Contents # 5/2015

The Journal of Foreign Legislation and Comparative Law — 10 Years

SCIENCE TRADITIONS OF COMPARATIVE STUDIES IN THE HISTORY OF THE INSTITUTE OF LEGISLATION AND COMPARATIVE LAW  Pdf 16

V. I. LAFITSKIY

deputy director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, associate member of the International Academy of Comparative Law, candidate of legal sciences, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: lafitsky@izak.ru

The article is devoted to the sources and development of comparativistic researches of the Institute of Legislation and Comparative Law, which had been initiated in 1930 —1940 in the works of M. N. Gernet, G. S. Gurvitch, A. I. Denisov, I. B. Novitsky, E. A. Fleishiz and which starting from the middle of the XX century have been brilliantly continued in the works of А. А. Tille, A. V. Tumanov, Y. A. Tikhomirov, other comparativists of the Institute. The article reveals the continuity of the comparativistic ideas of the scholars of the Institute of different generations, highlights the doctrinal approaches to elaborating the new and deepening traditional trends of comparative law researches.

Keywords: the Institute of Legislation and Comparative Law under the Government of the Russian Federation, scientific comparativistic traditions, general theory, methodology, doctrinal approaches of comparative law.

DOI: 10.12737/16117

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NEW EVALUATION MEASURES IN COMPARATIVE LAW  Pdf 16

Yu. A. TIKHOMIROV

deputy head of the public law research centre of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, corresponding member of the International Academy of Comparative Law, doctor of legal sciences, professor, honored scientist of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office2@izak.ru

Comparative law develops in a fast-moving and grand-scale way. Accumulated conceptions, traditions and experience allow stepping forward from informational and comparative analysis to the use of new criteria that permit to measure the level of countries’ legal development. The article reviews modern trends in the development of the comparative law research — expansion of the scope of comparison objects, justification of the new classification of legal frameworks, possibilities of functional analysis of legal regulators, the role of international law in legal frameworks’ convergence etc. The author draws special attention to the problems of countries’ legal sovereignty under the conditions of globalization and integration of legal systems, legal frameworks and information exchange, law evolution. In addition the author argues in favor of the “Roving Legal Framework” development.

Keywords: сomparative law, legal framework, legal regulators, integration, national legislation.

DOI: 10.12737/16118

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THE LAWMAKING SCHOOL: FROM THE DEVELOPMENT OF LEGAL TECHNIQUE TO MODERN LEGAL TECHNOLOGIES  Pdf 16

N. A. VLASENKO, M. V. ZALOILO

N. A. VLASENKO, head of the department of theory of legislation of the Institute of Legislation and Comparative Law under the Government of Russian Federation, doctor of legal sciences, professor, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: theory@izak.ru

M. V. ZALOILO, senior research fellow of the department of theory of legislation of the Institute of Legislation and Comparative Law under the Government of Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: theory3@izak.ru

The article deals with the history of formation and further development of the lawmaking school of sought of the Institute of Legislation and Comparative Law for the whole period of its existence since 1925 up to now. The transformation of one of the Institute’s research guidelines — the questions of legal technique and legal technology — to the theory of lawmaking is demonstrated. Special attention is paid to the period of formation of the lawmaking school of sought from the end of 1920, to the significance of changes in the profile of the Institute’s activity, and to the extension of research guidelines of the Institute. The authors examine the impact of new phenomena in lawmaking: legal monitoring; forecasting; regulatory impact assessment; experimental application of new legal solutions within a particular region or social group; information technologies in legal systematization and processing of legal data; neurolinguistic legal technology affecting the issues of improving the legal language; etc. The article presents the names of distinguished scholars and great lawyers who are the representatives of the lawmaking school of sought of the Institute. The contribution of this persons to the formation and development of lawmaking school of sought and their role in development of theoretical problems of lawmaking, legal drafting, systematization of legislation, improvement of the legal language, legal technique and legal technology are revealed.

Keywords: the Institute of Legislation and Comparative Law under the Government of the Russian Federation, statute, legislation, conceptions of law, school of thought, regulatory legal act, law, lawmaking, legal technique, legal technology.

DOI: 10.12737/16119

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COMPARATIVE CONSTITUTIONAL AND ADMINISTRATIVE LAW: FROM ORIGINS TO MODERN ERA  Pdf 16

A. N. PILIPENKO

leading research fellow of the department of foreign public law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign2@izak.ru

If we consider 1965 to be the initial date of the formation of constitutional and administrative comparative studies, the year of creation in the Institute of the sector for foreign legislation on State Building, then this direction of the comparative law can rightly celebrate its 50th anniversary. During this period, the main research directions in the Comparative Constitutional and Administrative Law were determined: study and mastering of the comparative law method, research of organization and procedure of law-making, organization and procedures for preparation of draft legislation, legislative technique, Constitutions of foreign countries, a foreign federation, legal status of an individual, system of state-forming organs, individual institutions of constitutional and administrative law, modern trends in the development of administrative law, and others. These areas, in essence, define themes for future comparative law research in the field of comparative constitutional and administrative law.

