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Legal thought: history and contemporarity
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4–21
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Currently, the choice of the proper approach to the methodology of legal researchis one of the main conditions for achieving truth in the scholar knowledge of state lawphenomena. The use of the systematic method in the framework of research provides newopportunities for the disclosure of its essence, content and advantages, including in thequestions of studying the responsibility of public authorities. The purpose of this article isto understand the feasibility of using the system method in studying the legal responsibilityof public bodies. The authors suggest the ways of improving the system of responsibilityof the bodies and specific recommendations for changing the current legislation. Themethods used in the article include general scholar (dialectical, logical, systemic) andspecial legal (comparative, formal, legal modeling, etc.). As a result of the analysis, theauthors formulated the concept of the system of legal responsibility of public bodiies,which is considered as a group of legal norms that have the quality of ordering, whichensures a relative independence and unity of this set, which is expressed in the consciousobservance and implementation of legal norms by public bodies, and, in case of violation,the need to undergo adverse effects in the form of deprivations. A number of functionsof the responsibility system with their brief description were highlighted in the paper. Inaddition, the article establishes specific elements of the system of legal responsibilityof public authorities. The analysis of sources allowed developing the structure of thesystem of legal responsibility of public bodies, which includes the following elements: thesubject of responsibility, the basis of responsibility, liability measures, the procedure forbringing to justice. A brief analysis of each element of the system with its signs is given.The article provides specific examples of the absence of individual structural elementsof the aforementioned system at the legislative level and describes the issues arising inthis connection. The authors come to the conclusion that a systematic approach shouldbe used as the basis for the methodology of researching the legal responsibility of publicauthorities, which will reveal new ways of developing the institution of responsibility inrelation to authorities. For citation: Malko A.V., Markunin R.S. (2019) The Significance of System Approach in Study of Public Bodies Liability. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 4–21 (in Russian) DOI: 10.17-323/2072-8166.2019.2.4.21 |
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22–44
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At the international level, relations in the field of biomedicine are governed by mass ofdocuments with statements containing in most cases principles and rules of bioethics,which are not compulsory. The conversion of these ethical norms to the level of nationallaw requires their proper legalisation, and the relevant international legal acts and first ofall the Convention for the Protection of Human Rights and Dignity of the Human Beingwith regard to the application of biology and medicine should be its reference standard.The analysis shows that only one of all bioethical principles, “beneficence”, stipulatedin Article 2 of the Convention (according to which “interests of society and welfareof the human being shall prevail over the sole interest of society or science”), did notreceive an adequate legal interpretation. The legal incorrectness of this article’s wording, dealing not with human rights, but with human interests and well-being, is one of thefactors that hinders the signing of the Convention. At the same time, this formulationis not accidental: the Convention’s intention not only to ensure the rights of subjectsduring biomedical researches, but also to protect those human interests, that maysuffer from the dehumanising effect of biotechnologies, was expressed in it. At present,this regulatory potential of the Convention, aimed according to its Preamble to protectbenefit of future generations, has not received proper development. In practice, thesearch for real guarantees from the negative impact of biotechnologies on the evolutionof mankind as a biological genus and social community goes in the field of the publicmorality, the corporate morality of the biomedical community and the individual moralityof researchers. Moreover, the latter is perhaps the main (though not reliable) defenceagainst the uncontrolled development of biotechnologies. In this situation, an importantdirection of efforts to find the optimal balance of legal and moral regulators in the fieldof creation and application of biotechnologies should be guaranteeing the rights ofresearchers to publicise their fears about the harm that biomedical technologies are ableto carry for the whole humanity. For citation: Lapaeva V.V. (2019) International Regulation of Biomedicine: Interaction of Law and Morality. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 22–44 (in Russian) DOI: 10.17-323/2072-8166.2019.2.22.44 |
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45–78
