written and codifiedsources of lex mercatoria, prospects of application of norms of lex mercatoria by state courts and internationalcommercial arbitrations. |
Russian law: conditions, perspectives, commentaries
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20–31
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The article highlights the main areas of impact of anti-corruption institutions and phenomena on theRussian constitutional law. First, the modern constitutional law is affected by the global political theory.Over the past decades, it has gained a strong academic potential to understand the processes of corruption.Nowadays, its negligence harms the constitutional legal science. The next important area ofinfluence of the anti-corruption agenda on constitutional law and relevant legislation associates with theadoption of universal and regional anti-corruption conventions. Through their controlling mechanisms,they have gradually transformed domestic legislation. Furthermore, among European institutions we mustmention the European Court of Human Rights and the Venice Commission which are beginning to use theterminology and characteristics of the theory of political corruption. However, special attention is paid tothe cases when anti-corruption standards go through constitutional law from the Russian administrativereform. For the traditional and rather conservative domestic legal theory, this influence could be the mostevident and convincing one. The examples of such influence are the institutions related to conflict of interest,declaration of assets, ensuring transparency of authorities and others. And the most important that,transforming to the constitutional legal norms and institutions, they begin to prevent political corruption,which is one of the key problems of the Russian Federation constitutional order. |
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32–41
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The paper presents the historical aspect of the development of administrative justice in Russia. A widehistorical period is studied beginning with the pre-revolutionary period and ending on the present stage.Besides, the paper analyzes historical and legal documents on the issues under consideration to generalize.The author points out that Russia has a rich experience of the institute of administrative justice.The history of the development of domestic legislation administrative proceedings and administrativejustice can help in reforming the modern legislation in this area as the mistakes of the past must not beforgotten and repeated in the future. The paper emphasizes that the current administrative procedurallegislation provides for two procedures of reviewing decisions on administrative offences: prejudicialand judicial. At that, the choice of a specific grievance procedure of a decision on a case on administrativeoffence is provided to a person brought to justice on administrative case (delinquent). The historyof administrative justice clearly shows the fact: until now no even generalizing view to the nature of theinstitution of administrative justice has existed. No definitions are shaped for fundamental conceptsof administrative process, administrative and jurisdiction case, administrative dispute, administrativejustice, administrative legal proceedings etc. the same may be said on the subject matter, contentand scope. The main objective of administrative justice in any country including Russia is creating anopportunity to establish relations between the subject without authority and public power on a clear,expedient and legal basis. The development and improvement of administrative justice is an importantguarantee of rights for the subject without authority, a significant step as to implementing administrativereform in Russia. It should be noted that the ideas on establishing the system of administrative justicewhich would promote to the implementation of the RF constitution provision on the operative access tojustice but will free courts from irrelevant functions, which is justified and topical in the contemporarylegal setting. |
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42–58
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The administrative order of the civil rights protection has been legally acknowledged in our country foralmost one hundred years. Nevertheless, a serious doctrinal basis is still not developed for this legalbackground. Academic and commentary statements about this procedure are so fragmentary and contradictory,that essence and purpose of the protection, conditions and the spheres of its application,its efficiency and further use perspectives remain absolutely not clear. The purpose of the article is todistinguish between the administrative procedure for the right protection and the administrative protectionof the civil rights, and to define subjects, objects and the types of administrative procedure for thecivil rights protection. When preparing the article, the general research methods were used (formal anddialectical logic, comparisons, descriptions, interpretations), and specific methods of cognition wereapplied (legal dogmatic method, legal hermeneutic method). The research resulted in a conclusionthat unlike the administrative legal protection of the civil rights, which has a penalty, fine character,the application of administrative procedure of civil legal protection leads to a real restoration of theinfringed civil right through using protection ways are not the measures of administrative or other publicliability. The objects of civil legal protection exercised under the administrative