Keywords: constitutional comparative law, administrative comparative law, comparative law method, legislative technique, Constitution, federation, parliamentary control, administrative control, financial control, jurisdictional control, elections, referendum.

DOI: 10.12737/16120

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SCHOOL OF ADMINISTRATIVE LAW: COMPARATIVE LAW ASPECT  Pdf 16

A. F. NOZDRACHEV, V. Yu. LUKYANOVA

A. F. NOZDRACHEV, head of administrative legislation and procedure department of the Institute of Legislation and Comparative Law under the Government of Russian Federation, doctor of legal sciences, professor, honored scientist of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: adm1@izak.ru

V. Yu. LUKY’ANOVA, head of legal analysis and forecasting department of the Institute of Legislation and Comparative Law under the Government of Russian Federation, candidate of philosophical sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office2@izak.ru

Scientific life at the Institute of Legislation and Comparative Law under the Government of the Russian Federation, which will celebrate its 90th anniversary in 2015, is developing in various ways. Special place is occupied by scientific schools — sustainable community of scientists, developing concepts’ principles and systems, legal regulation mechanisms that ensure consistency and continuity of scientific research results. This article examines the impact of scientific analysis of foreign law and acts of international law on the development of the administrative law science at different development stages of one of the Institute’s oldest scientific schools — the School of Administrative Law. The article demonstrates the possibility of perception of positive scientific results, ideas, views and positions of leading scientists of the School through theory and practice of modern public administration in the process of finding legal solutions for regulation of new phenomena that require streamlining.

Keywords: administrative law, comparative law, comparative law research, authorization system, public administration, public service, integration, globalization, technical regulation, personal data.

DOI: 10.12737/16121

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ON COMPARATIVE LAW STUDIES IN THE FIELD OF PRIVATE (CIVIL) LAW  Pdf 16

N. G. SEMILYUTINA

head of the department of civil law of foreign countries of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign3@izak.ru

The article analyses the origins of comparative civil law studies in Russia starting from the reforms of tsar Peter I. The author understands comparative civil law as a branch of legal science that makes comparative law studies applying the civil law methodology. The civil law methodology is applied by a researcher who studies legal relationship between the parties which are in equal legal position. The analysis of legal rules of various countries, regulating of alike legal relationship in different countries affords to find the best way to regulate the corresponding relationship. The purposes of comparative analysis varied in various periods of the development of Russia. The role of the Institute and the comparative law studies related to civil law are also the subject of the present article. Within the article the author pays attention to tendencies in the foreign civil law regulation such as extraterritorial application of the rules of law, or the effect of the public interest presence.

Keywords: comparative law, civil law, commercial arbitration, World Trade Organization, foreign trade transactions, economic sanctions, exterritoriality of the rule of law.

DOI: 10.12737/16122

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СIVILISTIC SCHOOL OF THOUGHT IN INTERNATIONAL PRIVATE LAW  Pdf 16

N. I. MARYSHEVA, T. P. LAZAREVA, N. V. VLASOVA

N. I. MARYSHEVA, chief research fellow of the department of private international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, honored scientist of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: pil2@izak.ru

T. P. LAZAREVA, leading research fellow of the department of private international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: pil@izak.ru

N. V. VLASOVA, research fellow of the department of private international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: natasha.vlasova@rambler.ru

The article is devoted to the analysis of the civil law concept of private international law, which comes down to the fact that private international law regulates private law relations: civil, family and labour, if they comprise a foreign element (foreign citizenship, foreign affiliation of a subject of law, etc). The authors provide arguments that private international law is an independent branch of law and legal studies; civil law concept of private international law is based on two methods of regulation of private law relations with a foreign element: conflict of laws (national and standardized through uniform rules contained in international conventions) and a substantive (standardized) element. The authors reveal the role in the development of the science of private international law played by professor L. A. Luntz, Laureate of the USSR State prize, who worked in the Institute of Legislation and Comparative Law (ILCL) in 1939—1979. Special attention is paid to the contribution of L. A. Luntz and his successors — the ILCL researchers V. P. Zvekov, A. L. Makovskiy, N. I. Marysheva, O. N. Sadikov — to the formation and development of the Soviet and Russian legislation in the field of private international law, including drafting of the Bill on Private International Law and International Civil Procedure (1990), drafting and adoption of the respective sections within the Fundamental Principles of Civil Legislation of the USSR (1961, 1991), the Fundamental Principles of Marriage and Family Legislation of the USSR (1968), the RSFSR Civil Code (1964), the Marriage and Family Code of the RSFSR (1969), the present Civil Code of the Russian Federation (Part III, 2001), the Family Code of the Russian Federation (1995), the Maritime Code of the Russian Federation (1999), the Civil Procedure Code of the Russian Federation (2002).

