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Legal thought: history and contemporarity
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4–25
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The International law, being the independent legal system, has essential peculiarities,which are not manifested merely by the availability itself of the core component — therelevant system of its principles. The article explores very specific aspect related to the“generally recognized principles and norms of international law” as a category of legalscience, in an atypical perspective of finding the origins of its inclusion into the Russianlegal system basing on the grounds of analysis of domestic law and effective trends ofinternational practice in this regard. The term and the category itself ‘generally recognizedprinciples and norms of international law’ have become an integral part of the Russiancontemporary jurisprudence and positive law in a whole due to relevant incorporationthereof into provisions of the Constitution of the Russian Federation, 1993. They constitutean important layer in the history of constitutional evolution of our state, which, however,has not yet received due attention in legal literature. Despite the wide-spread use of theafore-referred term in science and positive domestic law both in the Soviet Union andnowadays Russia, the scholars as far as the international law, have not till to date definedthe substance and scope of the ‘generally recognized principles and norms’ as part of thesaid system of law nor juxtaposed the same with other categories and notions immuneto International Law. Meanwhile, the said term continuously coexists in international lawand its research along with other concepts, also covered by the range of designationspertaining to principles — ‘fundamental principles’, ‘general principles of law recognizedby civilized Nations’, jus cogens, etc., which fact, in turn, requires appropriate orientation.The present piece, having relied upon the historiographical approach and theoreticalpositions substantiated by international legal science, is deemed to attempt to elucidatesome queries related to the core issues regarding the subject-matter of the article —the ‘generally recognized principles and norms of international law’– and its constituentelements, as well as its relationship and links with other afore-referred phenomena,i.e. “fundamental principles of international law”, firstly, and the norms of jus cogens(‘peremptory norms of general international law’), secondly. This approach allowed topenetrate into the essence of the analyzed categories. The outcome of the work of the UNInternational Law Commission (UN IL Commission) related to the topic of ‘jus cogens’ isa matter of special attention in the course of analysis. For citation: Anufrieva L.P. (2019) Enigma of the Constitution of the Russian Federation 1993: “Generally Recognized Principles and Norms of International Law”. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 4–25 (in Russian) DOI: 10.17-323/2072-8166.2019.3.4.25 |
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26–51
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The transition from a medical model of disability to a social rights-based model isbecoming a global trend of normative regulation. Updating the concept of human rightsinitiates a change in the perception of the legal status of persons suffering from mentaldisorders — traditional isolation paradigm underlying legal regulation should be replacedby an approach based on their holistic rehabilitation, including their professional one.Shortcomings in the implementation of institutional norms of the incapacity lead todisproportionate restrictions on the labor rights of persons in need of legal protection,then labor-law regulation is designed to ensure such persons full socialization and protection from discrimination. This makes it possible to put forward a thesis on theindependence of the labor and legal personality of persons recognized as incapable oftheir civil legal personality. The theory of the employment legal personality independenceof a person recognized as incapable by the court in conjunction with the adaptationmodel of disability raises issue of the rehabilitation possibilities by various forms ofemployment for people suffering from severe mental disorders. The paper analyzes thefeatures, related to the application of various forms of employment for such persons,in context of neoliberal, conservative and social-democratic models of social policy.Comparison of country data and the results of research conducted in the US, Canadaand Europe show the best rehabilitation potential compared to all other measures issupported by employment technology. In addition, this technology is fully consistent withmodern social concept of disability. A study of innovations related to the introduction ofthe accompanying employment institution for persons with disabilities showed that thepotential of this technology was not fully utilized by the Russian legislator. Main methodsof the study were a systematic and comprehensive analysis of regulatory legal acts ofRussia, as well as foreign countries and international organizations; comparative method;expert assessment method. The findings of the study are both theoretical and practical innature, and suggest some areas for improving Russian labor legislation on participationin labor relations of persons recognized by the court to be incompetent in the prescribed manner. For citation: Zaytseva L.V., Kursova O.A. (2019) Forms of Employment of an Incompetent Employee. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 26–51 (in Russian) DOI: 10.17-323/2072-8166.2019.3.26.51 |
Russian law: conditions, perspectives, commentaries
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52–75