procedure and coveredby Item 2 of Article 11 of the RF Civil Code, can be only infringed subjective civil rights. The subjectspracticing the administrative procedure for the civil right protection are exclusively the subjects grantedwith the public authorities. The mechanism of realization of the administrative procedure for civil rightsprotection will be different depending on the fact if the infringer of right has coordination or subordinationrelations with the aggrieved person. In the first case, authorized person forwards the claim to thesubject performing the protection as to a quasi-judicial body, in the second case, mentioned personaddresses a higher-level body or person complaining of the decision of the lower-level body or person.The revealed advantages of the administrative procedure of the civil legal defense over the court ones(simplicity, quickness, requiring no fee, possibility for the subsequent court control) should result in theextending of its sphere of application. The civil legislation needs a more detailed regulation of the civillegal protection methods that are to be used under the administrative procedure. |
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59–68
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The article investigates particular prohibitions and restrictions established by contemporary RussianFederation legislation in respect of status state corporations’ employees. The author analyzes theoreticaland practical problems associated with the implementation of these prohibitions and restrictions andexplores the difference between them. State corporations’ employees are the workers with a speciallegal status. As a matter of fact, the property of the state corporation is formed by the property of theRussian Federation. That’s why implementation of the principle of avoiding any form of corruptionoffenses and misuse of monetary resources (or other assets) in state corporations has the priority importance.The content of prohibitions, restrictions and duties that apply to employees of state corporationsare not the same for different categories of employees in the Russian Federation. It depends onthe official position occupied by the employee. Prohibitions and restrictions established for all and forspecial categories of employees are investigated in the article. The article examines the issue of maintainingthe balance between a control upon particular aspects of the activities of employees (impositionof limitations of their legal status which has the aim to exclude or minimize corruption) and interest ofemployees to obtain positive results in their work. Current prohibitions and restrictions on the rights ofstate corporations’ employees are based on characteristics of the legal status of a state corporationas a manager of public property. Regulation of state corporations employees’ labour and their legalstatus should be the subject of more serious and detailed research within the science of labour law inthe Russian Federation. The results may be used for improving the enactments or approaches to thepractical implementation of existing prohibitions and restrictions of state corporation employees’ rights.Keywordsemployees, state corporation, labor relations, prohibitions, restrictions, peculiarities in labour. ло |
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69–79
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An integral right of a person in the sphere of employment is the right to the choice of job. The right isimplemented by direct communication with the employer or by the assistance of employment agenciesor other similar bodies. Prior to the modern Russian Federation Labour Code, the former Code (KZoT)contained a special chapter Employment and Placement. The current Labour Code does not have thischapter. Legal, economic and organizational conditions of employment are determined by the currentlegislative acts, in particular by RSFSR Law On Employment of Population in the Russian Federationdated April 19, 1991. It contains the rules determining the rights of citizens in employment; legal statusof an unemployed person, powers and functions of federal and regional bodies; additional guaranteesof employment for certain categories of citizens experiencing difficulties with employment. In this regard,academic community arranged a wide discussion which focused on the employment in a particulararea. The interest to the discussion on the issue remains permanent in labour law. Hence the paperis devoted to the issue. The paper scrutinizes the legal nature of relations emerging under employment,the opinions of Russian researchers on this issue. The author’s contribution may be represented by thethesis that it is irrelevant to consider any of the current approaches to the legal nature of employmentrelations as a priority. The application of the idea was the core of the author’s research. |
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80–91
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In September 2013 Russia enacted a new law on education which introduced significant changes into thesystem of sources for Russian educational law. This article analyses the provisions of the education law that pertain to sources of educational law in the Russian Federation, the relationship between different levels ofnormative and legal regulation, including: international, national (federal laws and by-laws, legal regulationof relations in education at the regional and municipal levels in the Russian Federation), and the place oflocal normative acts within the mechanism for legal regulation of relations in education. |