Keywords: international private law, international civil procedure, international law, civil law, foreign element, civil law school, conflict rule, unification, convention, codification, international commercial contracts.

DOI: 10.12737/16123

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FOREIGN LEGISLATION ON AGRICULTURE AS SUBJECT OF COMPARATIVE LAW RESEARCH  Pdf 16

S. A. BOGOLYUBOV

head of the department of agricultural, ecological and natural resources legislation of the Institute of Legislation and Comparative Law under the Government of Russian Federation, doctor of legal sciences, professor, honored scientist of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: ecology@izak.ru

Research of relevant foreign legislations on agriculture and conducting of comparative law analysis in this sphere serve as scientific support for the development of domestic agricultural legislation. In the Institute of Legislation and Comparative Law such works are carried out by the department of agricultural, ecological and natural resources legislation and by the department of foreign civil legislation. Such comparative law comparisons can always be found in the Institute research papers, varying depending on the topicality of problems and social and economic situation in this country and in the world. Special attention is paid to the development and variety of forms of ownership in the agro-industrial complex, its government support, cooperative building construction in villages, to the use, protection and recovery of agricultural lands, forest resources, animal and vegetal life, sustainable development of rural settlements. Having become the subject of comparative law research, the analysis and summary of foreign legislation on agriculture make a positive contribution to modernization of the Russian legislation.

Keywords: agriculture, agricultural legislation of the Russian Federation and foreign countries, subject of comparative law research.

DOI: 10.12737/16125

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THE SCIENTIFIC LEGACY OF COMPARATIVE CRIMINAL STUDIES  Pdf 16

I. S. VLASOV, S. P. KUBANTSEV, O. I. SEMYKINA

I. S. VLASOV, leading research fellow of foreign public law department of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign1@izak.ru

S. P. KUBANTSEV, senior research fellow of foreign public law department of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: spkubantsev@mail.ru

O. I. SEMYKINA, acting head of foreign public law department of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: semykola@yandex.ru

The paper retrospectively reviews comparative studies in the fields of criminal law, criminology, penitentiary law, criminal procedure and judicial system conducted at the Institute since its formation in 1925, and which have maintained a high standard for over 90 years. The authors present the quintessence of the brightest and most global research of the Institute, conducted by such researchers of comparativism as M. N. Gernet, A. A. Herzensohn, M. M. Grodzinskiy, A. A.Zhizhilenko, M. M. Isaev, P. I. Lyublinskiy, A. I. Lubenskiy, B. S. Mankovskiy, I. B. Michaelovskaya, B. S. Nikiforov, N. N. Pashe-Ozerskiy, A. A. Piontkovskiy, F. M. Reshetnikov, A. A. Trainin, E. G. Shirwindt, A. Y. Estrin and others. The review indicates the tendency to further enrich the heritage of the criminal comparative studies by the strength of the Institute.

Keywords: comparative criminal law, comparative research, criminal law, criminal procedure, criminology, criminal liability, crime, corruption.

DOI: 10.12737/16126

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THE FORMATION AND DEVELOPMENT OF THE SCIENTIFIC SCHOOL OF INTERNATIONAL PUBLIC LAW  Pdf 16

O. I. TIUNOV, A. Ya. KAPUSTIN, S. B. BALKHAEVA

O. I. TIUNOV, head of the department of public international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: mp@izak.ru

A. Ya. KAPUSTIN, first deputy director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: kapustin@izak.ru

S. B. BALKHAEVA, senior research fellow of the department of public international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: mp@izak.ru

This article focuses on the establishment and development of the scientific school of international law in the Institute of Legislation and Comparative Law under the Government of the Russian Federation. It is stated that the preconditions for the formation of the scientific school of international law dated back to the first half of the twentieth century. In this case, briefly reviewed the scientific legacy of the prominent members of the scientific school. A brief review of the main scientific publications is analyzed. It is proved that the study of contemporary issues such as sustainable economic growth, environmental wellbeing, combating international crime and corruption require to be engaged in concerted action the implementation of agreed actions and to develop mutually acceptable approaches and solutions. The development of scientific school of international law is based on the concept of maintaining a system of scientific ideas, representing a contribution to the development of several areas of modern international law and ensuring continuity in science.

Keywords: international law, international treaties, science, pacta sunt servanda, interstate integration associations.

