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2019. No. 5
Topic of the issue: Law in the Modern World
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Law in the modern world
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4–31
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The article examines the experience of introducing and conducting an assessmentof the regulatory impact in modern Russia. Revealed the reasons for the popularityof the assessment of the regulatory impact in modern Russia and the reasons for itsimplementation in norm-setting activities. It was noted that the main factors of such anactive introduction of the assessment of the regulatory impact institute in Russia are thelow quality of regulatory legal acts and pursuing a policy of careful spending of fundsfrom both the federal and regional budgets. The critical analysis of the findings on theconduct of the assessment of the regulatory impact, made by the Ministry of EconomicDevelopment of Russia and the regional ministry from the standpoint of identifying legalrisks. It is concluded that in modern Russia the tendency to increase not only the legislativeculture, but also the legal culture of society in general is already visible, since various civilsociety institutions participate in conducting public consultations in the implementationof ODS. The concept, types, causes of the genesis of legal risks are researched. Theauthor’s concept of legal risks is proposed. The role of legal modeling in identifyinglegal risks is defined and proposed the author’s concept of legal regulation model. Theexperience of identifying legal risks through ODS in the EU and countries of continentalEurope, such as: Germany, France and Italy, was studied. It was concluded that there wasa tendency towards convergence towards homogeneity of the objectives of conductingthe assessment of the regulatory impact, since many countries of continental Europein the national legislation institutionalize the determination of social and environmentalconsequences when conducting a prospective assessment of draft regulatory acts.Theproposal to change the approaches to the assessment of the legislation applied in Russiais justified, it is proposed to include the financial and economic rationale in the structureof the implementation of the assessment of the regulatory impact. For citation: Arzamasov Yu. G. (2019) Regulatory Impact Assessment and Risks in Law: Experience of Russia and Continental Europe. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 4–31 (in Russian) DOI: 10.17323/2072-8166.2019.5.4.31 |
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32–53
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Among the articles of the European Convention for the Protection of Human Rights andFundamental Freedoms, article 18 sets forth the bounders of limitation of conventionalrights. However, its practice for almost half a century of the work of the European Court ofHuman Rights did not constitute a percentage of the total amount of cases that it reviewed.As a result, there is no research literature analyzing the mechanisms of interpretationof the Court in establishing this norm. Meanwhile, during the period of the beginning ofthe 21st century, one of the most well-known cases on protecting the interests of highrankingpoliticians and heads of national corporations became one of them. Moreover,most of these procedures, which ended in the recognition of a violation of Article 18, wereestablished by the Court in respect of the former Soviet states: Russia, Ukraine, Moldova, Georgia, Azerbaijan, Latvia. As a result of the analysis of the case law of the EuropeanCourt, there are a number of features which characterize the process of proving Article 18of the ECHR. Among them is a subsidiary application of it in combination with others, a highstandard of proof based on the presumption of good faith of the state, as well as featuresof the object and means of proof. A thorough analysis of the case «Kurt v. Turkey» showedthe imperfection of the mechanism of a high standard of proof, leaving the complainantone-on-one with the national authorities of the state. Taking into account the requirementof applying to the European Court, it is only after exhausting the means of domesticprotection that the Court develops a practice in which the Applicant, despite everything,cannot prove its rightness simply because the offending state has the opportunity toconceal its «unfairness», which ends with a formal refusal to review violating Article 18.The features of the object and the means of proof largely predetermine the appearanceof the article under study in cases of persecution of opposition leaders, heads of stateand private corporations. In the Court’s interpretation activities, a mechanism is foundfor calculating the «conflict of state interests», formulated by analogy with well-knowninstitution of criminal law. For citation: Guzyi A.E. (2019) The European Court of Human Rights Interpretation of the European Convention Article 18: Issues and Conclusions. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 32–53 (in Russian) DOI: 10.17323/2072-8166.2019.5.32.53 |
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54–79