Law in the modern world
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92–110
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Russian conflict of law rules determining choice of law applicable to marital relations related to foreignlegislations came into force in 1995 and in force for 20 years. Within Russian legal doctrine the area hasbeen researched in detail. Nevertheless, the analysis of conflict of law rules specified in the Family Codeof Russian Federation remains relevant due to a large-scale reform of the norms of international privatelaw in the Civil Code of the Russian Federation and the trends which are present in legislative regulationof international family relations in other countries. Chapter 7 of the Family Code The Application of FamilyLegislation to Family Relations with the Participation of Foreign Citizens and Persons without Citizenshipprovides a detailed system of rules determining competent law to regulate majour family relations. Mostconnecting factors are of bilateral nature and provides for the application of foreign laws. However, forthe past 20 years international family relations experienced new regulation, which is evident in nationalcodifications of International private law and in the European Union law. The current legislator extendsthe limits of autonomy of the parties in marital relations on the choice of applicable law, sets special connectingfactors as to cohabitation and partnership, fixes detailed and differentiated choice of law rule. Thepaper concludes that Russian conflict of laws on international marital relations approved more than twodecades ago requires significant update. The update is relevant to maximum transparency of volumesof conflict of law rules to make a more differentiated approach to marital relations, more detailed and arrangedin categories connecting factors targeting the most correct determining the law, closest to the relationand making a decision optimally meeting specific circumstances of cases, broadening the possibilityof the choice of applicable law by the parties on the issues of dissolution of marriage and family propertyrelations. All the problems concerning children applying law the most favourable for child should dominatein conflict of laws doctrine in such circumstances. |
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111–121
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The development of private international law and international civil proceedings law in the area ofconsumer protection does not solve completely the problems faced by the weaker party when makingcross-border consumer contracts. Conflict rules and jurisdiction rules are addressed primarily to thenational court, but for economic reasons, consumers rarely seek protection of their rights in court if thecase is related to the legal orders of several countries. The solution of this problem lies in the developmentof more flexible, rapid and inexpensive way to resolve disputes out of court. The examination of theEU Directive on Alternative Dispute Resolution leads to conclusion that it only sets basic standardsfor the out-of-court consumer dispute resolution industry, but contains no specific procedural rules. Inaddition, the article provides a critical view of the EU Regulation on the online dispute resolution: Webplatformfor the consumer disputes resolution, created on its basis, has very limited functionality andessentially performs only mediation, facilitating the consumer to find the national alternative disputeresolution agency but not exercising proper arbitration of consumer disputes. Great hopes are vestedin the UNCITRAL Rules on Online Dispute Resolution, under development: in addition to the principlesand standards this document contains specific procedural rules. It is noted that the UNCITRAL Ruleswill be an important addition to the Regulation on online dispute resolution. However, in view of theuniversal international character of the UNCITRAL Rules, as a soft law act, they can be used not onlyin the European Union, but also in all other countries, where the law provides for the possibility ofonline dispute resolution. As an example of the successful online platform for the settlement of low value disputes the author analyzes the experience of the Chinese e-commerce portal. A study of itsOnline Transactions Dispute Rules confirmed that in comparison with the procedure for resolving suchdisputes at the state courts, online arbitration is a faster and more effective alternative. |
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122–131
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The subject matter of the article is the process of harmonizing close-out netting regulation and the mostimportant international standards in this area. Close-out netting is a contractual instrument for the terminationof obligations under a range of financial transactions that is widely used in international markets. Mandatorybankruptcy rules in many countries hinder close-out netting operation resulting in the need for adoptingnational laws aimed at the recognition and enforceability of close-out netting. Supported by internationalbodies in the field of financial markets regulation, international standards for the harmonization of close-outnetting legislation were adopted. The main objective of these instruments is the formation of model rulesand guidelines to be used by legislators and regulators in their activities. Model Netting Act, drafted andpublished by the International Swaps and Derivatives Association in 1996, became the first one in a rangeof such documents. Subsequently, the organization has published