DOI: 10.12737/16127

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IMPLEMENTATION PROBLEMS OF THE CONVENTION ON HUMAN RIGHTS  Pdf 16

V. D. ZORKIN

Chairman of the Constitutional Court of the Russian Federation, doctor of legal sciences, professor, member of the board of regents of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
1, Senatskaya ploshchad, St. Petersburg, Russia, 190000
E-mail: ksrf@ksrf.ru

The article is devoted to the problems of implementation into the domestic law of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHRFF) and Convention-based decisions of the European Court of Human Rights (ECHR). The author notes that the complexity of the ECPHRFF provisions’ implementation process is caused by the lack of efficient legal remedies at the national level. Among the reasons for failure to execute or for the delay in execution of the ECPHRFF requirements and ECHR decisions, there are lack of coordination of actions between different government agencies and differences in approaches to ECPHRFF interpretation, political contradictions. The article justifies an important role of the Constitutional Court of the Russian Federation in improving the Russian legislation and lawenforcement by means of implementation of the ECPHRFF provisions and ECHR case law. The author underlines that the Constitutional Court of the Russian Federation activity is aimed at resolving two tasks: harmonization of the Russian legal system with the European legal framework and protection of own constitutional identity. The author considers the problem of “judicial activism” in the ECHR activity, that is aimed at extended interpretation of the ECPHRFF articles. The author pays special attention to the issue of application by the ECHR of the European consensus methodology which it used to determine the discretion of states in safeguarding conventional rights. At the same time the author points to the inconsistency of this concept in regard to the ECPHRFF basic principles. The author justifies the Constitutional Court of the Russian Federation position, in accordance with which ECPHRFF and the ECPHRFF-based decisions of ECHR do not override the priority of the Russian Constitution for national constitutional courts and the Russian legal system in those cases when the Russian Constitution is capable to ensure better protection of human and civil rights and freedoms. The author draws the conclusion that cooperation of the European and Russian legal orders is not possible in the context of subordination; it is necessary to establish a dialogue between the legal systems which is a guarantee of the all-European law development.

Keywords: human rights, implementation, European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights, judicial activism, European consensus, principle of subsidiarity, affirmative obligations, the Constitutional Court of the Russian Federation, cooperation of legal orders.

DOI: 10.12737/16128

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PARADIGMS OF CONSTITUTIONAL REFORM  Pdf 16

T. Y. KHABRIEVA

director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, vice-president of the Russian Academy of Sciences, academician of Russian Academy of Sciences, associate member of the International Academy of Comparative Law, doctor of legal sciences, professor, member of the European Commission for Democracy through Law (Venice Commission of the Council of Europe), honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office@izak.ru

The article deals with the theoretical aspects relating to reforms in the fundamental law of a State — Constitution. It is noted that the Constitution is a developing legal substance which is shaped by and dependent on the existing economic, political, social and even ideological situation; conservation of the basic law can cause both public tension, and also hamper the evolution of statehood. The author attends to the correlation of notions of “constitutional reform” and “change of the constitution”. Also analyzed are the approaches towards the definition of the term of constitutional reform which have been elaborated by the doctrine. It contains a detailed list of terminology which is used in the science of constitutional law and has a direct relevance to reformation of the constitution. Emphasis is made on the new trend in research in the science of constitutional law which reflects the two-sided approach — on the one hand, a factor of progress, and on the other hand, — may be viewed as a tool necessary to make public relations stable and dynamic. The article contains a list of model provisions for the present day constitution which potentially can be employed. It relates to the provisions of the constitution relating to the status of a person, also, economic, social and political systems, etc. Comparative law approach is applied to the contents of constitutional reforms of the XX and XXI centuries in various countries. It notes that a stable basic law of a country is a key symbol of a legal identity of a nation.

Keywords: constitution, constitutional reform, updating a constitution, amendments to a constitution, basic provisions of a constitutions, science of constitutional law, stability of a constitution.

DOI: 10.12737/16129

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A SKETCH OF THE MAIN MODELS OF ADMINISTRATIVE JUSTICE (in French)  Pdf 16

Gérard MARCOU

professor of the University of Paris 1 Panthéon-Sorbonne, doctor of law
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office@izak.ru

Administrative justice exists in most countries as a function in the State organization. But its scope and its forms differ widely among countries, in particular as regards the place of judicial review and the powers of judges. We can sort out three main models of administrative justice, based on judicial review institutions, from historical experience and main national systems. In Europe, the European Court of Human Rights had a significant influence on the evolution of administrative justice towards more judicial oversight upon administrative bodies. The expansion of these models gave rise to a number of variants based on national and political context. The first model is the council of State, joining judicial review and advisory functions for the government. Initially an ancillary body it turned to be an independant supreme administrative court, with broad competence, including contracts and torts, while exercising further advisory functions. Another model is based on a unique administrative supreme court, with exclusive judicial review functions of a narrower scope, although some exceptions can be found where judicial review was transferred from a former council of State. A last model, probably most widespread nowadays, can be characterised as judicial review by the general supreme court. Institutionally there no dualism. The judiciary is also vested with judicial review of administrative authorities. Typical of common law countries, this organisation can be found also in countries of administrative law. In reality, there is dualism as regards procedures, substantial law and the powers of judges in administrative matters. In numerous cases administrative courts are organised inside of ordinary courts. Whatever the form of administrative justice it is essential to secure the independence of judges, to give them the capacity of substantial review of administrative acts, to facilitate the access to administrative judges and to guarantee the execution of courts decisions.