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The article examines the most important judgments of the European Court of HumanRights relating to the protection of labour rights. The author analyzed the cases wereconsidered in recent years under articles 3, 4, 8 and 11 of the European Convention onHuman Rights. In particular, the cases on the investigation of occupational accidents,prohibition of forced labor, protection of the private life of workers and of their right forfreedoms of expression and association are dealt with in the paper. Author positivelyevaluates that European Court on Human Rights has prepared a whole system of reviewing actions of the employer for a control over fulfilling by the employers theirs workingduties and functions (among control ways and means now it is possible to discover forexample videotaping, reviewing electronic post and phone talks, etc.) In present timesthe European Court on Human Rights looks at that control from the point of view of Article8 of the European Convention of Human Rights. The Court has formulated an opinionthat it has a sense for national judicial bodies follow the widened understanding of the Article in cases concerning issue of non-legitimate behavior of employers. Also majorityof the judges of European Court on Human Rights believe in necessity of the widenedunderstanding of such phenomena as forced labor and trade by human persons. Author issure that transplantation of that practice of the European Court at the Russian Federationsoil would turn to be quite useful for interests of most unprotected social strata/groups —that is, in particular, invalids, inner and foreign migrants. Object of author’s critic isoverall ban over railway strikes contradicting to norms of Article 11 of the Conventionas the European Court of Human Rights has claimed in the case Ognevenko vs. Russian Federation. For citation: Sychenko E. V. (2019) Contribution of the European Court of Human Rights to interpretation of Human Rights in the Sphere of Labor. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 54–79 (in Russian) DOI: 10.17323/2072-8166.2019.5.54.79 |
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80–100
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The article is devoted to the study of the value approach to the analysis of constitutionaldisputes in the practice of the Constitutional Court of Russia. The research objective isto identify the features of the balancing constitutional values in constitutional judicialpractice and to systematize the most frequently encountered options for balancing.For analysis system-structural, formal legal, comparative legal methods, methods ofinterpretation of law and forecasting were used. The study revealed the idea of a balanceof constitutional values as a principle of constitutional interpretation. It is indicated thatthe Constitutional Court of Russia plays a subsidiary role in relation to the legislator in thesearch and establishment of a balance of constitutional values. Balancing is one of themethods of constitutional interpretation. Russian and foreign doctrines converge in theidea of balancing as an element, method of a rational decision-making in the constitutionallegal dispute. Another similar element is the propensity for theoretical recognition ofequal importance, the absence of a linear hierarchy of values. As the empirical base ofthe study, the final decisions of the Constitutional Court of Russia in the period of 2011to 2017 were used. It has been found that the judgments of the Court most often refer tothe value of the rights and freedoms of man and citizen (Article 2 of Russian Constitution).Since these references do not always have a significant value for argumentation, theirtemplate nature is indicated. Practice allows arguing that constitutional values, asenshrined in the Constitution, should be protected and balanced not only by the effortsof the constitutional interpretation, but by the efforts of all branches of law. Maintaininga balance of constitutional values becomes the task of all law enforcement entities andcitizens. There are three frequently found balancing models in the Constitutional Court’sjudicial practice: based on hierarchical dominance; based on constitutional principles;delegated balancing. The main perspective of the development of balancing in judicialpractice is associated with the improvement of the principle of competitiveness in theconstitutional process. To do this, it is proposed to publish materials of constitutionalcases and to add sections in the structure of judgments. For citation: Anichkin E.S., Rydt Yu. A. (2019) Constitutional Balancing in Russia: Practice and Perspectives. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 80–100 (in Russian) DOI: 10.17323/2072-8166.2019.5.80.100 |
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101–120
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The article is devoted to the most urgent problems of the functioning of the system ofpermissible copyright restrictions in different legal orders. Based on the analysis of twolegal traditions the following conclusions can be formulated: in civil law countries theformation of a restrictive mechanism depends on such factors as the nature of the threesteptest (direct or indirect), the procedure for applying this test (cumulative or noncumulative),the combination of the main evaluation criteria (range of factors, compliancewith a specific goal, availability of the work, conscientiousness), availability of alternativetools; in common law countries the formation of such mechanism depends on theexistence of a general assessment rule (under the fair use doctrine this rule consists offour factors; under the fair dealing doctrine this rule is replaced by the fairness criterion),additional statutory and non-statutory evaluation criteria (protection of public interest,scope and nature of use, circumstances and purpose of use, the possibility of achievingthe goal in another way, etc.). The author comes to the conclusion that such factors asthe lack