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The article presents the result of a comprehensive study of a new legal category — «lifeor health of animals and plants», which is present in several existing and projected federallaws. The purpose of the study, conducted using formal legal and systemic methods,as well as the method of modeling, is to find out what is the correlation of this categorywith the legislation and the legal system as a whole. It is proved that the investigatednorms contradict the constitutional provisions and the legislation of Russia, moreover,the fundamental principles of law relating animals and plants not to the subjects, butto the objects of legal relations. The design of the criticized rules is such that not onlypeople, but also animals and plants should be recognized as victims of an administrativeoffense and creditors for compensation for harm to life and health. The analysis of judicialpractice shows that these norms will not be useful in the protection of animals fromabuse, and objects of fauna, plants, forests and forest resources — from the destruction,illegal use and harmful effects of human economic activity, because these norms are notapplicable in practice. The reason for the penetration of norms on protection of «life orhealth of animals and plants» into the current Russian legislation is found — it is result ofbad implementation of the wording of some international treaties with the participationof Russia without taking into account the peculiarities of the Russian legal system. Theanalysis of publications on the topic indicates attempts of scientific substantiation of thedubious legitimization, which confirms the author’s hypothesis about the possible threatof deformation of the Russian legal doctrine. Errors that caused the criticized state ofcertain norms of federal laws are named and classified. Author justified the necessityof harmonization of terminology and criticized the content of individual norms with theprovisions of the Constitution of Russia and federal laws in the areas of health protection,environmental protection and natural resources, the protection of property rightsof physical and legal entities. In this regard the recommendation by the planning andcoherence of the work proposed at the stage of law-making, the use of legal technologyare given. For citation: Gorokhov D.B. (2019) Problematic Result of Domestic Lawmaking: Legislative Establishing Protection of Life and Health of Animals and Plants. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 45–78 (in Russian) DOI: 10.17-323/2072-8166.2019.2.45.78 |
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79–102
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Industrial revolution transformed idea of ways and means of production. Introducingrobots in the real sector of economy became inevitable process. Degree impact of theperson on production cycle decreases gradually and replaced by programs determiningbehavior of robots and a mentality of artificial intelligence by digital algorithms. Primaryresearches of artificial intelligence have found reflections in works of software engineers.The legal treatment of the nature of artificial intelligence and a regulation of his use became the big task for domestic jurists. The analysis of possible approaches to disclosure ofthe concept “artificial intelligence” as legal category and his ratio with the concepts ofrobot and cyberphysical system is provided in the article. Issues of liability for work ofartificial intelligence are revealed. The possibility of recognition for the robot (car) withartificial intelligence, status of a legal entity is studied. The possibility of recognition oflegal personality of artificial intelligence in cyberphysical space is separately considered.Work purpose is to offer ways of development of the legislation in the conditions ofdigitalization of Russian economy and introduction of artificial intelligence. Methods ofanalysis, synthesis, generalization, induction and deduction, interpretation, classificationand comparative methods were used. The research will allow to improve legal regulationof artificial intelligence in economy. Author’s look to disclosure of categories of artificialintelligence, intellectual systems and robot from a position of Russian law is offered.Mechanisms of attraction to legal responsibility of appropriate subjects of the rightare defined. Author allocates three stages: short-term, medium-term and long-termtemporary prospects of development of the legislation defining legal capacity of the robotand artificial intelligence in cyberphysical space, the maintenance of the cyberphysicalrelations and also the bases of attraction to legal responsibility of participants of theconsidered relations. Legal regulation of economic activity with use of artificial intelligencehas to be based on the principle of convergence of technology and rules of law. For citation: Laptev V.A. (2019) Artificial Intelligence and Liability for its Work. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 79–102 (in Russian) DOI: 10.17-323/2072-8166.2019.2.79.102 |
Russian law: conditions, perspectives, commentaries
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103–123
