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Legal thought: history and contemporarity
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4–27
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The article reviews the issues related to development and implementation of nationalstrategies (national programs) as strategic planning tools in the field of intellectualproperty in Russia. Various research methods were applied in the course of this study,including systems analysis, technical legal and comparative legal approaches. Draftingand implementation of a national strategic program is one of the main priorities in theprocess of removing legal hurdles that impede the development of intellectual propertyin Russia Our focus is on analyzing international best practice in drafting strategicplans; we pay particular attention to world’s leading economies in terms of technologyand innovation, such as China, the United States and Japan, as well as certain CIScountries. Apart from examining the strategies per se, the arrangements related todevelopment, implementation, amending and monitoring pertaining to such strategiesare also reviewed. The study indicates that despite the approaches to strategic plansdevelopment varying widely across jurisdictions, almost all of them succeed in facilitating innovation through institutional means. Prospects of drafting and implementation of sucha strategy in Russia are also considered. The study reveals that existing drafts of strategicplans do not meet the challenge of defining a comprehensive policy, are created in anad hoc manner, lack complexity and contain major contradictions. The study highlightsthe following administrative hurdles hindering the development of a national intellectualproperty strategy: departmental approach to development, lack of proper public debate,insufficient governmental focus on organizational arrangements. For citation: Novoselova L.A, Grin O.S. (2020) Forming Strategies of Intellectual Property Development to Overcome Administrative Barriers. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 4–27 (in Russian) DOI: 10.17323/2072-8166.2020.2.4.27 |
Russian law: conditions, perspectives, commentaries
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28–44
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Imperative provisions of Article 17 of the Law on the Protection of Consumer Rights of theRussian Federation and Article 29 of the Civil Procedure Code of the Russian Federationprovide the consumer with an option to file a lawsuit in court (at the location of therespondent organization, at his place of residence or at the place of residence, or at theplace of conclusion, or execution of the contract), despite the existence of a valid andenforceable choice of court consumer agreements. At the same time these provisions donot stipulate the question of whether the consumer has a similar opportunity if there is anarbitration clause in the agreement. The lack of the special rules governing the validity ofarbitration clauses with the participation of consumers in federal legislation led to a widerange of solutions to this issue in judicial practice, from the admissibility of incorporatingan arbitration clause in consumer agreements to the impossibility of considering thesedisputes by arbitration courts. The author critically evaluates the doctrinal positions onthe unacceptability of incorporating an arbitration clause in consumer agreements dueto the 2012 position of the Constitutional Court of the Russian Federation regarding thepossibility of choosing an alternative form of protection of rights by parties to a consumeragreement, Article 11 of the Civil Procedure Code, which allows to choose forms ofprotection of civil rights by applying to a court, arbitration court or arbitration court, as wellas provided for in Articles 45, 46 of the Constitution guarantees. At the same time, with thegeneral arbitrability of consumer disputes, the author justifies the need to establish specialrequirements for the validity of after the dispute arises. In connection with the absence inRussian legislation of special conditions for the validity of the arbitration agreement withthe participation of the consumer, the author explores the possibility of evaluation of thearbitration agreement based on the more substantive provisions provided for in Article428 of the Civil Code. For citation: Terenteva L.V. (2020) Arbitration Clauses in Agreements Involving Consumers. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 28–44 (in Russian) DOI: 10.17323/2072-8166.2020.2.28.44 |
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45–83
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Recognition and enforcement of foreign courts decisions is an important guaranteeof protection of the rights and legitimate interests of individuals and legal entitiesand a necessary part of an effective system of international legal cooperation. In themechanism of legal regulation of cross-border turnover of judicial acts, one of the mainissues is the definition of the object of recognition and enforcement. In Russia, the rangeof decisions subject to recognition and enforcement is defined in international treatiesof the Russian Federation, which provides for such recognition and enforcement, whilein the case of recognition of decisions that do not require enforcement — also in Federallaws of the Russian Federation. The aim of the study is to analyze the Treaty rules thatdetermine which foreign judgments are subject to recognition and enforcement in theterritory of the Russian Federation, to identify controversial issues in the practice of theirapplication by courts, to find ways to improve Treaty rules, to achieve uniformity in theunderstanding of their courts. The article analyzes the provisions of the Minsk Conventionof the Commonwealth of Independent States (1993), the Kiev agreement of thesecountries (1992), bilateral treaties of the Russian Federation on legal assistance (morethan thirty of them) and