of a general rule or the possibility of its direct application; cumulative applicationof evaluation criteria; lack of additional criteria; closed list and excessive specificationof restrictions; limiting the number of goal and objects have a negative effect on therestrictive mechanism and its adaptability. The article also proves that the problem ofexcessive rigidity of the assessment system can be solved by the interpretation as well asusing additional criteria. The formation of a flexible restrictive mechanism simplifies theprocess of balancing private and public interests and updating the system of copyrightrestrictions. A special attention is given to the analysis of some features of legal regulationand to the problem of copyright limitations in the digital environment. For citation: Balabanova E.V. (2019) Permissible Restrictions to Copyright in Continental and Anglo-American Legal Traditions. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 101–120 (in Russian) DOI: 10.17323/2072-8166.2019.5.101.120 |
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121–147
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With development of cross-border private relations in the digital space, use of blockchaintechnologies can also become a means of protecting rights of intellectual property.Blockchain ledger can serve as an evidentiary base of originality, novelty of the objectof intellectual property, confirmation of the primary right of ownership and thus be ameans of protecting and using intellectual rights simultaneously in several states. Thattechnology can be used by developers of patentable objects, trade secrets, by creatinga digital record confirming ownership, existence and integrity of an object, or part of thepatent information on a specific date. Use of that technology is also relevant in the contextof a trademark protection system in cross-border relations and can be implemented toprovide trademark holders with safe means of proving the first and continuous use of thecorresponding designation. Copyright holders have opportunity to create an evidencebase in the blockchain-ledger, confirming their personal non-property, as well asexclusive rights, by depositing them in electronic form and ordering. Blockchain-registryalso provides fixation of the transfer of exclusive rights. In world practice, there is areverse trend of using patenting tools to protect technologies mentioned. The processesof harmonization of relations implemented by that technology also occur. The UNCITRALModel Law on Electronic Transferable Records of 2017 is being considered. The recordin the blockchain-ledger can be such an electronic transferable record, since it satisfiescriteria of the Model law. Use of blockchain technologies in cross-border relations, whichsimplifies and accelerates the interaction of subjects, also gives rise to a conflict of lawissues. A blockchain-ledger can be considered as a self-regulating system operatingon the basis of registry order, which can be designated as Lex Registrum. It seems tobe an emerging casual law order that can be selected by parties to private relationshipsusing that technology to implement them. Lex Registrum is not absolutely universal laworder. In each case, the implementation of technology mentioned, potential of which isnot fully disclosed, can form regulatory standards. However, the general conflict of lawsrules applied by court to find a competent law and order, taking into account the relevantstatute of the relationship (for example, real statute, intellectual statute) at this stage ofdevelopment of technology regulation cannot be replaced with Lex Registrum. For citation: Shakhnazarov B.A. (2019) Complex Interconnection of Blockchain Technology and Intellectual Property in Cross-Border Private Law Relations. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 121–147 (in Russian) DOI: 10.17323/2072-8166.2019.5.121.147 |
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148–166
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The article is devoted to problems of sectoral collective bargaining agreement’sregulation of co-determination. In modern Russian studies on labor law this themeis almost not examined. Methodological foundation of research is constituted fromgeneral science methods and special methods, includes: formal logical, analytical,comparative legal, historical and other methods. Main aims of research are assessmentof effectiveness of collective bargaining agreement’s regulation of co-determinationand elaboration suggestions to improvement of legislation. Author appreciates criticallyapplicable in labor legislation approach that implementation most of employees’ rightsin the sphere of co-determination is only possible if procedures of social partners’cooperation are regulated by sectoral collective bargaining contract, collective contractsand local normative acts. However, acts of social partnership solve this problem only insome sectors of the economy, such as mining and manufacturing industry, transport,car manufacturing. In addition, the lack of consistency between the norms of labor andcivil legislation also impedes the exercise by employees of their rights to participate inthe management of the organization. Thus, the stock transfer to employees provided forby the Federal Act of Joint-Stock Companies is not even mentioned among the formsof co-determination listed in chapter 8 of the Labor Code of the Russian Federation,but an indication of the procedure for sending employees’ representatives to collegialmanagement bodies of legal entities, partially regulated by this chapter of the LaborCode of the Russian