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The article is devoted to the definition of the concept of “sexual harassment” and theevaluation of mechanisms to counter this phenomenon in labor relations. The need forthese mechanisms is due to the fact that in labor relations, their very infrastructure isinherently conducive to harassment, as the victim is usually in the service and (or)“space-time” dependence on the offender. Service dependence is due either to the directadministrative subordination of the victim to the source of the harassment, or to the factthat it can affect her career and other benefits associated with the work. The “spacetime”dependence is due to the fact that the victim cannot effectively avoid contactwith the source of the harassment by changing his or her location or time in a particularplace, because of his or her job responsibilities, he or she must be in a particular placeat a particular time. It is considered definitions of harassment behavior and proposesfour types of possible forms of harassment: assault, coercion, use and demonstration,considers the generalized practice of the United States on the qualification of behavioras a harassment and analyzes the norms of Russian law in terms of the availability ofadequate means to counter this threat. It is established that the current criminal, civil,administrative and labour legislation now does not contain effective methods of protectionagainst most forms of harassment. The author suggests regulatory incentives for moreactive involvement of the employer in countering harassment within the frameworkof labor relations (for example, the possibility of removal of the offender from work,transfer him to another job, dismissal for harassment as a gross disciplinary offense) andregulatory mechanisms for protecting the victim of harassment by means of labor law: the employer’s obligation to provide leave at the request of the victim, transfer it to anotheravailable job; the right not to be employed if the employer fails to take measures to protectthe victim from harassment, while maintaining the average earnings during the absence. For citation: Kharitonov M.M. (2019) The Concept of Sexual Harassment and Mechanisms to Counter it in the Labor Law of Russia. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 52–75 (in Russian) DOI: 10.17-323/2072-8166.2019.3.52.75 |
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76–97
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Since 2014 the issue of legal liability for violation of anti-doping rules had been throwninto sharp relief in Russia, when reports of the Canadian lawyer Richard MacLaren werepublished, which covered the cases of using manipulations with samples of Russianathletes. The consequences that nowadays manifest themselves in the Russian sportscommunity are off to be comprehended, and the negative impact they have had on theresults of our state’s domestic and foreign policy will only have an effect after a few decades.The exclusion of national teams from participation in international competitions, the massdisqualification of high-class athletes, the ban on holding of international competitionsin Russia is not a complete list of measures applied to the Russia by international sportsorganizations. The state is trying to level out the situation and one of the anti-crisis areasof focus is the revision of the anti-doping national doctrine and changes of the Russianlegislation aimed at upgrading of liability not only for the use of doping in sports, but alsofor encouraging such use, distribution of prohibited drugs among athletes and coaches.By virtue of these circumstances, the issue of the legal liability of athletes, coaches andother persons for violating of anti-doping rules appears to be particularly relevant. Forresolution of the above-mentioned problems, firstly, it is necessary to determine the typesof legal liability for doping, to determine the subjects of such liability, to investigate thetypes and conditions of the application of sanctions for such violations, as well as theestablished rules for appealing punishing court rulings. Notable in this matter is the factthat the anti-doping program has an international background and the main acts thatregulate the researched group of public relations are international acts (conventionsand codes) that take precedence over Russian legal acts, due to the ratification of thespecified international conventions by our state. The analysis will identify gaps in thedoping legislation and determine the prospects and directions for its development andimprovement. In process of research scholar methods were implemented: historical,system-structural, logical and dialectical (general scholar methods), as well as formallegal, comparative, legal dogmatic and other special methods. At the end of the article itis proposed changes to the Russian legislation For citation: Chebotarev A.V. (2019) The Liability for Violating Anti-Doping Rules in Russia: Issues and Prospects. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 76–97 (in Russian) DOI: 10.17-323/2072-8166.2019.3.76.97 |
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98–116
