Contents # 6/2015

SEPARATION OF POWERS AND THE INDEPENDENCE OF CONSTITUTIONAL COURTS (in English)  Pdf 16

Christoph GRABENWARTER

member of the Constitutional Court of Austria, member of the European Commission for Democracy through Law (Venice Commission)
Freyung 8, 1010 Wien, Austria
E-mail: christoph.grabenwarter@wu.ac.at

The presented article is devoted to one of the essentially and vitally important problems of an each country state power system maintaining, which is obviously influencing the sovereignity strengthening and making the legal constitutional basis of a state more durable and stable. The author considers the various aspects of the proportionality, which is to be provided in the state powers separation principle realization, dividing them into three traditional branches on one hand, and at the same time in the promoting constitutional courts real independence in every state on the other hand. The author tries to observe the appearance and further development of two methods which might be effected in reaching these goals. From his point of view the first method should be focused on further perfecting the division of labour in the state power system, which is to promote the actual independence of constitutional courts as the integral component of one of the state power system branches and which is provided with the separation of powers principle. The other method is to make the judicial constitutional justice administration more effective and qualified, which will help to implement the proper preconditions for firm incorporation the separation of powers principle into the every days life of society and state. The author also underlines and pays everyone’s attention to the mutual interdependency and intercommunication which are existing between the above mentioned state aims of priority and the results of fulfilling them. As for the author’s own scientific and practical elaborations of the facilities and instruments which might be used in the field of the legal statehood foundations strengthening is concerned, he suggests arranging the international cooperation of the constitutional courts of the states and setting up professional links between them, starting up the state system of “constitutional culture” educational courses for the population and implementing the unified international unanimous ethical standards for estimating the features of the persons intending to become constitutional judges.

Keywords: separation of powers principle, constitutional court, constitutional judge, constitutional justice, legality, democracy, independence, state power, constitution, guidelines, judicial, judicial protection, judicial control.

DOI: 10.12737/17101

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YOUTH POLICY IN MODERN FOREIGN STATES  Pdf 16

I. G. TIMOSHENKO, A. N. PILIPENKO, N. M. KASATKINA, N. Yu. TRESHCHETENKOVA, T. I. CHURSINA, F. A. LESHCHENKOV

I. G. TIMOSHENKO, 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

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

N. M. KASATKINA, 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

N. Yu. TRESHCHETENKOVA, senior research fellow of the department of foreign public law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

T. I. CHURSINA, deputy head of the center of scientific publications, research fellow of the department of foreign public law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

F. A. LESHCHENKOV, research fellow of the department of foreign public 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: foreign2@izak.ru

The basic directions of youth policy of foreign countries, which in recent years has become one of the priority directions of the state policy in general are considered in the article. In the overall context of demographic change in the world, high unemployment among young people, negative impact on the youth of military conflicts, the radicalization of the society in the number of countries it is particularly acute vulnerability of youth part of society. Young people have to look for ways to adapt, socialize, provide a decent standard and increase quality of life. The reaction of some youth to these negative developments is the emergence of extremist youth teams, growth of alcoholism, drug abuse and youth crime that puts the state to the need for the development of an effective system of measures aimed at the prevention of these social phenomena, the protection of political, labor, social and cultural rights of young people. In foreign practice there are two basic approaches to the implementation of youth policy. The first is based on the recognition of the State's responsibility for the successful entry of young people into society. The second approach assumes that the main emphasis in the practical implementation of youth policy, the basic grounds of which are defined by the state, should be emphasised on non-governmental organizations whose activities are carried out mainly by attracting funding from various non-governmental sources.

Keywords: society, legislation, youth, state, program, sources, policy.

DOI: 10.12737/17169

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ELECTORAL DISTRICTS FORMATION AND REDISTRICTING EXPERIENCE OF CANADA REGIONS  Pdf 16

I. V. IRKHIN

associate professor of the constitutional and municipal lawchair of the Kuban State University, candidate of legal sciences
149, Stavropolskay st., Krasnodar, Russia, 350040
E-mail: dissertacia@yandex.ru