updated model netting laws in 2002and 2006. For eight years, these model acts were the only standards in that area and have been used for implementing netting laws in several key jurisdictions. Subsequently, renowned international organizationsin the field of unification of private law joined the harmonization process. UNCITRAL Legislative Guide onInsolvency Law (2004) and UNIDROIT Principles of Close-out Netting (2013) were adopted to put close-outnetting relations in order. All close-out netting instruments have similar scope (financial contracts) and arefocused on the restriction of certain institutions of insolvency law, such as the prohibition of set-off shortlybefore and amidst the bankruptcy process, the right to challenge or reject the execution of transactions aswell as imposing a moratorium on the termination of obligations. However, the UNIDROIT Principles can beconsidered as the most preferred tool for legislators and regulators since the document takes into accountthe interests of all the parties involved as well as the latest developments in the field of financial marketsregulation and financial institutions resolution. |
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132–143
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The author proposes three models of legal regulation of collective redundancies in foreign countries.They are characterized by both common and specific features. The common features are fixation of thecriteria of collective redundancies; preliminary consultations with trade unions or other representativesof the employees; notification of the state body on the upcoming collective redundancies; a notificationof the trade union collective redundancies; offer by the employer to the employee available for transferand the opportunity to be retrained. In turn, the characteristics are determined by the volume ofguarantees for employees in the sphere of collective redundancies. They range from the minimum tothe maximum. The legislation of the countries of the first model is characterized by an emphasis on the employer’s interests in the sphere of legal regulation of collective redundancies. It is shown in theabsence of statutory rights to the preferential right to stay at work and the right to re-employment. Itsubstantially weakens the protection of dismissed employees. Legal acts of the countries of the secondmodel are fixed peculiar to securing maximum guarantees in collective redundancies: the preferentialright to stay at work for some categories of employees and the right to re-employment. The legislationof countries of the third model is on border of the two concepts — flexibility and rigidity in the legalregulation of collective redundancies. It establishes guarantee for employees and employers in thefield of collective redundancies. The level of guarantees for employees in the third model in collectiveredundancies is higher than in the legal acts of the first model, but lower than in the second one. Itcould be concluded that the labour legislation on collective dismissals of foreign countries is always indynamics and aims to achieve a balance of interests of employees, employers and the state. |
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144–165
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The study aims at selected problems and specifics appearing in the field of revealing and presentingevidence regarding, and conducting investigation of, the crime of money-laundering. The knowledge providedin the study is based on the conclusions which were received at academic research project “TheDevelopment of New Methods Implemented in the Area of Seizing the Proceeds of Crime and CombatingMoney-Laundering” (VD 20072010819) run at the Police Academy of the Czech Republic. The presentedstudy deals, in a shortened form, with forensic characteristics of money-laundering and specifics of theprocess of evidencing and investigating the criminal activity. It focuses especially on the forensic featuresof money-laundering, situations arising in the course of evidencing, specialties of the object of investigation,and typical forensic traces of the criminal activity. The characteristic features of money-launderingare character and form of profits from predicative crime, methods of money-laundering, subject of crimeand motive. The process of money-laundering have three stages for transferring them to legal sector,there are: investment, separation and integration of profits from criminal activities. The main accent isgiven on detailed consideration of methods of money-laundering which are based on the practical informationcollected so far. For classification traces of money-laundering is necessary oriented on the threebasic components: character of predicative crime, form of criminal profits and subject, through are legalized.In article in a short form are described the features of investigation of money-laundering, the actsas concealment of traces, concealment of a source of an origin of the income, change of their type, legalizationprocess control. To basics for initiation of legal proceedings belongs information from the specialpersons, who know or must know about operations of money-laundering due to professional duties, andmust to report about that to law enforcement agencies. There are described the standard investigativesituations, investigative versions, including the organization and planning of investigation. |
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166–177