Keywords: administrative litigation, administrative justice, council of State, supreme court.

DOI: 10.12737/16130

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PUBLIC-LEGAL FORM OF THE EUROPEAN UNION  Pdf 16

V. E. CHIRKIN

chief research fellow of the Institute of State and Law of the Russian Academy of Sciences, chief research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor, honored scientist of the Russian Federation, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: vechirkin@yandex.ru

This article discusses some of the features of modern international regional associations of states that emerged in the last decades. In such alliances established for the economic, social and cultural integration in order to accelerate economic and social development of member-states, there are sometimes elements of political, public nature, a kind of germ unfinished and non-sovereign power vis-à-vis member states. In the European Union with a high degree of centralization, the boundary elements of its public authority organs include the state powers which, in accordance with the constitutions of the member states have voluntarily handed over to the EU; elements of the public power of its organs include the state authorities which, in accordance with the constitutions of the member states have voluntarily handed over by them to the EU; in the EU there is a possibility of imposing obligations on the member states by taking decisions by a majority of the members of its main institutions (major organs); in the constituent documents of the EU contains some political objectives, and some facts about EU activities are political in nature; on the territory of the EU, in parallel with the law of the member states acted superior, although incomplete (it does not include and cannot include some branches of law) supranational EU law which is created by its organs and without the following: interpellations and ratification such acts by ember states directly apply to natural and legal persons of the member states; the member states by the amendments in the constitutions voluntarily self-restricted some elements of its national sovereignty, but they retain their sovereignty, and the EU, not being a state, state sovereignty has not; in determining the structure of the organs of the EU, their authorities, relationships are widely used approaches the constitutional right, although all of these issues are essential features in the EU; in the EU there are elements of statehood, which naturally: the EU members are states that impose their imprint and the EU. The EU is a public law formation of special kind. Having said that, in determining the form of the EU could be in the categories of politology, science of state and the constitutional right to name the EU regional integrational international governmental (or regional integrational international similar state) public legal formation.

Keywords: the European Union, public legal formation, supranational law, state sovereignty.

DOI: 10.12737/16131

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INTERNATIONAL LAW IN THE CONDITIONS OF TRANSFORMATION OF CONTEMPORARY WORLD ORDER  Pdf 16

A. Ya. KAPUSTIN

first deputy director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: kapustin@izak.ru

The article discusses the role and function of international law in the transformation of the modern world order. A brief description of the main features of international contemporary international relations and the role of international law in maintaining international legal order is given. The relationship and interaction of international policies of States and international law is examined. Scientific schools of international law exploring the relationship of international law and foreign policy are analyzed. In this regard, the author draws attention to the problem of the legitimacy of international law and established international legal order. The assessment of challenges to the legitimacy of international law and its reflection in the current international legal theory is made.

Keywords: international law, the modern world order, international legal order, foreign policy and diplomacy, a realistic school of international law, normative and sociological legitimacy, legitimacy of international law, cosmopolitan formalism, transcivilizational perspective.

DOI: 10.12737/16132

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CORRUPTION AND LOBBYISM: THE DANISH EXPERIENCE (in English)  Pdf 16

Ole HASSELBALCH

PhD in law at the Aarhus University (the Kingdom of Denmark), professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: ole.hasselbalch@mail.dk

The presented article is devoted to the analysis of the results of the researches, arranged and held in order to discover the origin, the background, the consequences and the reasons for either the corruption or the lobbism in the modern Denmark. The author is eager to elaborate an essential attempt to separate these two phenomena from each other, underlining those their features, which, on one hand, show their familiarity, and on the other hand, display the difference. In the article there is the information, which is dedicated to the research of the historical, social and the other preconditions for the corruptional — lobbist manifestations in Denmark. It is quite obvious to say that there is no any doubt about the interest towards the presented data of different techniques, used by the corruption and lobbism performers, for gaining their mercenary targets. The article is provided with the discussable conclusions, aimed to demonstrate an extremely sophisticated way of solving this social problem. Besides the said, in the article there is the information, taken from the Annual Anti-Corruption Report of the European Commission to the European Council and to the European Parliament, composed and delivered in 2014. Looking through this information, the readers can get acquainted with the comparative corruption rate analysis throughout all the European countries. In the article it is indicated what the average level of the corruption among all the civil servants in Europe is, especially in such spheres of activity, as: state power, business and local authorities. The author considers this phenomenon comparatively. Moreover, the author gives his own estimation and interpretation of the newly inserted terminology, which has become a part of a contemporary juridical lexicon. These new terms are: “Good-Doing Industry”, “Legal Lobbyism” and some others. The doctrinal viewpoints of the well-known scientists on corruption and lobbyism are also highlighted in the article.