other treaties providing for the recognition and enforcement offoreign judgments, Russian legislation and law enforcement practice. Modern trends in the regulation of these relations are taken into account, in particular: the materials of theHague Convention on the recognition and enforcement of foreign judgments in civil andcommercial cases (2019) are used. The range of foreign judgments subject to recognitionand enforcement is determined by different vectors, taking into account the specificcharacteristics of judicial acts and proceedings in which they are adopted. A foreignjudgment as an object of recognition and enforcement is considered from the point ofview, firstly, of the nature of the case on which the decision was made (civil, family, laboror a separate category of civil cases), secondly, of the body that made the decision (statecourt or other body), and thirdly, of the procedural form (decision, determination, order). For citation: Marysheva N.I., Schukin A.I. (2020) Foreign Judgment as Object of Recognition and Enforcement in the Russian Federation. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 45–83 (in Russian) DOI: 10.17323/2072-8166.2020.2.45.83 |
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84–104
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The article discusses the construction of the right of the necessary road as a restrictionof ownership in the interests of a neighbor. This right is not known to the Russian law.Proposals for its introduction were made in the last century in the process of discussingthe draft of the Civil Code of the Russian Empire. The construction of the necessary roadlaw is widely used in many foreign law and order as neighborly law along with a privateeasement. Foreign doctrine and judicial practice distinguish between a private easementand the right of the necessary road as neighboring law. The relevance of introducingthe construction of the necessary road law into the domestic law and order is due to the modern reform of Russian property law. An extensive judicial practice testifies to thepractical need of this institution in our country, which shows the insufficient design ofprivate and public easements to regulate relations between neighbors when establishingthe right of passage (thoroughfare) to a public road. The article reveals the concept of thelaw of the necessary road as neighborly law, its essence, the conditions for establishing,delimiting from the property easement, determining the fee and exemption from it. Theprerequisites for the introduction of this design into current Russian law are justified. Thepurpose of the article is to justify the need to develop the institution of the necessary roadas a restriction of ownership in the interests of a neighbor (neighborly law) in Russian civillaw. Based on the study of Russian doctrine and jurisprudence, a number of conclusionsand proposals are prepared regarding the essence of the right of the necessary roadas a neighbor’s law and the need to separate it into a separate civil law category. Themethodology of the paper is based upon general research ways and means (analysis andsynthesis, induction and deduction, a system analysis method) and upon methods of legalscience (including comparative law, systematic, teleological and historical interpretationof legal norms). For citation: Emelkina I.A. (2020) The Right of Access to Public Road as a Restriction of Property in the Neighbor Interest in Russian and Foreign Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 84–104 (in Russian) DOI: 10.17323/2072-8166.2020.2.84.104 |
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105–129
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The article analyzes the nature and the risks of the Russian model of the hereditarycontract and explores the specifics of similar legal construction in countries of Westerndemocracy. The purpose of the research is to determine the reasonable and fair conditionsfor the conclusion, execution, termination and invalidation of the hereditary contractin Russia. The paper uses methodology of comparative law and structural-functionalanalysis, and the work deals with the essence and types of the last will in the contract ofinheritance. Since the advent of the family pacts on succession to business in countrieswith Roman law, there has been a changing the approach to hereditary contracts, whichas invalid are generally recognized, and often even no reinterpretation of them into wills.The German model of the hereditary contract has a bipolar legal nature. The doctrine inGermany systematizes guidelines when choosing a way of the last will. The testator musttake into account the mutuality of disposals, the marital status of the participants and thenature of lifetime or posthumous duties. In Russia, the hereditary contract is a prototypeof a special «testament» with the possibility of damages in case of unilateral refusal. In the light of the German, Austrian, Swiss and Hungarian experience, the following reception isproposed. First, to differentiate disposals in the agreement of inheritance: on contractualand testamentary, interrelated and independent one. Second, to refrain from qualifyingthe performance of duties under the contract of inheritance as a classical sign of theobligations. Third, to limit the freedom of lifetime disposal of the inheritance to ensurea balance of interests of the parties to the hereditary contract by means the testator’sassurances of inaction and protection against its abuse. Fourthly, to guarantee of thehereditary contractual rights of a bona fide spouse in the event of marriage dissolutionor its invalidity. For citation: Lorents D.V. (2020) The Hereditary Contract: Roman and German Approaches. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 105–129 (in Russian) DOI: 10.17323/2072-8166.2020.2.105.129 |
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130–161