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The article explores that partnership as a form of relations between Britain and the Overseas Territoriesis of various and nominal nature. The political and territorial relations between the UK and the overseasterritory under consideration are examined is the paper as a unitary federalism elements. Having examinedthe provisions of the Constitution of Montserrat, 2010 in the part of the Governor of the status of theregulation, the Cabinet, the Legislature, it is emphasized that a special place in the constitutional systemof government of Montserrat is taken by a representative of the British Crown in view of the powers whichwill subject to the established by the Constitution to make key decisions in the sphere of the island internalpolicy (convening the Cabinet, its resignation, the dissolution of the Legislative Assembly, law-makingfunction and others). This provides mechanisms to prevent the concentration of powers in the jurisdictionof the Governor. In particular, a significant role in the formation and implementation of the constitutionalcourse is assigned to the Prime Minister and the Legislative Assembly the recommendations of which aresubject to implementation in ordinary conditions. The theses are formulated on the advisability of furtherregulation of the competence of local public authorities in Montserrat and Governor, respectively, specifyingthe content and procedure for organizing and conducting the proceedings based on a considerationof questions on the resignation of the Cabinet, early dissolution of the Legislative Assembly, clarify thecriteria for such decisions, the coordination of positions on the dissolution of the Legislative Assembly.The paper studies the question on the Cabinet of Montserrat in the UK Cabinet by including membersof cabinet representing particular territories. Besides, the article mentions submitting by the LegislativeAssembly to UK House of Commons data on its opinion on draft laws relating to the entire Kingdom andsubmitting by the House of Commons the drafts related to the interests of the Commonwealth to the overseasterritories. The paper specifies the advisability of further regulation in the Constitution as to organizingand holding consultations with public authorities of overseas territory on the matters concerning theirinterests, referendum mechanisms for the people of islands to participate in the decision-making processof public nature, including the early termination of certain categories of officials. |
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178–186
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World economic power is becoming increasingly dispersed, a process accompanied by a greater role playedby various international economic associations of states in regulating international economic relations. The article devoted to the fragmentation of international law demonstrates this kind of law can be grouped according to uncoordinated regulatory entities and proposes a solution to this issue. The factors in this fragmentation are analyzed through the prism of current processes in Eurasian regional economic integration.The approaches to coordinating the laws of regional economic associations with the regulations of theWTO are also reviewed. The new formats of regional intergovernmental economic cooperation in Eurasia,such as the Eurasian Economic Union (EEU) and the Silk Road Economic Belt (SREB) are analyzed. TheEEU and the SREB are presently the main drivers of the transformation of Eurasia into a zone of joint development.These projects share a common goal and can harmoniously complement each other, and theirpotential linkage makes possible the formation of a common economic space on the Eurasian continent.The Joint Statement on Cooperation on the Construction of Joint Eurasian Economic Union and Silk RoadProjects (signed by Presidents Putin and Li Xin on May 8, 2015) raises some serious issues. The main one concerns the comparison and further development of the EEU and the SREB and possible ways to have them complement each other in practice. At the Astana Club in 2015 three potential options of co-existenceof the projects were considered: bilateral connection (meaning that EEU countries would be free to decideon participation in SREB), linkage within an EEU-China format, and linkage within the Shanghai Cooperation Organization (the SCO). In this paper the author attempts to identify effective solutions to the problems surrounding this process. The conclusion is effective development of the new integration projects of Russiaand China on the basis of the SCO is optimal. A mechanism for international legal regulation of economic cooperation entailing a gradual economic convergence of Eurasia is proposed. |
Discussion club
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187–200
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The main emphasis of this article will be on the concept of state sovereignty in the conditions of globalizationprocesses and development of information and communication space. The paper presentsthe polarization of scientific approaches regarding the impact of globalization and informationprocesses on the concept of state sovereignty, questions about divisibility and restrictions of statesovereignty.The article criticized the postpositivist concept of sovereignty, which comes from the factthat the sovereignty ceases to be an essential feature of the nation-state in the context of globalizationand information processes, integration of states and their legal systems. The article also investigatesthe concept, justifying the need to review the concept of sovereignty and its limitationsin the modern world. The connectivity of states in political, economic, social and other