Keywords: corruption, lobbism, criminal code, experience, civil servant, punishment, crime, violation, influence, performers, international institutions, target, aim, activity, money.

DOI: 10.12737/16133

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IMPROVEMENT OF NATIONAL LEGISLATION FOR THE PROTECTION OF RIGHTS AND LEGITIMATE INTERESTS OF NATURAL AND LEGAL PERSONS, DERIVED FROM THE EAEU LAW, ON THE TERRITORY OF THE REPUBLIC OF BELARUS  Pdf 16

G. A. VASILEVICH, S. G. VASILEVICH

G. A. VASILEVICH, head of constitutional law chair of law faculty of the Belarusian State University, doctor of legal sciences, professor, honored lawyer of the Republic of Belarus, ex-chairman of the Constitutional Court of the Republic of Belarus
4, Prospekt Nezavisimosti, Minsk, Republic of Belarus, 220030
E-mail: gregory_1@tut.by

S. G. VASILEVICH, associate professor of constitutional law chair of law faculty of the Belarusian State University, candidate of legal sciences
4, Prospekt Nezavisimosti, Minsk, Republic of Belarus, 220030
E-mail: sergey135vsch@gmail.com

The article analyses the rights and legitimate interests of individuals and legal entities in the context of interaction of the national law and integration law in the Eurasian association. The authors draw special attention to the fact that the interaction of states in the framework of regional integration structures requires the adoption of various legal instruments that can be non-regulatory or binding for participating countries. The authors justify the conclusion that not only government institutions but also private individuals must bear responsibility defined by national public authorities (courts), and at the same time they must have the right to file a lawsuit against the state, that violated the integration law.

Keywords: integration, the Eurasian Economic Union (EAEU), EAEU authorities, national law, conscientious fulfillment of international treaties, responsibility.

DOI: 10.12737/16134

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SOME TRENDS IN DEVELOPMENT OF THE RUSSIAN CIVIL LAW PROCESS: IMPACT OF THE DOCTRINE AND FOREIGN PRACTICES  Pdf 16

S. А. SINITSYN

leading research fellow of the civil legislation and procedure department of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: synss@mail.ru

Codification of civil legislation is not a one-time random phenomenon in law; it is preceded by a long and meticulous work which in modern Russia pursues the aims of creating legislation sources’ system levels that ensure stable, large-scale and comprehensive legal regulation of market relations required by the turnover. Work on modernization and renewal of the Civil Code forms an integral part of codification, it shows dynamic development of the system of civil legislation. Objectives of the civil legislation codification in ХХ—ХХI involve elimination of contradictions in legislation, regulatory consolidation of new law doctrines, well-established in law enforcement practice, their structuring in the sources of civil legislation system, rationalization of legal regulations. Status of legislation and its evaluation predetermine the tendencies of its development in future, allow forecasting, designating possible risks and priorities of the law-making process.

Keywords: sources and system of civil legislation, reform of civil legislation, development tendencies of civil legislation, codification of civil legislation.

DOI: 10.12737/16135

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THE LIMITS AND LIMITATIONS OF PROPERTY RIGHTS IN THE LAWS OF FOREIGN COUNTRIES  Pdf 16

D. A. CHINIEV

chief research fellow of the Institute for Monitoring of Current Legislation under the President of the Republic of Uzbekistan, Candidate of Legal Sciences
6, Mustaqillik maydoni, Tashkent, Uzbekistan, 100078
E-mail: si_jaxongir@mail.ru

The author conducts historical and comparative law analysis of the limits and restrictions for the right of ownership in accordance with legislations of such foreign countries as Austria, Hungary, Belgium, Germany, Greece, Denmark, Spain, Italy, Ireland, Luxemburg, Poland, Portugal, Russia, the Czech Republic, Switzerland, and Japan. The author analyzes limits and restrictions in the exercise of the right of ownership, proprietary’s responsibilities, issues of socialization of the right of ownership, the necessity to impose restrictions to the right of ownership, conditions for the implementation of this institute etc. The author draws the conclusion on the need for proprietors to allow restricted use of their property by other persons.