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The risks of penalties for doing business without registration and for unauthorized businessactivities are different in the legal systems of different countries. Russia establishescriminal or administrative liability for illegal business activities as a crime in itself. Inthe United States, the United Kingdom, France and Germany criminal or civil penaltiesgenerally apply for tax evasion or failure to pay for social insurance. The peculiarity ofFrench law is the use of astreinte to force business registration. This approach seems tobe more effective in the context of business withdrawal from the shadows, but it raisesapprehension in the context of the entropy of the legal system. Carrying out unauthorizedactivities in Western legal systems entails criminal or civil penalties regardless of thesize of the income. The type of activity and other circumstances are taken into account.Over the past decade, registration systems for the final beneficiaries of legal entitiesare being introduced everywhere. The comparative study leads to the conclusion thatpunishment (both criminal and administrative) for engaging in commercial activitieswithout registration is not an effective tool for getting business out of the shadows. Britishrules seem more successful. In England and Wales the obligation to notify tax authoritiesof the facts arises as the business succeeds, reaches a certain level of income or profit.Responsibility is provided for tax evasion, and failure to act does not entail a criminalcharge. Russian legislation on licensing activities loses consistency and becomes difficultto foreseeable, its revision is necessary. The question of sanctions (criminal or otherwise)for unauthorized activities should be decided not on the base of the amount of income,but on the base of the danger that the activity poses to others. Registration systems forbeneficial owners entail dubious benefits and are fraught with additional problems. For citation: Klepitskij I.A. (2020) Starting a Business: Risk of Penalties. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 130–161 (in Russian) DOI: 10.17323/2072-8166.2020.2.130.161 |
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162–182
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The transition from an industrial economy to a digital economy affects seriously labourrelations. Digital technologies increase the level of automation of production andservices. The use of software and robotics by entrepreneurs entails changes in theorganization of wage labour. The subject of this study is the legal regulation of wagelabour in the context of employers using new digital technologies to improve productionefficiency and monitor the performance of employees’ duties. Labour law arose andwas formed during the period of industrial society, many of its norms and institutions arenot designed for changes that occur in modern society as a result of digitalization. Thisreduces the possibilities of labour law as a regulator of the system of labour relations in the contemporary conditions. The purpose of this study is to analyse the changes takingplace in society that have the greatest impact on the world of work, as well as highlightingthe main blocks of the legal regulation of wage labour, which will be amended soon. Thepositions of Russian and foreign experts in labour economics and labour law were takeninto account when analysing and formulating conclusions. The main research methodsare analysis and synthesis, abstraction and generalization, formal legal and comparativelegal methods, as well as the method of legal modelling. Conclusions about the inevitableresponse of labour law to changes associated with digitalization processes were madebased on the results of this study. The changes will affect such labour law institutions asworking time, rest time, labour protection, protection of employees’ data, guarantees andcompensation for employees, social partnership. The labour legislation should introducerules obliging employers to send employees to retrain if they are replaced by artificialintelligence systems. The new standards should limit the use of controls over workers’performance of duties and the use of artificial intelligence systems for data mining. Thechanges will also affect the circle of subjects of labour law. For citation: Filipova I.A. (2020) Labour Law: Challenges of Digital Society. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 162–182 (in Russian) DOI: 10.17323/2072-8166.2020.2.162.182 |
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183–210
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The article presents results of a comprehensive study of the Federal law “On amendmentsto the Federal law “On hunting and conservation of hunting resources and on amendmentsto several legislative acts of the Russian Federation” and the Federal law “On the animalworld”, including the history of its design. This Law allows hunting wild animals kept insemi-free conditions and in artificially created habitat (“aviary hunting”). The researchwas carried out using formal legal and system methods, as well as methods of modelingand comparative law. Its purpose is to find out what is correlation of legislative innovationswith “hunting” and environmental legislation and what are possible consequences of theirapplication. The relevance of the research is highlighted by the negative public responseaccompanied process of designing and approving the law on “aviary hunting”, which is inclear contradiction with the legislative trend of humanizing the treatment of animals. It isproved the purpose of the Law is to legalize illegally conducted “aviary hunting” in orderto ensure the continuation of this activity already legally and to remove it from the bans,restrictions and requirements established in the Federal Law on hunting and huntingrules. The Law on “aviary hunting” does not conform to legal concept of hunting and mainprovisions of the natural resources and environmental legislation of Russia, provide in fact, the illegal “privatization” of wildlife, which is