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The development of eHealth in the digital economy requires a comprehensive informationexchange between all stakeholders. This interaction is ensured through the interoperabilityof information systems, data, technical solutions, processes and management methods.In an interoperable information environment, a synergistic effect of interaction isachieved, in which each participant benefits from the use of data and increases theefficiency of their activities. Interoperability is necessary to create a single barrier-freeinformation environment based on the principles of openness, transparency, reusability,technological neutrality, user-centricity, information security and privacy. The articlereveals the principles of interoperability applicable to the field of e-Health with referenceto the experience of the European Union where the concept of interoperability has beenmost developed. Each of the principles is examined through the prism of legal issues thatneed to be taken into account during their implementation. Particular attention is paidto standardization, information security requirements (including the security of medicaldevices and applications), conflict resolution between the principle of long-term storageof data for reuse and legislation on personal data. The article points out the positive stepstowards the regulatory and legal support of the interaction of health information systemsin the Russian Federation. Thus, the Russian legislation provides the framework for developmentof the Unified state health information system (EGISZ). However, it stressesthe fact that interoperability should not be isolated (intra-industry). Interoperability in abroad sense means openness of interaction with other information systems (intersectoralinteraction), the architecture of which should also be built on similar universal standards.This purpose reasons the need to develop a unified strategy for interoperability in the RussianFederation. Such a strategy requires an integrated approach at the national level andparticipation of all stakeholders in its development and implementation. For citation: Zhuravlev M.S. (2019) Interoperability as a Factor of Law Development in the Digital Economy (eHealth case). Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 98–116 (in Russian) DOI: 10.17-323/2072-8166.2019.3.98.116 |
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117–137
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The article is devoted to legal nature of causing in criminal law. Penal infliction, being anindependent criminal phenomenon, is regarded from the point of crime, excluding criminalresponsibility or decriminalizing acts resulting in harm socially important and sociallysignificant changes in social relations protected by criminal law. It is differing concepts suchas «object of criminal legal protection» and «object of crime». It is stated that a criminalact leads to producing harm to the object of criminal law protection and the object of thecrime; for excluding criminal responsibility and decriminalization act — only in the objectof criminal legal protection. Socially significant harm as the object of legal protectionand social change in the object of legal protection recognized by the signs of causing. Itis proposed the terms «criminal consequences», «criminal result», «socially dangerousconsequences», «social threat score» to use in the context of signs of the objective sideof the crime and of crime; the terms «criminal injury», «threat of public harm» — signs ofthe object of the crime. It is formulated the author’s own definition of inflicting in criminallaw. The author’s version of infliction is divided into three main types: criminal infliction;non-criminal (excludes criminal liability and decriminalization) causing; mixed (special)damages. The basis of the classification is to establish the negative impact of the act isinflicting on the public relations protected by the criminal law. Criminal infliction meansact that is characterized by the signs of crimes and offences specified in the CriminalCode of the Russian Federation. Impregnable infliction consists of: for excluding criminalresponsibility acts is governed by article 10, part 2, articles 14, articles 20, 21, 28, 37–42of the Criminal Code, and decriminalizing acts that caused significant social harm andsocial change in the object of criminal law protection. Mixed causing consists from actscombining the characteristics both criminal and non-criminal types of causing. Mixedinfliction is presented by two differing types, that is mediocre and not careful causing. For citation: Yanina I. Yu. (2019) Concept and Types of Inflicting in Criminal Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 117–137 (in Russian) DOI: 10.17-323/2072-8166.2019.3.117.137 |
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138–159
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Ensuring the realization of the right to free movement became an integral attribute ofall democratic states today resulting in increasing number of participants involved ininternational migration exchange. The UN experts estimate that more than three percentof the population of the planet, i.e. 244 million people are migrants today. This fact shows atrend of globalization of the migration movement. At the same time, researchers of migrationprocess come to the conclusion that a global migration crisis takes place, because ofuncontrolled migratory movement causing a significant threat for the nation’s security ofthe hosting countries. At the same time, illegal migration is regarded as the most dangerousmanifestation of migratory movements that negatively influence on social and economicdevelopment of the states, and on crime rate. It is necessary to note that the developmentof the institutes of the restrictions of human right to free movement took place along with thehistorical process of the formation of this right and initially aims at ensuring national security.At present, one of the most effective ways of protection against the potential threatsconnected with foreign citizens staying within the territory of the country and violating thenation’s legislation is their forced expulsion from the territory of the Russian Federationwhich can be carried out in the form of administrative expulsion of the foreign citizens andstateless persons, and also in the form of deportation or