areas havean impact not on the very sovereignty as a principle of international law but on the implementationof the sovereign rights of States. There is no practical and theoretical necessity to divide sovereigntyin different categories: economic, political, tax, network, digital, etc., taking into account theintegrity of the concept of state sovereignty. It should be added in this connection that there is no sense to categorize the sovereignty on many areas of its implementation as it is impossible to presenta full picture of all areas where the sovereignty may be realized. One more point to be made here isthe development of information and computer and telecommunications technologies, have an impacton the legal forms of realization of the state power. These factors have an impact on the realization ofthe sovereign rights of States which are implemented through a set of power — political power, jurisdiction.In this regard, the jurisdiction of the state and territory are challenges faced by States in order todetermine its jurisdiction with regard to network segments. |
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201–215
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The article is devoted to the comparative analysis of the concepts of information sovereignty of thestate (of state sovereignty in the information space) in the foreign Russian political and legal science, as well as their legislative implementation in the Russian Federation. The author described a cyclicchange of sovereignty and globalization trends in the legal regulation of information relations, includingthose existing at the present stage of sovereignty, doctrinal highlighted the problem of determiningthe nature and content of the category information of the sovereignty of the state, its difference fromthe traditional territorial binding national sovereignty. Based on the analysis of the Constitutional Courtpractice, the analysis highlights the properties (attributes) of the state. The paper consistently examinesforeign approaches to the definition of the information content of the sovereignty of the state in termsof development of information relations with the 1980s to the modern concepts of sovereignty and thesovereignty of the digital data, carried out their periodization, chronologically associated with the developmentof information technologies. The necessity of development of publicly-legal doctrine of the sovereigntyof the information, as well as the conclusion that the implementation of state sovereignty in theinformation space should be carried out by means of information and functions of the state informationpolicy, characterized by the existing scientific approaches to the content of these categories. Based onthe analysis of the Russian legislation, the analysis highlights the elements of the legal institutionalizationof state sovereignty, including the definition of its scope; attribution of sovereignty to the purposesand principles of the legal regulation in the relevant field; assignment of protecting the sovereignty ofthe powers of public authorities. Conducted on the basis of the abovementioned analysis of the keyelements of allocated federal laws in the sphere of information relations has shown the absence oflegislative institutionalization of information sovereignty of the state in these federal laws. To ensure theinstitutionalization of the legislative sovereignty of the state of the information substantiated a numberof suggestions for improving the federal laws in the sphere of information relations. |
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216–245
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Global accessibility to the Internet and the exponential growth of compute capacity have caused thespread of business models collecting and generating big data. Reliable intellectual analysis of data and computer-assisted teaching allows companies to offer tailor-made special solutions. The current algorithms of self-education enable to find accurate information online within seconds. However, the advantages may be neutralized by serious disadvantages. The recent high-profile M&A transactions indigital Internet markets raised the question on the potential influence on the competition merger andacquiring control over big data. Indeed, companies can involve advanced computer technologies tocoordinate business practices, impose abusive conditions for consumers, applying compelling marketpower to set higher prices or even possible closing the market for new market-players. Net effectsbased on the data tend to become stable promoting to the efficiency of the current market-players allowingthem to strengthen their positions as soon as the critical mass of users is reached. Compensatingthe advantages of big data by potential costs for society depends on the ability of antimonopoly bodiesand regulators respond to the new challenges of digital economy. It is possible to shape new more competitive adversary and dynamically developing markets with efficient and permanent innovations ora sharp growth of economic concentration leading to the abuse of market power and stagnation. Thepaper proposes the definition of big data and describes the main types of the influential factors andtopology of market big data ecosystem. The paper reveals possible problems for competition due tobig data and examines their potential influence on the efficiency of the current instruments of competitionand the main activities of antimonopoly bodies, struggling against cartels, evaluation of abuse by domination and control of mergers. |
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