Keywords: comparative law, civil legislation, property, private property, rights of ownership, restrictions of the right of ownership, expropriation, proprietor, public (societal) and private interest, abuse of the right.

DOI: 10.12737/16136

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LEGAL STATUS OF MANAGEMENT BODIES IN SHARE HOLDING COMPANIES IN FRANCE AND IN RUSSIA  Pdf 16

O. A. TERNOVAYA

leading research fellow of the department of civil legislation of foreign states of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: ternovaya16@yandex.ru

The article reviews legal nature of joint stock companies’ corporate bodies in accordance with the French and Russian legislations. Despite the influence of Anglo-American approaches on the formation of the Russian corporate legislation, the author proposes to more actively take into account the positive experience of countries with the continental law as they are closer to the Russian juridical reality. In this context the author pays special attention to the French legislation on joint stock companies. The author notes two most powerful trends in the evolution of the French corporate legislation: on the one hand, these are major changes in the substantive legal framework for governance and relations between the participants and the company, and on the other hand — important changes in legal regulation over governance and relations between the company participants. Comparison of certain issues in the legal nature of joint stock companies’ corporate bodies (boards) in Russia and France allows making the conclusion that the French legislation regulates in more detail such topical issues as peculiarities of the joint stock companies’ governance models, powers of a sole executive body, basis for civil responsibility of persons who are part of corporate bodies of a joint stock company.

Keywords: corporate body, joint stock company, organizational structure of a joint stock company, director, general director, administrative board, supervisory board, board of directors, executive directors, representative.

DOI: 10.12737/16137

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ON LIMITATION OF EMPLOYEES’ LABOUR RIGHTS UNDER THE CONDITIONS OF AN ECONOMIC CRISIS  Pdf 16

L. A. CHIKANOVA

head of the labour and social security legislation department of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: labour@izak.ru

The article is dedicated to the problems of limitation of employees’ labour rights under the conditions of an economic crisis. The author analyzes the Russian and foreign legislations, that regulate the relations in connection with mass discharge of employees and concluding of fixed-term employment contracts, as well as the opinions of labour law science representatives on the issue under consideration. The author notes that the statement of business representatives that unlike foreign legislation, the domestic labour legislation is excessively severe and regulates the relations between employees and employers in the Soviet manner and imposes on employers a large number of restrictions is not justified. The practice shows that general employment and labour laws in the developed countries leave very limited room for uncontrolled flexibility on the part of an employer, remaining truly flexible with respect to the diversity and variety of ways to ensure employees’ rights. Comparative analysis of legislations in Russia and foreign developed countries testifies that many foreign statutory regulations either completely agree with the RF Labour Code requirements or are yet less convenient for an employer. The Russian legislation, restricting the possibility of concluding fixed-term employment contracts is less severe compared to the European states. It conforms to international standards and that is why a suggestion on expanding grounds for concluding fixed-term employment contracts appears to be completely unjustified.

Keywords: economic crisis, labour rights’ guaranties, fixed-term employment contract, mass discharge of employees.

DOI: 10.12737/16138

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ON THE CONCEPT OF CONFLICT OF INTERESTS  Pdf 16

A. M. TSIRIN, E. I. SPECTOR, V. V. SEVALNEV

A. M. TSIRIN, head of department of the department of countering corruption methodology of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: antikor@izak.ru

E. I. SPECTOR, leading research fellow of the department of countering corruption methodology of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: antikor@izak.ru

V. V. SEVALNEV, senior research fellow of the department of countering corruption methodology of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: antikor@izak.ru

This research article, prepared for the 90th anniversary of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, reviews problems of conflict of interests prevention in the context of the search of the optimum definition which most fully reflects the whole range of its possible manifestations. On the basis of the etymological analysis of the “interest” concept, the authors of the article draw the conclusion that it is the combination of the subjective and objective aspects that most fully reflects the nature of interest. At the same time the authors note that the definition norms on the conflict of interests contained in the legislation on public service in many states, including Russia, do not fully meet the requirements of law-enforcement practice. The authors suggest ways of improvement of the “conflict of interests” concept which takes into account modern realities of this legal phenomenon development.

Keywords: interest, state, definition, category, workers, situation, collision, bribe.