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Financial control is understood as a term that covers different control activities of thenational and local governments in the public finance sector by Russian scholars. Suchunderstanding demonstrates the use of the “sectoral approach” to interpret financialcontrol, while scholars put forward various positions explaining the inclusion of tax control,currency control and control (supervision) by the Bank of Russia, including control overmonetary circulation, in public financial control sphere. In past and nowadays, scholars inpublic finance law put forward the idea of integrating all types of public control under asingle law on national and local financial control. Meanwhile, this paper substantiates thefailure of the use of the sectoral approach to understand of financial control and justifies theuse of the substantive approach to development of a doctrinal concept of financial control.The closest examination of financial control and its correlation with currency, tax control andbanking supervision on subjects and objectives demonstrates their essential differences.Public financial control does not combine various types of control over public finance, butit is an independent type of control on a par with tax and currency control. The paper alsodifferentiates between control and supervision, primarily depending on the inclusion in thefinancial resources management. It substantiates failure of the proposition that an audit isa type of financial control. The study of the legal framework of financial control suggestsfinancial control is not only a public law category, but also private law category. It is carriedout by the owner of financial resources as an interested person. The author criticizes theidea that the term “budgetary control” should be established by the Budgetary Code ofRussia, because this change will only be editorial in nature and will not allow building a“single system” of public control in the public finance sector under a single law. For citation: Ryabova E.V. (2019) Public Financial Control: Searching of Nature. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 103–123 (in Russian) DOI: 10.17-323/2072-8166.2019.2.103.123 |
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124–138
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Unlike national security, the notion of financial safety got into the light spot of the lawscience only recently and today there is a discussion in the publications on the place offinancial safety in the legal regulation. By now, there are a few achievements of economicscience should be transformed in the legal form. Social science has ascertained theexistence of the interrelation and hierarchy «national safety» — «economic safety» —«financial safety», which means among other that advancing the financial safety does notmake sense if it does not promote the level of economic safety. Financial safety cannotbe a separated object of legal regulation outside this hierarchy. Procurement of financialsafety already exists in the framework of economic and national safety. Financial safetyhas all the qualities of strategic purposes: priority and “trajectory”. The understandingof financial safety as a strategic purpose resembles the ideas of cooperation and trust,which form the basis of contemporary model of safety. This already existing situationcan be reflected in the strategic planning documents. Including the financial safety instrategic documents as a purpose is one of the options for legal regulation of the financialsafety in Russia. The Federal Law “On strategic planning in Russian Federation” providesall the opportunities to solve all the tasks of legal regulation of financial safety in strategicdocuments. By this time there are not enough reasons for a special law on financial safetyas it can destroy the mentioned hierarchy and will fall out of the system of legal regulation. For citation: Kudryashova E.V. (2019) Financial Safety within Hierarchy of Strategic Planning Purposes of the Russian Federation. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 124–138 (in Russian) DOI: 10.17-323/2072-8166.2019.2.124.138 |
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139–162
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The article investigates role and significance of the Resolutions of the Plenum of theSupreme Court of the Russian Federation in Russian law system. The author does notlimit the investigation with the usage of only formal juridical approach and points out thenecessity of moving away from legal positivism and the expediency of using axiologicalapproach to the understanding of law while identifying the role of the PSC Resolutions inthis system. The analysis of the Legislation on the Supreme Court, conducted in orderto reveal the legal effect of the PSC Resolutions, illuminates that the generation of theprovisions of law during the exercise of powers of the Supreme Court is an objectiveprocess caused by the logic of existence and development of Russian legal system.The generalized focus of the interpretation of law and the broad range of conclusionsbased upon it are named as the main distinguished features of the PSC Resolutions incomparison with judicial cases and other judicial acts. The article refutes the idea that theprinciple of the division of powers is an argument against the recognition of the judiciallaw-making, and the thesis is the clarification of the Plenum of the Supreme Court are notconductive and obligatory, underline the existence of effective procedural mechanism thatassures the insistence of the PSC Resolutions. The article includes examples illustratingthat currently the Supreme Court creates law, rectifies legislative lacunas, creates newlegal norms, and its resolutions are actually the source (form) of civil procedural law. It isconcluded that the Resolutions of the PSC are clarifications adopted by supreme judicialauthority