On the basis of the analysis of federal and regional level legislations, as well as judicial practice this article studies the issues of constitution-legal regulation of the order of formation and redistricting of electoral districts in the regions of the Canadian federation from a perspective of ensuring the implementation of the provisions of the Supreme Court of Canada to ensure an effective national representation (Reference re Prov. Electoral Boundaries (Sask.)). The article outlines proposals on mainstreaming the multifaceted approach of Canadian legislators and the expansion of the list of conditions that affect the ability to make decisions on formation and adjustment of electoral districts in the Russian Federation. The author uses general scientific methodology (analysis, synthesis, analogy, comparison), as well as other methods (historical, legal, historical, comparative law). For the first time the constitution-legal analysis of the Canadian Constitution provisions was carried out, as well as that of the acts of judicial practices and regional legislation regulating the procedure of the electoral districts’ formation and redistricting in the constituent entities of the Canadian federation from a perspective of ensuring the implementation of the provisions of the Supreme Court of Canada to ensure an effective national representation.

Keywords: effective representation, electoral district, the Constitution of Canada, province, legal act, judicial decision, the Supreme Court of Canada, Commission on Elections, delimitation, electoral quotient.

DOI: 10.12737/17102

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CONSTITUTIONAL-LEGAL REGULATION OF NON-GOVERNMENTAL ORGANIZATIONS IN THE RUSSIAN FEDERATION: REGIONAL ASPECT  Pdf 16

E. E. NIKITINA

leading research fellow of the constitutional law 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: сonst@izak.ru

The article is devoted to the analysis of the legislation of federal subjects of the Russian Federation in the sphere of regulation of non-governmental organizations' activities. This study was carried out on the basis of the comparative law method as a way to protect the human right to association. The article examines the problems of regional legislation quality, completeness and effectiveness of its regulatory impact on civil society in federal subjects of the Russian Federation. The author tries to answer the question what the purposes are for the existence of regional legislation on human rights. The emphasis is on the regional regulation of support for non-governmental organizations on the part of the authorities of federal subjects of the Russian Federation. The article touches upon the problems of regulation through regional laws of the activities of religious organizations as a form of non-governmental organizations. The author concludes that regional legislation in the sphere of regulation of non-governmental organizations' activities in most regions is fragmented and unsystematic, and the purposes of its existence for the protection and creation of additional guarantees of constitutional human rights in the territory of federal subjects of the Russian Federation are performed only partially.

Keywords: constitutional human rights, non-governmental organizations, civil society, regional legislation, regulation of human rights.

DOI: 10.12737/17103

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CONSTITUTIONAL AND LEGAL VALUES AND STANDARDIZED MECHANISMS IN COMBATING ILLEGAL ENCROACHMENT ON THE CONSTITUTIONAL SYSTEM  Pdf 16

D. S. MITS

expert of the advisory council of experts under the Council of Parliamentary Assembly of the Collective Security Treaty Organization, graduate student of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: a-83@bk.ru

The problem of preservation of states’ sovereignty and protection of their constitutional system is topical and demands careful scientific judgment. Undoubtedly, the leading role in the solution of the specified problem belongs to constitutional legal support in combating illegal infringement on the constitutional system which is an integral part of the constitutional system’s protection system and acts as an indicator of the level of constitutionalism and realization of constitutional and legal values. Steady integrative tendencies of the international extremism and terrorism development compel states to form consolidated approaches to combating infringement on the constitutional system. Development of theoretical aspects, and also conceptual provisions of development and improvement of constitutional legal support in combating illegal infringement on the constitutional system in the context of developing the constitutional system’s protection system is of particular importance, and the existing shortcomings in the reviewed sphere predetermine relevance of such work. The theoretical importance of the article is in systematization of knowledge about the content and implementation of constitutional legal support in combating illegal infringement on the constitutional system of the state. The practical importance of article is in defining and justifying of the prerogative directions of development of constitutional and legal values whose realization promotes the increase in the safety level for individuals, society and the state, and the creation of the relevant preventive complexes.

Keywords: constitutional and legal values, state, constitutional order, combating.

DOI: 10.12737/17104

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LEGAL PRINCIPLES OF THE AUSTRIAN TAX SYSTEM’S REGULATION  Pdf 16

O. O. ZHURAVLEVA

leading research fellow of the financial, tax and budget legislation 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: ozhura@gmail.com

According to the Concept of the Foreign Policy of the Russian Federation, the establishment of the Eurasian Economic Union is a priority for Russia. It is necessary to take into account the experience of other federal states through the integration model's creation. Austria is a federal state like the Russian Federation. The analysis of the Austrian experience in tax regulation including the implementation of supranational regulation rules in the national legislation may help to plan successful strategies. The article is focused on the legal basis for taxation in Austria. The subject of the research is the legal principles of taxation regulation, its dynamics, system and sources of tax legislation. The author concludes that 2015/2016 tax reform will change the implementation mechanisms of principles of federalism and justice. The research identifies tendencies for strengthening the role of federal regulation in taxation, harmonization of taxation procedures, revision of the economic model of taxation of physical persons' incomes.