Federation, is absent in the legal acts governing the activities of legalentities. In this regard, it is proposed to introduce the necessary changes into civil andlabor legislation. There are noted in article that Soviet labor legislation of 1970–1980s(as well as modern labor law of some European countries) bound administrations ofenterprises, organizations and institutions issued main local normative acts in commonwith employees. Modern Russian labor legislation provides for two methods of employees’participation in drafting of local normative acts — via procedure of taking into account ofemployees’ representative body or via reconciliation. But second method is used if it’sindicated in collective contracts and agreements but absence of coordination betweenlevels of collective bargaining agreement’s regulation impedes its usage. In conclusionof article author accentuates problem of declarative effect of the most rights in the sphereof co-determination and necessity of balance between state and contractual methods ofregulation this sphere of social relations. For citation: Kazakov S.O. (2019) Sectoral Agreement’s Regulation of Employees’ s Participation in Enterprise Affairs. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 148–166 (in Russian) DOI: 10.17323/2072-8166.2019.5.148.166 |
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167–198
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Dispute resolution in the Court of Arbitration for Sport (hereinafter: “CAS”) has certainspecificity that makes CAS different not only from other institutions for sports disputesresolution but also from commercial and investment arbitration. The following researchpaper brings light to such specific issues related to CAS as to presumption of innocence inthe area of sport, using different standards of proof (“comfortable satisfaction”, “beyondreasonable doubts” and “balance of probabilities”), issue of using evidence obtained in anillegal way in match-fixing disputes. The authors also referred to the issues of certain artsof evidence that would be unusual for commercial arbitration, but which are commonlyused in CAS, issues of not allowing new evidence in appeal proceedings, the issue ofnecessity to form lists of witnesses and experts at the earliest stages of the proceedings,issue of disclosure of evidence in CAS and possibility to use evidence obtained out of thegiven time limits. As for the methodology that the authors used, these widely spread inlegal research methods include analysis of international legal sources, analysis normsof sports bodies, a decision of disciplinary bodies and CAS awards, making conclusionsregarding certain issues and problems, defining the specificity of evidence and methodsof proving in CAS. The conclusions proposed by the authors made help to form newapproaches for implementation of a presumption of innocence principle in the area ofsport and show an attitude of sports organizations and CAS towards certain remedies. For citation: Vasilyev I.A., Kisliakova N.N., Yurlov S.A. (2019) Issues of Using Evidence and Process of Proof in the Court of Arbitration for Sport (CAS). Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 167–198 (in Russian) DOI: 10.17323/2072-8166.2019.5.167.198 |
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199–214
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Nowadays, private military and security companies (PMSCs) are playing an increasinglyimportant role in armed conflicts. In this regard, there are relevant questions about thelegality of their activities, as well as the ways of legal regulation. The article reviews thehistory of the appearing and functioning of PMSCs, analyzes the legal aspects which weredeveloped by the international community aiming the ways of legal regulation of privateand military companies, highlighted the most effective ways and means of regulatingPMSC. In some research by foreign and Russian specialists covering PMSCs activities inareas of armed conflict, it is emphasized the existence of serious and, in fact, intractableproblems of legal regulation of these commercial organizations that are currently operatingin a legal vacuum that goes beyond international law, laws of contracting states and statesof origin of PMSCs.An example of this can be the cases when the PMSC employees,being individuals working for remuneration, find themselves at the center of internationalscandals related to the executions of civilians, torture of prisoners, arms smuggling, childtrafficking, mortality and other crimes. Taking into account the fact that Russia still hasnot resolved the issue of creating a legislative basis for regulating PMSCs, the authorbelieves that as part of the work on solving the task posed by the leadership of our countryto create a legislative basis for regulating the activities of PMSCs, it is more rational toanalyze existing international legal instruments as well as foreign experience in the legalregulation of PMSCs, which, in turn, will contribute to solving the issue of the formationof a legal framework for the regulation of “private military power” in our country.At thesame time, it is necessary to emphasize that high-quality legal support for the activities ofPMSCs is a problem both of the states on the territory of which private military companiesoperate and of international law in general.The article reviews the history of the emergenceand operation of PMSCs, analyzes the regulatory and legal framework developed by theinternational community in the field of legal regulation of private military and securitycompanies, and highlights the most rational ways of regulating PMSC activities. For citation: Ryzhov N. A. (2019) International Practices Concerning Legal Reputation of Private Military and Secutity Companies. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 199–214 (in Russian) DOI: 10.17323/2072-8166.2019.5.199.214 |