according to the constitutional and legislative empowerment, based upon thesupreme (in the hierarchic meaning) level of generalization and the analysis of the judicialpractice of the supreme judicial authority, with binding effects for all courts of generaljurisdiction and other participants of civil procedural relations. With the help of these actsof official law interpretation, the PSC creates new conduction regulations for indefiniterange of person by means of law interpretation and analyzing its meaning with the usageof analogy of law as a method of interpretation. The author also points out the necessityof legislative recognition of the Resolutions of the PSC as a source (form) of law in orderto eliminate problems arising from its application. For citation: Samsonov N.V. (2019) Resolutions of the Plenum of the Supreme Court of Russia as a Source of Civil Procedural Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 139–162 (in Russian) DOI: 10.17-323/2072-8166.2019.2.139.162 |
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163–188
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Court revision of cases on new or newly discovered circumstances, as well as verificationof court rulings by way of supervision, is an independent and exceptional stage of thejudicial process. Its exclusivity is due to the special grounds stipulated in law for thecancelation of judgment and the procedure for such a review. An analysis of Russianlegislation and practice of Russian courts reviewing cases on new circumstances witha particular foreign characteristic shows the significance of this stage of the process forrelations with a foreign participant (“element”). Since a foreign court decision may be anew circumstance in these cases, the article deals with the issues related to the effectof foreign court decisions on the Russian territory. The general tendency to expand andsimplify the recognition of foreign court decisions, obviously, expands the possibilitiesof its considering as new circumstances when reviewing court cases. This should notmean a reduction in the requirements for compliance with the conditions of recognitionestablished in an international treaty and in legislation. By the opinion of the authors,verification by the court in the process of reviewing a foreign court case considered asa new circumstance for compliance with the established conditions for its recognition isnecessary, regardless of whether the interested party filed objections to recognition orrequest for “confirmation” of the decision in Russia. The specifics of the proceedings forthe revision of cases under new circumstances, leading to a change in the act of justicewhich has been already in force in the Russian Federation (the decision of the Russiancourt) on the basis of a foreign decision, requires a special approach to assessing thedecision of a foreign court, considered as a new circumstance. The revision of civil courtsin one way or another connected with foreign law and order by Russian courts should facilitate the proper justice and fair judgments protecting the rights and interests ofparticipants in the judicial process, regardless of their citizenship. For citation: Marysheva N.I., Schukin A.N. (2019) “Foreign Element” in Revising Court Decisions Because of New Circumstances: Russian Legislation and Court Practice. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 163–188 (in Russian) DOI: 10.17-323/2072-8166.2019.2.163.188 |
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189–208
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The article deals with the content and form of presentation in the current Russian legislationof personal non-property rights of spouses. The purpose of the work is to determine thedirections for possible adjustment of these rights in terms of their functions to ensurethe possibility of executing personality in family relationships, the prerequisite of whichis to ensure the stability of the family institution. At the same time, historical, modeling,comparative law methods were used. In the presented form, they are not always aimedat preserving the family as a community; At the same time, when such an orientation ispresent, the norms are formulated too lapidary. Turning to the domestic legal history on this issue, we, of course, come across their regulation on completely different grounds. Asthe main result of the examination of the specialized literature on the issue, it is concludedthat the content of the personal non-property rights of the spouses in it is consideredat the very minimum. Predominantly considered the possibility of their regulation of themarriage contract, classification, application to protect compensation for moral harm.The analysis of judicial practice leads to a conclusion about the insignificant practicalsignificance of personal non-property rights in the current normative submission, whichallows us to raise the issue of their adjustment, focusing on their psychological impact.The appeal to the foreign legislation of the states of the continental legal system andsimilar historical experience allows us to find solutions aimed at strengthening the family,remaining in the same civilizational paradigm. It is necessary to raise the issue not only ofborrowing legal norms as such, but also of consistency, the priority of their representationin the law. The conclusion is also made about the preferential form of presentation ofpersonal non-property rights of spouses in the form of corresponding reciprocalobligations. Such rights should be a priority in the system of presentation. In addition, theauthor proposes to expand their content (understanding the controversy of a number ofproposals, the author proposes to make them a subject of discussion). Rights borrowedfrom other branches of law (to choose the place of residence and occupation) shouldtake the appropriate subordinate place and include reservations that are specific to thefamily relationship. For citation: Zykov S.V. (2019) Personal Non-property Rights of Spouses: Need in Legal Regulation. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 189–208 (in Russian) DOI: 10.17-323/2072-8166.2019.2.189.208 |