Keywords: harmonization, EU, Austria, principles of the tax system regulation, tax reform, legal system.

DOI: 10.12737/17105

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SOCIO-LEGAL ASPECT OF COMBATING CORRUPTION  Pdf 16

S. N. MATULIS

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

The article covers the range of issues on the efficiency of combating corruption from the perspective of taking into account the role of social perception of legal norms. The author lays emphasis on the perception of corruptive relations as an object of legal pressure, and the law, as means for the implementation of the anti-corruption policy through their social nature. The author acknowledges the issuance of specialized laws and regulations to be a restricted measure, and states the need in ensuring effectiveness of the institutionalized anti-corruption norms. In this respect the author introduces the concept of social reality as a key attribute necessary to ensure the efficiency of law-making and implementation of law-enforcement processes. The article pays special attention to the problems of appearance of social alienation and formation of a consumer society, which are very topical for modern Russia. Besides, as part of the identified range of issues, the author examines taking into account of structural specific characteristics of the existing society, and the factor of social consciousness inertia which collectively considerably influence the efficiency of legal anti-corruption initiatives.

Keywords: corruption, law, the validity of norms, social capital, social alienation.

DOI: 10.12737/17106

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PROSPECTS FOR CIVIL LAW IMPROVEMENT IN THE REPUBLIC OF UZBEKISTAN IN THE SPHERE OF GOODS DELIVERY  Pdf 16

O. A. KAMALOV

head of law subjects chair of the Advanced Training Faculty of the Academy of the Ministry of Internal Affairs of the Republic of Uzbekistan, candidate of legal sciences, associate professor
68, Intizor st., Tashkent, Uzbekistan, 100197
E-mail: nuriddin77@mail.ru

The present article gives the analysis of the legal basis for a contract of supply of goods, taking into account the expansion of the coverage of delivery (export) of goods by entrepreneurs in the domestic market of other states on the basis of the prevailing current economic and socio-political factors. The feasibility of improving the standards of international legal acts and national legislation of the Republic of Uzbekistan, regulating the above legal relationships is grounded and that will convergence the national law of the states, which subjects interact on the basis of contracts of delivery of goods. The attention is focused on improving the special rules of the Civil Code of the Republic of Uzbekistan governing the supply of goods. On the basis of the controversy with the views of the author of scientists the proposals to improve the legal institution of the supply of goods are formulated.

Keywords: product supply agreement, delivery of goods, legal rules, law enforcement practice, national legislation, prospects for improvement, civil law relations.

DOI: 10.12737/17107

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ON OVERCOMING CORRUPTION RISKS IN ACTIVITY OF STATE COMPANIES AND CORPORATIONS  Pdf 16

A. M. TSIRIN

head of the department of countering corruption methodology of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, executive secretary of Interdisciplinary council for coordination of scientific, educational and methodical ensuring of countering corruption, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: antikor@izak.ru

The article contains the analysis of applying corruption risks assessment in the activity of state companies and corporations. The author proceeds from the previously expressed scientific hypothesis that only a clear bridging of anti-corruption policy with continuous corruption detection and monitoring of anti-corruption measures' efficiency will permit to avoid formalistic approach to fighting corruption and its imitation. In the article the author justifies his definition of corruption risks and suggests the assessment algorithm for such risks in relation to the activity of state companies and corporations. Besides, the technique of corruption risks' identification in state companies and state corporations should take into account peculiarities of legal statuses of these organizations and their employees. The author investigates the procedure of critical points' identification - those stages of the function implementation when commission of corruption offenses is most probable, and also proposes the list of possible results of applying this technique of corruption risks' identification. In the end the author makes the conclusion that efficiency of corruption risks' prevention or minimization can be provided only by simultaneous impact on all elements of corruption risks.

Keywords: technologies, corruption, risk, standard, communication, definition, identification, reaction, monitoring, systematization.