readmission. However, despite all the existing differences these procedures have common features, including procedurefor detaining foreign citizens and stateless persons in the special institutions of the Ministryof Internal Affairs of the Russian Federation or its territorial body to administrative expulsionfrom the Russian Federation in the form of forced expulsion, or deportation or readmissionAt the same time the basic principles of keeping foreign citizens in detentiob facilitiesare legitimacy, humanism, respect of human dignity, personal safety and healthcare. It isconsidered the issues of legal and prosecutional protection and public control, as well asthe activity of the Russian Federation ombudsman for human rights to be the guarantiesof observing these principles. It is forming a reasonable conclusion that it is necessaryto continue the development of legal mechanisms of the restriction of the right to foreigncitizens’ free movement in order to ensure the nation’s security of the Russian Federation. For citation: Amelchakov I.F., Kataeva O.V. (2019) Expulsion of a Foreign Citizen as a Restriction of its Right to Free Movement and as a Way of Ensuring National Security. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 138–159 (in Russian) DOI: 10.17-323/2072-8166.2019.3.138.159 |
Law in the modern world
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160–180
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The grounds for the extraterritorial manifestation of state jurisdiction in the contextof the transformation of the perception of its boundaries. The trend of widespreadextraterritorial jurisdiction is losing its importance as a “last level” jurisdiction in themodern conditions, taking into account possibility of the establishing of extraterritorialjurisdiction not only in relation to crimes in the sphere of international law, but also inrelation to other public-law relations such as tax, antitrust, information regulation.As aresult of the study of current trends in the implementation of legislative, judicial, executivepowers of one state affecting the significant interests of another state, the author hasproposed to consider extraterritorial jurisdiction in dialectical contradiction. On the onehand the international principle of sovereign equality and territorial supremacy of statesdoes not allow the outside interference, and on the other hand the actual unauthorizedextension of the jurisdiction of one state in relation to another state takes place. Thecontradiction stipulates the development of restrictive mechanisms for the establishmentof extraterritorial prescriptive jurisdiction in the form of a close connection betweenthe applicable law and an appropriate relationship. The subject of the close connectionmay serve foreigners’ awareness of regulatory acts providing for extraterritorial scope.An illustration of the need to establish this restriction is the activity in the non-territorialinformation and communication space on the cyberspace platform that can be subjectof jurisdiction of any state in the absence of a relationship with the state of the courtand awareness of foreign law.The article also raises the question of the interrelation ofextraterritorial judicial jurisdiction and prescriptive jurisdiction that allows to establishbroad grounds of extraterritorial judicial jurisdiction in relation to cross-border private disputes. This is explained by the extraterritorial effect of private law applicable to theserelations. The article analyzes the close connection criterion as the basis of extraterritorialjudicial jurisdiction, which, in the author’s opinion, is more responsive to modern challengescaused by the rapid development of the information society and digital technologies. For citation: Terentieva L.V. (2019) Extraterritorial Jurisdictions of State and Perception Transformation of its Spatial Boundaries. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 160–180 (in Russian) DOI: 10.17-323/2072-8166.2019.3.160.180 |
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181–202
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The article provides a comparative analysis of the provisions of the 1919 Convention onthe Regulation of Aerial Navigation and the 1944 Convention on International Civil Aviation.The analysis identified imperfections of the 1944 Convention still remaining the majorinternational legal act on the regulation of air navigation processes. It is proposed recommendationsto improve key areas of international air law regulation. Special attention ispaid to the activities of the International Civil Aviation Organization (ICAO) in the developmentof draft international treaties, adoption of standards and recommended practicesaimed at unifying national air laws establishing permits for aircraft to enter other statesand regulate the procedure of designation prohibited and dangerous zones. In consequenceof the comparison difference in the legal status of annexes to both Conventionsmentioned is established. The problems of the international legal classification of aircraft,the legality of the use of weapons against civil aircraft that violate the state border orused for illegal purposes that are incompatible with the provisions of the 1944 Conventionare analyzed in details. The facts of the realization by coastal states of jurisdiction in airnavigation in the flight information areas established on the basis of the relevant regionaltreaties, have been studied as the confirmation of the international legal custom. The articlecontains recommendations for all users of the airspace to creation of a commoninternational legal regime of flights of aircraft, rocket launches, guided missiles, ascentsand descents of space objects. It is substantiated a necessity of determining internationallegal responsibility of states