Law in the modern world
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209–232
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The subject of this article is the choice of governing law in respect of cross-borderclose-out netting. This instrument is used to reduce the risks associated with derivativefinancial instruments, repurchase agreements, securities lending and foreign exchangetransactions on international financial markets. Cross-border close-out netting is carriedout on the basis of standard master agreements that form a part of standard documentationdeveloped by international associations of financial markets participants. Also, theconduct of close-out netting following the events of default is prescribed by exchangerules. Some definitions of close-out netting contained in legislative and doctrine leadto the conclusion a conflict-of-laws rule on set-off may be applied to close-out netting.Since mutual offsetting of transaction claims is merely the final stage of the entire nettingprocedure, the qualification of the mechanism in question as a contractual method oftermination of obligations is more justified. This approach makes it possible to determinethe applicable law in respect of close-out netting carried out in respect of internationalstandard documentation, as well as of on-exchange close-out netting. However, theissue of governing law in respect of close-out netting in non-standard agreements in caseof absence of the choice of law by the parties remains unresolved. The rule on the choiceof law applicable to close-out netting is currently absent in the domestic legislation onprivate international law. The conflict-of-laws issue related to the application of close-outnetting in cross-border transactions was raised during the preparation of an internationalinstrument in the field of netting by UNIDROIT. However, the recommendations regardingthe applicable law were not included in its last version. Presumably, the lack of progress inthe development of a special conflict-of-laws rule on netting is to be caused by practicalreasons rather than by theoretical ones. Traditionally, over-the-counter close-out nettingis carried out using standard documentation containing provisions on the choice ofapplicable law, which are recognized by all leading jurisdictions. For citations: Klementiev A.P. (2019) Cross-Border Close-Out Netting and the Choice of Applicable Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 209–232 (in Russian) DOI: 10.17-323/2072-8166.2019.2.209.232 |
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233–254
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The article examines international legal and international acts developed within the framework of interstate associations and organizations that regulate the procedure for the examination of draft legal acts adopted by their bodies. The aim of the article is to develop new approaches to the examination of draft international legal acts as an important component of legal expertise. Based on the analysis of the legal framework, experience and practice of the examination of draft legal acts in international organizations and interstate integration associations, proposals and recommendations are formulated aimed at improving international legal mechanisms for the examination of draft legal acts of the Eurasian Economic Union, namely: the examination of drafts of international legal acts is by its content and methods of conducting a qualitatively different activity than the examination of drafts of domestic legal acts and requires special knowledge, including the development of an original methodology for the examination of international legal acts; the methodology of expert evaluation of draft international legal acts should include both legal and multidisciplinary scientific methods (economic analysis, social dimension, modeling, forecasting);the basic components of the examination of draft international legal acts are concluded in the conduct of: legal expertise, scientific and linguistic expertise, legal and technical examination. Other kinds of examination can be conducted with a clear justification of their necessity and expediency. In general, the examination of draft international legal acts is also necessary for acts adopted within the framework of the Eurasian Economic Union. The EEU is actively developing its international legal framework, its bodies make decisions that are mandatory for all the member states, including Russia, state authorities, business community, and citizens. For citation: Kashirkina A.A., Morozov A.N. (2019) Examination of International Acts Drafts: New Facets of Legal Expertise. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 233–254 (in Russian) DOI: 10.17-323/2072-8166.2019.2.233.254 |
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