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215–236
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Federalism, from one turn, does maintain much more opportunities for expression andpromoting of legitimate regional interests. However, from other side, federal form of stateorganization appears to be a solid factor that limits considerably a freedom of actionsof the central power that it is obliged to promote and protect overall national interestswithin the state and beyond of its frontiers. In the modern world, Canadian federalismis one from most famous and respectable state regimes. Under federal banner Canadapassed several stages of national development while demonstrating undisputablecapability for evolution and adaptation towards constantly changing social and economicconditions. Formerly a highly centralized state, Canada has transformed itself peacefullyinto a decentralized power within an old Constitutional Act. One of the issues standingperpetually in front of levels of powers is policy of its abundant natural resources. Thesubject of article is a research of ways and means of cooperation and confrontationbetween center and periphery over management of these resources. The study is basedof the methodology: formal legal historical, system analysis and dialectical one. Fromevaluation of flexible leadership over the field, author makes a conclusion about greatmeasure of efficiency in the leading a highly decentralized federation on the base ofthe rule of law and clear-cut political will completely loyal to all existing legal limitationsand prohibitions and bright cadres capable to implement skillfully and decisively everylegitimate way for public purpose. Only such model of state leadership have a future in themodern civilization. Therefore the democratic ways and means, elaborated by Canadiansocial fabric and state bodies, do deserve strong attention of the Russian explorers andpractitioners. For citation: Danilov S. Yu. (2019) Natural Resources Management in Federation: Canadian Model. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 215–236 (in Russian) DOI: 10.17323/2072-8166.2019.5.215.236 |
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237–253
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In the article, the authors based on unpublished earlier in Russian language materials,study the process of civil law formation as an independent branch of law in China, payingspecial attention to the beginning of the 20th century, when the Chinese legal systementered the modernization period. That period is characterized by the existence of aphenomenon of the absence of regulatory and legal material that regulates property andpersonal non-property social relations that form the basis of civil law, with the activities of the Supreme Court of the Republic of China. The court’s presidents, having receiveda brilliant legal education, by relying on general principles of law, applying establishedlegal customs, interpreting the old Qing legislation and doctrinal interpretation of draftlaws, managed to create a unique law enforcement practice. In the framework of the legalsystem that takes most of the legal positions and constructions from the Roman-Germanlegal family, the judicial precedent, without being formally declared as a source of law,actually took the predominant position in the hierarchy of sources for a decade and a halfbefore it was adopted in 1929-1931, the first and only civil code of China. This situationbecame possible due to the fact that the leadership of the Qing Empire, long trying tokeep the country in international isolation, as a result, was forced not only to open citiesand ports for foreigners but also to actually take full advantage of the European right,mostly German, French and Belgian, etc. However, blind copying of legal norms did notgive the desired result, and the political struggle after the abolition of the monarchy andthe abrogation of the previous legislation created a legal vacuum that needed to be filledin by the judiciary and other law enforcement agencies. That allowed the Supreme Courtof China not only to ensure the uniformity of judicial practice but also to become a lawmakingbody, adapting the existing legal norms to the needs of contemporary reality.The Supreme Court summarized and systematized its own decisions for the first 7 yearsof activity, from 1912 to 1918, publishing them in the form of a collection of abstracts.In 1920 the collection was partially translated into English, and in 1924, into French. In1923 it was supplemented with new jurisprudence and translated into Russian, but notpublished. And, despite the fact that the legal system of the PRC does not consider itselfto any extent the successor of the legal system of the Republic of China, the study ofthe sources of law of the period 1912–1949 is a prerequisite for the fulfillment of themain function of any science — the growth of new knowledge, and in relation to legalscience — understanding of legal traditions and approaches to solving problems andregulating social relations, which are also characteristic of modern Chinese society. For citation: Dudin P.N., Tsyretorov A.I. (2019) Formation of Civil Law in China in 1912– 1929. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 237–253 (in Russian) DOI: 10.17323/2072-8166.2019.5.237.253 |
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