DOI: 10.12737/17108

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COMMERCIAL ORGANIZATIONS IN THE CIVIL CODE OF HUNGARY  Pdf 16

T. A. MERKULOVA

senior research fellow of the Centre of comparative law researches of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign3@izak.ru

The article is about the forms of joint commercial activities, contained in Book 3 “Legal Entities” of the Civil Code of Hungary, which came into force in March, 2014. The Code does not divide legal entities into commercial and non-profit organizations. On the basis of the analysis of the list of legal forms of commercial organizations the author distinguishes legal entities, whose activities are aimed at receiving profits. These forms are: business partnerships, cooperatives, business combinations and groups of enterprises. The article describes general conditions, which are typical for all forms of commercial legal units. The article pays much attention to business partnerships and their types, such as simple partnerships, limited partnerships, limited liability partnerships and joint - stock companies. The article describes some important changes in the field of commercial legal entities. For example, according to the Civil Code of Hungary simple partnerships and limited partnerships are vested with the right of legal entities. Besides, the Civil Code introduces a new for the Hungarian legislation form of commercial activities between organizations which is called a group of enterprises.

Keywords: Civil Code of Hungary, legal entity, enterprise, company, partnerships, commercial organization, corporation, reorganization, legal status, cooperative, share, profit, statute, property, mergers, register, legal situation, administration.

DOI: 10.12737/17109

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INTERRELATION BETWEEN RESTITUTION AND UNJUST ENRICHMENT: LESSONS LEARNED FROM THE EXPERIENCE OF ANGLO-AMERICAN LEGAL SYSTEM  Pdf 16

A. M. DZHANAEVA

postgraduate student of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: anna_dzhanaeva@mail.ru

The article deals with the interrelation between restitution and unjust enrichment in the Russian and Anglo-American legal systems. The analysis is based on theoretical scientific opinions, as well as on the legislation and judicial practice. The article notes that in the Russian law the “absence of grounds” principle is used for unjust enrichment (which means that if there is no legal basis for enrichment, the rules on unjust enrichment should be applied), and in order to apply the restitution rules one must prove the “unfair factor” in the form of an invalid transaction (the basis for the application of legal rules is specified). The first approach is typical for unjust enrichment in the continental law system, the second one - in the Anglo-American legal system. The Russian legislation thereby simultaneously uses two criteria - most situations are covered by the “absence of ground” principle, and restitution as a consequence of transaction invalidation is set aside, in this situation the “unjust factor” principle is applied. Mixing two different approaches seems unjustified. In addition, the author notes that legal consequences and the nature of restitution and unjust enrichment in the Russian law are basically the same - both institutions have the aim to restore the legal status that existed before the person who unjustly enriched himself breached the law. The author concludes that there is a need to avoid duplication of legal institutions of unjust enrichment and restitution in the Russian law, and to make restitution a universal protection measure for any event of unjust enrichment.

Keywords: restitution, unjust enrichment, Anglo-American law.

DOI: 10.12737/17110

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COMPARATIVE ANALYSIS OF THE HISTORY OF DEVELOPMENT OF THE MARRIAGE IN FACT INSTITUTE IN RUSSIA AND THE USA  Pdf 16

A. S. NAZAROVA

postgraduate student of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: Ann-pankratova@yandex.ru

This article is devoted to the comparative analysis of the history of development of the marriage in fact Institute in Russia and the USA. The purpose of the analysis of the development of the marriage in fact Institute is conditioned by the increase in the number of marriages in fact at the present time. The results of the National population census in 2010 showed that 13,2% of the adult population are in de facto marriages. Historical analysis allows studying the experience of the actual development of the marriage in fact institution in the past and gives the opportunity to predict the development of this Institute in future. In order to obtain the best results of the investigation, the author uses a comparative law method that allows considering the experience of not only Russia, but also foreign countries. In the article the author examines the causes and approaches to legal recognition and regulation of de facto relations in different historical periods. As a result of the conducted research the author concludes that the original form of marriage was simple cohabitation of men and women. Legal marriage appeared when the state introduced regulations for marriage registration. At the same time in certain historical periods the cohabitation of men and women had legal value due to the social need that had arisen in the society. Based on the above, there are prerequisites for legal recognition of marriages in fact in future, since in 1926 registration of a much smaller number of marriages in fact (7%) resulted in the fact that RSFSR recognized the rights of de facto spouses similar to legal spouses.