state property now, as well as areasof hunting grounds by permitting to build real estate in the form of capital structures.It is argued that the foreign experience of “aviary hunting” referred to by the initiatorsand authors of the Law is not applicable in the Russian legal system based on anotherprinciples. As a consequence, legislative innovations does not match the concept ofstate ownership of wildlife, violate the following basic legal requirements: separation ofthe right to use the animal world from the right to use land and other natural resources,implementation of wildlife use methods that do not allow cruel treatment of animals,in accordance with the principles of humanity. Retrospect shows that in Russia “aviaryhunting” was not widespread even in the conditions of landlord ownership. A forecastof negative consequences of the adoption of the Law on aviary hunting is given, and aproposal is made to cancel or invalidate its provisions. For citation: Gorokhov D.B., Ivanova S.V. (2020) Legalization of Aviary Hunting as Another Controversial Result of Domestic Law-Making. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 183–210 (in Russian) DOI: 10.17323/2072-8166.2020.2.183.210 |
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211–229
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The analysis presented in the article features as to the development of modern legislation,legal practice, contributes to studying the urgent issues of administrative and judicialreforms, shows a number of significant terms in question, in particular legal process asa whole, administrative process, administrative justice), touches upon various issues ofjudging administrative case judicially or extra judicially. A special attention is drawn to thenew Code of administrative procedure of the Russian Federation and its coordination withother procedural laws. The article raises the problem of the jurisdiction of administrativecases to several collegiums of the Supreme Court of the Russian Federation, whichleads to various outcomes of similar disputes. The paper assesses critically the generaljurisdiction approach of courts to judging the cases associated with entrepreneurship.It reveals the drawbacks in performing the control over norms on administrative cases.A significant attention is given to prejudicial recovery of losses. To ensure the efficiencyof the institute of general administrative claim and administrative protection of the rightsof citizens, the paper suggests the possibility to create a special centralized body withinthe system of Russian executive power to judge administrative cases, which would beable to make administrative power less bureaucratized one and to allow courts avoidthe execution of punishment. The article proves the necessity to create an additionaladministrative body that will allow protecting the rights and legal interests of citizens and public bodies of executive power and will not allow the breach of the separation of powersprinciple. For citation: Panova I. V. (2020) The Administrative Justice. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 211–229 (in Russian) DOI: 10.17323/2072-8166.2020.2.211.229 |
Law in the modern world
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230–253
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Is it possible to regulate an extensive segment of transborder relations in cyber space withthe available legal tools and is reasonable to discuss the formation of the new bulk of normsin cyber space? The aim of the article is an attempt to answer this question through theprism of the regulation mechanism in trans-border private law relations belonging to thesubject matter of international private law. Due to the nature and the presence of foreigncomponent, the private law relations are closely connected with those emerging due tothe scale of cyber space. The methodology of the international private law has adjustedduring many centuries to the regulation of trans-border relations having developed anumber of mechanisms with a high degree of flexibility and able to respond efficiently to thechallenges of the modern society. Cyber space as a new environment for net communitymakes the issues of the past generation relevant, in particular conflict of jurisdictions andconflict of laws. The solutions are developing both by adjusting the traditional regulatorymodels and the development of the new ones some of which are being discussed in thearticle. The research argues that the concept of cyber law as an autonomous legal systemregulating public relations in cyber space is irrelevant as the very nature of the relationsare not transformed. However, law needs to realize cyber space and formulate relevantresponses to the new forms of making trans-border private law relations objective. Inparticular, the sphere concerning the definition of jurisdiction may draw the attention dueto the theoretical concepts and practice: Calder effects, Zippo-test, targeting test etc.Conflict of laws has a tendency of shifting from local legal relations with lex loci to a moreflexible conflict of laws regulation. or the cosmopolitan approach of the applicable lawpresented by P.S. Berman. Cyber space makes lex mercatoria relevant again which maybe referred to as lex informatia or e-merchant. As accumulated, all the above-mentionedmay enrich the modern doctrine and practice of international private law. For citation: Mazhorina M.V. (2020) Cyberplace and Methodology of International Private Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 230–253 (in Russian) DOI: 10.17323/2072-8166.2020.2.230.253 |
Book review
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254–260
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Review of a book by Lebel L. L’art de juger. Quebec City: Presses de’l University Laval,2019. 369 p. Citation: Antonov M.V. (2020) The Art to be a Judge. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 254–260 (in Russian) |
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