DOI: 10.12737/16139

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HISTORY OF CRIMINAL LEGISLATION DEVELOPMENT IN SLOVAKIA  Pdf 16

N. Yu. LAZAREVA

assistant professor of the department of criminal law disciplines of the South-Russian Institute of Management with the Russian Presidential Academy of National Economy and Public Administration, candidate of legal sciences
70, Pushkinskaya st., Rostov-on-Don, Russia, 344002
E-mail: lazareva_77@mail.ru

The subject of this research is criminal legislation of the Slovak Republic since the merge of Slovakia in the Austro-Hungarian Empire (XIX century) to the present day. The article analyzes the emergency criminal legislation of the World War II period, the socialist Criminal Codes of the Czechoslovak Republic (1950, 1961) and the existing Criminal Code of the Slovak Republic of 2005. The article also touches upon the country’s constitutional development on the example of the adopted Constitutions of the Czechoslovak Socialist Republic (1948, 1960) and the Constitution of the Slovak Republic (1992). The author pays special attention to the integration of Slovakia into the European legal framework when it became a member of the European Union in 2004. The article also contains comparative analysis of the main institutions of the criminal law in Russia and Slovakia. During the research the author used the following special methods: historical, logical, and comparative law method, which includes a variety of techniques (doctrinal, regulatory, functional comparison). As opposed to the criminal law of other European Union countries, the Slovak criminal law has remained practically unexplored by the Russian criminal law doctrine. But it is very unique because it comprises the combination of Austrian, German and Russian criminal law ideas which is conditioned by historical peculiarities of this state’s development. On the example of Slovakia, the author demonstrates possibility of combining the national legal legacy and directives of the European Union.

Keywords: comparative law, criminal law, Slovak Republic, Czechoslovakia, European Union, history, criminal offence, material element of a crime, formal element of a crime, subject of a crime.

DOI: 10.12737/16140

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CRIMINAL LIABILITY AS PROVIDED FOR UNDER THE LAWS OF THE RUSSIAN FEDERATION AND THE REPUBLIC OF VIETNAM: AGE LIMITATIONS  Pdf 16

TRAN THI TU ANH

junior scientific assistant of criminal law chair of the Moscow University of the Ministry of Internal Affairs of the Russian Federation named after V. Ya. Kikot
63, Koptevskaya st., Moscow, Russia, 125239
E-mail: tuanhtran126@gmail.com

Criminal responsibility is one of the types of legal responsibility. State agencies apply it to persons for the commission of a crime. Imposing of criminal penalties on a juvenile who has committed a socially — dangerous act is a challenging problem in criminal legislations in all countries. Age is one of a criminal’s mandatory basic characteristics that influences the differentiation of criminal responsibility for persons, who committed crime. The issue of determining the minimum and general age threshold for juveniles’ criminal responsibility is recognized to be a challenging problem. The article analyzes the importance of the age of criminals and the age of juveniles who commit crimes, for differentiation of their criminal responsibility, regulated by the Criminal Codes of the Russian Federation and the Socialist Republic of Vietnam. The author analyzes the problem of age determining when a person becomes criminally liable. The author provides recommendations on making alterations and amendments, related to determination of age limits for criminals, into the criminal legislations of Russia and Vietnam. The purpose of this article is the analysis of the age for criminal responsibility and the age of juveniles, the problem of lowering the minimum age of a criminal, and also the issue of dividing juveniles into several age groups. On the basis of the analysis, the author proposes improvements to the provision about the age of criminal responsibility in general, and the age of juveniles in particular.

Keywords: criminal law, criminal responsibility, juveniles, age of criminal responsibility, minimum age of criminal responsibility, differentiation of criminal responsibility, criminal legislation of Vietnam, Vietnam’s Criminal Code, the crime, criminal.

DOI: 10.12737/16142

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ANALYTICAL REVIEW OF THE WORK OF THE 103th PLENARY SESSION OF THE EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION)  Pdf 16

R. A. KURBANOV, O. V. SHVEDKOVA, A. M. BELYALOVA, A. N. DEMINA

R. A. KURBANOV, head of the department of scientific support of the secretariat of Russian delegation in European Commission for Democracy through Law (the Venice Commission of the Council of Europe) of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: kurbanov@izak.ru

O. V. SHVEDKOVA, senior research fellow of the department of scientific support of the secretariat of Russian delegation in European Commission for Democracy through Law (the Venice Commission of the Council of Europe) of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: venkom@izak.ru

A. M. BELYALOVA, research fellow of the department of scientific support of the secretariat of Russian delegation in European Commission for Democracy through Law (the Venice Commission of the Council of Europe) of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: venkom@izak.ru

A. N. DEMINA, junior research fellow of the department of scientific support of the secretariat of Russian delegation in European Commission for Democracy through Law (the Venice Commission of the Council of Europe) of the Institute of Legislation and Comparative Law under the Government of the Russian Federation.
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: venkom@izak.ru

This article provides a brief overview of the activities of the European Commission for Democracy through Law (Venice Commission) during the 103th plenary session, where a number of conclusions regarding the legislation of the members of the Venice Commission.

Keywords: European Commission for Democracy through Law, Venice Commission, Council of Europe, 103th plenary session, conclusion, analyses of the legislation.

DOI: 10.12737/16143

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