for damage caused as a result of an illegitimate act inrelation to civil aviation, by amending the 1944 Convention on International Civil Aviation.It is described possible international legal procedures for interaction between search andrescue and air navigation services of the states realizing jurisdiction outside sovereign territories, and makes the suggestions to bring them in line with practice of relief operationson the sea. Also the article focuses on analyzing issues of international legalregulation of investigations of accidents and incidents aimed at identifying true causesof the incident and communicating results of investigations to air transport operators andaircraft manufacturers to prevent similar catastrophes in the future. For citation: Abashidze A.Kh., Travnikov A.I. (2019) “Old” but Modern Problems of International Air Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 181–202 (in Russian) DOI: 10.17-323/2072-8166.2019.3.181.202 |
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203–219
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Republic of Germany, consisting of Christian Democratic Party (CDU, CSU) and Social Democratic Party (SPD), under leadership of Angela Merkel, has carried out numerous reforms in the area of criminal law. Not only have the penal provisions of the Special Part of the German Criminal Code (Strafgesetzbuch — StGB) been supplemented and expanded, but the basic provisions of its General Part, which are relevant and applicable to all criminal offences, have also been modified. This article presents the most important reforms. Not only are the respective motives of the legislator presented, but also the reactions of criminal science and practice. The aim is to critically assess the reforms and their impact. In addition, the article gives a brief outlook on the forthcoming German legislation in the current legislative period. The article concludes that criminal law reforms in the last legislative period mainly consisted of tightening and broadening criminal law provisions reflecting “actionism” and “populism”. The German Federal Constitutional Court is expected to review the constitutionality of several provisions. The German legislator failed to recognise that tightened rules would be ineffective in practice if prosecution did not become more effective and the likelihood of detecting crimes was not increased. In future, the re-elected Grand Coalition should take greater account of the findings of criminal science. One proposal in this context would be that the planned reform of the sanctions law for companies would also strengthen the rights of defence of companies. For citation: Wassmer M. (2019) The Latest Criminal Law Reforms in the General and Special Part of the German Criminal Code. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 203–219 (in English) DOI: 10.17-323/2072-8166.2019.3.203.219 |
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220–249
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The aim of the study is to analyze interpersonal conflicts (interpersonal law) in private international law (hereinafter — PIL) of Israel. Interpersonal law is a set of legal rules governing the position of different personal systems operating simultaneously in the same country. Israel is a country with a plurality of personal legal systems applicable to certain groups of persons depending on their religious affiliation. In Israel, religion is not separated from the state, so interpersonal conflicts there are particularly acute. Comparative legal, comparative historical, formal and logical methods, methods of comparative analysis and comparative law were used as the methodology of the study. The object of regulation and the scope of interpersonal law and PIL largely overlap. PIL and interpersonal law have a common historical function — to ensure the implementation of the principle of equality of all legal systems and the recognition of subjective rights legally acquired on the basis of a different legal order. Both PIL and interpersonal law are designed to facilitate and legitimize the joint life of different human communities separated by state borders, ethnic or religious affiliation. Analysis of interpersonal conflicts on the example of Israeli interpersonal law shows that the common origin of PIL and interpersonal law creates a strong degree of similarity between them and causes their internal relationship. For the resolution of personal conflicts of laws in the judicial practice of Israel general approaches, principles and instruments of PIL are widely used. Determination of the content of the applicable personal law and qualification of legal concepts are made on the basis of the theory of resolution of conflict qualifications developed in the PIL; one of the main connecting factors that determine the competence of religious courts and the application of religious law is the autonomy of the will of the parties. On most personal status issues, secular legislation has been adopted in Israel, but the main issues of personal status — marriage and divorce — remain outside the sphere of secular regulation. The absence of civil marriage and the restriction of civil divorce force people to seek ways to circumvent religious laws; the absence of an equivalent personal law for a “person without religion” discriminates people on a religious basis. It can be predicted that the forthcoming entry into force of the secular civil code will narrow the scope of interpersonal conflicts on personal status issues. For citation: Erpylyova N. Yu., Getman-Pavlova I.V. (2019) Interpersonal Collisions in Israeli International Private Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 220– 249 (in Russian) DOI: 10.17-323/2072-8166.2019.3.220.249 |
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