Keywords: marriage in fact, de facto partner, de facto marriage, concubinage, cohabitation of men and women, common law marriage, children of unwed parents, comparative analysis, matrimonial relations.

DOI: 10.12737/17111

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INTEGRATION AND HARMONIZATION WITHIN THE EURASIAN AND LATIN-AMERICAN LEGAL FRAMEWORK: COMPARATIVE ANALYSIS  Pdf 16

E. E. RAFALYUK, M. V. ZALOILO, N. V. VLASOVA

E. E. RAFALYUK, senior research fellow of the legal analysis and forecasting 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: rafaliuk_e@mail.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 the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: theory3@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 deals with the formation of harmonized legal framework as part of integration associations of Eurasia and Latin America. The article states that harmonization and unification of private international law is of particular importance for achieving the objectives of economic integration. The authors analyze the methods of harmonization of law in Mercosur. Harmonization of law is achieved in various ways, for example, through unification of law which permits to develop a uniform enactment for all States. Meanwhile, the method of simple convergence, coordination of national legislation of the Mercosur member states is used. The authors distinguish between the sources of primary and secondary law of the Eurasian Economic Union. The authors conclude that unlike the Commonwealth of Independent States where unification and harmonization cover private and public law, the convergence of legal systems of the member States of the Eurasian Economic Union deals mainly with public law issues. Along with strict public law regulation within the Eurasian Economic Union, the authors propose the formation of flexible private law rules contained in the soft law, and the Principles of the Eurasian private law can serve the basis for that. The authors note that one of the objectives of harmonization and unification of the law of integration associations is the formation of the community law - an autonomous legal system which is applied on the basis of the direct action principles, direct application and the supremacy over domestic law. Following the results of study the authors conclude that the majority of the integration associations in Latin America and Eurasia are only on the way toward the community law formation.

Keywords: integration, Latin America, Mercosur, the Commonwealth of Independent States, the Eurasian Economic Union, harmonization, unification, integration law, community law, supranational law.

DOI: 10.12737/17112

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OPINION 2/13 OF THE COURT OF JUSTICE OF THE EUROPEAN UNION: ANALYSIS AND FURTHER PERSPECTIVES OF EUROPEAN UNION ACCESSION TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS (in English)  Pdf 16

N. I. DAMINOVA

PhD candidate in european law, the Sant ’Anna School of Advanced Studies (Scuola Superiore Sant’Anna), Institute of Law, Politics and Development (Instituto DIRPOLIS)
33, Piazza Martiri della Libertá, 56127, Pisa, Italy
E-mail: nasiya.daminova@sssup.it

This paper is devoted to the legal analysis of CJEU Opinion 2/13 on European Union accession to the European Convention on Human Rights. The article examines the CJEU’s approach to the interpretation of Art. 267 and 344 of the Treaty on the Functioning of the European Union - in the light of Protocol No. 16 to the European Convention on Human Rights, as well as the previous case law of the Court of Justice (Mox Plant and Melki and Abdeli). The conclusions are drawn as to the manner in which Opinion 2/13 develops EU legal order autonomy doctrine and how it affects the future perspectives of EU accession to the European Convention on Human Rights. Firstly, while interpreting the content and purpose of Art. 344 TFEU, the CJEU gives a positive answer to the question as to whether the ECHR compliance system falls within the ambit of this Treaty provision. Secondly, the Court of Justice takes an extremely protective approach in giving its interpretation to the role of preliminary rulings procedure guaranteed by Art. 267 TFEU for the unity and efficiency of European law, making even the legal protection of individuals secondary to these purposes. It is quite probable that the accession will be delayed for an indefinite period of time - due to the likely impossibility of reaching a consensus on a new version of the Draft accession agreement with all members of the Council of Europe (such as Russia, Ukraine and Turkey) in the very near future. At the same time, European Union accession to the European Convention on Human Rights remains a legal duty in accordance with Art. 6 Treaty on the European Union (TEU), Declaration No. 2 on Article 6 (2) TEU and Protocol No. 8 to the Lisbon Treaty.

Keywords: EU accession to the ECHR, EU legal order autonomy doctrine, Opinion 2/13, Art. 267 TFEU, Art. 344 TFEU, Protocol No. 16 ECHR.

DOI: 10.12737/17170

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ON THE ROLE OF POLITICAL FACTORS IN INTEGRATION PROCESSES (ON THE EXAMPLE OF MERCOSUR)  Pdf 16

D. R. PAYGINA

junior research fellow of the department of theory of legistation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: theory@izak.ru

The article analyzes the role of political factors in integration processes. Their implementation is a key component of the foreign policy of any state. As is generally known, the strategy of mutual relations of various countries is determined by a number of political factors, taking into account the interests of the community or competition in various spheres of cooperation. At the same time political factors are seen as the driving force of any process imposed by a public authority. It seems that the effect of political factors in this context is reflected in the fact that during the decision-making the stakeholders of the international integration seek to satisfy their own interests. The condition of mutually beneficial relationships, which has a clear political and economic context, is one of the key conditions in resolving the issue of states’ entering into the integration process. The content of political factors includes not only the political nature of states’ activities at the international level, but also the causes and the circumstances under which these decisions were taken. Thus, political factors are one of the major reasons for making key decisions in the implementation of international integration processes.

Keywords: integration processes, political factor, integration of South American states, political regime, international cooperation.

DOI: 10.12737/17113

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CEPEJ AS THE CONSULTATIVE BODY OF THE COUNCIL OF EUROPE, GRANTED WITH THE RESPONSIBILITY OF DEVELOPING AND IMPLEMENTING COMMON STANDARDS IN THE SPHERE OF THE DELIVERY OF JUSTICE (in English)  Pdf 16

R. A. ogly GURBANOV

leading research fellow of the department of international relations and international law of the Institute of Philosophy and Law of the National Academy of Sciences of Azerbaijan, member of the Bureau of the European Commission for the Efficiency of Justice
115, Huseyn Javid prospekt, Baku, Azerbaijan, AZ1073
E-mail: ramingurbanov@yahoo.com

The article is devoted to the work of the European Commission for the Efficiency of Justice, which is the consultative body of the Council of Europe and plays an important role in improving the justice systems of states — members of this regional organization. Byevaluating the quality of justice of the Council of Europe Member-States using own methods, CEPEJ determines problematic aspects of the functioning of the justice system of individual states and proposes ways to resolve them, thus making a significant contribution to the realization and protection of the human right to a fair trial enshrined in Article 6 of the European Convention
on Human Rights.

Keywords: Council of Europe, consultative body, commission, efficiency of justice, European Convention on Human Rights, member-states, quality of justice, dispute resolution, case-law, European Court of Human Rights.

DOI: 10.12737/17114

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REGULATORY MEASURES AGAINST “DRUNK DRIVING”: CHINA’S EXPERIENCE  Pdf 16

P. V. TROSHCHINSKIY

senior research fellow of the department of East-Asian legal researches 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: troshc@mail.ru

The subject of this research includes legal regulations imposed by the Chinese government to combat alcohol (drug-)-impaired driving, and the most high-profile cases containing the elements of the offence at hand are listed as well. The author analyzes the current legislation of the People’s Republic of China that sets out criminal, administrative and disciplinary liability for “drunk drivers”. The research also includes provisions of the PRC Criminal Code, the Law of the People’s Republic of China on Road Traffic Safety, several regulatory instruments adopted by various national authorities, the PRC’s Supreme People’s Court’s elucidation on applying the existing legal regulations in the analyzed sphere. Special attention is paid to the statistical data that confirm the high degree of public danger of the offence at hand, as well as its influence on the overall criminal situation in the country. The conducted research is based on the comparative law methodology; a systematic approach, technical, historical and statistical methods are used to achieve objectives stated in the article. The academic novelty of the research is that comprehensive analysis of the Chinese government’s fight against “drink driving” (its regulatory aspect) has been carried out for the first time in the Russian Jurisprudence and Chinese studies. It is worth mentioning that Chinese law-makers have chosen to include into the Criminal Law a provision criminalizing the alcohol-(drug-) impaired driving regardless of the consequences. This step was preceded by a considerable increase in the number of road accidents caused by drunk drivers. Should two or more people die, Chinese courts impose harsh criminal liability measures on the perpetrator, up to life imprisonment or, in certain cases, even to capital punishment. Moreover, the “drunk driver” is to be dismissed from the civil service and expelled from the ruling party, if he was convicted of the offence at hand. Measures imposed by Chinese law-makers resulted in drastic decrease in the number of road accidents caused by drunk drivers, as well as in considerable decrease in the number of people killed on the Chinese roads.

Keywords: China, criminal responsibility, death penalty, driving, legal system, legislation, regulation, traffic accident, comparative jurisprudence, judicial sentence.

DOI: 10.12737/17115

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INSTITUTIONAL AFFILIATION OF AN INVESTIGATOR IN THE FORMER USSR REPUBLICS: COMPARATIVE LAW ASPECT  Pdf 16

A. A. TREFILOV, S. A. BOCHININ

A. A. TREFILOV, senior 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: trefilovaa1989@gmail.com

S. A. BOCHININ, lecturer of the criminal procedure law chair of the Khabarovsk State University of Economics and Law, candidate of legal sciences
134, Tikhookeanskaya st., Khabarovsk, Russia, 680042
E-mail: bochinin75@rambler.ru

On the basis of regulatory and doctrinal sources the authors consider the issue about which procedural subject possesses the status of an investigator in the states of the former USSR. The authors prove that the problems that are facing the CIS and the Baltic states in the sphere of organizing pre-trial proceedings, in particular, that of institutional affiliation of an investigator, are inherited from the Soviet time, since it was during this period that investigation ceased to be judicial. It is justified that the majority of the CIS countries have preserved the model of organizing pre-trial proceedings that existed in the Soviet times; and only four countries - Kazakhstan, Russia, Belarus and Ukraine attempted to create a body authorized exclusively for the conduct of preliminary investigation. It is justified that due to this fact it is impossible to consider the creation of investigative committees in the former USSR states as a universal trend. The authors demonstrate that some countries from this group have created investigative committees while others have not. At the same time in none of the legal orders preliminary investigation has become judicial.

Keywords: former USSR, investigator, investigating judge, preliminary investigation, inquiry, pre-trial proceedings.

DOI: 10.12737/17116

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PECULIARITIES OF CRIMINAL-PROCEDURAL ACTIVITY OF THE PUBLIC PROSECUTOR IN PRE-TRIAL PROCEEDINGS IN FOREIGN COUNTRIES  Pdf 16

K. A. TABOLINA

leading professional of board of management of the Prosecutor General’s Office of the Russian Federation
15A, Bolshaya Dmitrovka st., Moscow, Russia, 125009
E-mail: kysi-kyss@yandex.ru

This article is dedicated to peculiarities of criminal-procedural activity of the Public Prosecutor in pre-trial proceedings in foreign countries. In this regard, the author studied the provisions of the constitutional and criminal procedure legislation of all member states of the Commonwealth of Independent States (the Azerbaijan Republic, the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Kyrgyz Republic, Moldova, Tajikistan, Turkmenistan, Uzbekistan, Ukraine), Georgia, and Federal Republic of Germany, and presented in the article foreign experience of the French Republic and the United States of America. According to the results of the analysis the conclusion is drawn concerning the role of public prosecution in foreign countries, the main activities of the Public Prosecutor in pre-trial criminal procedure of these countries and the scope of the powers of the Public Prosecutor in pre-trial proceedings in foreign countries and its relationship with the form of the preliminary investigation.

Keywords: powers of the Public Prosecutor, criminal prosecution, Public Prosecutor’s supervision, Public Prosecutor, pretrial proceedings, criminal procedure law, comparative law, institution of criminal case, preliminary investigation, the end of the preliminary investigation.

DOI: 10.12737/17117

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THE UN ANTI-CORRUPTION CONFERENCE IN 2015 IN RUSSIA: NEW APPROACHES AND IDEAS  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 the Russian Academy of Sciences, member of the European Commission for Democracy through Law (the Venice Commission of the Council of Europe), doctor of law, professor, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office@izak.ru

The present article is devoted to the analysis of the main approaches and ideas in the field of partnership between the state and business in countering corruption pronounced at the side-event of VI session of the United Nations Anti-Corruption Conference which took place on November 2—6, 2015 in St. Petersburg. The side-event was co-organized by the Chamber of Commerce and Industry of the Russian Federation, United Nations Office on Drugs and Crime (UNODC) and the Institute of Legislation and Comparative Law under the Government of the Russian Federation which performs functions of coordinating scientific and methodological support in fighting corruption. Participants of the side-event elaborated decisions which determine the trajectory of international and national efforts in the sphere of corruption and criminalization of corruption offenses’ prevention, recovery of stolen assets and rendering anti-corruption technical assistance.

Keywords: conference, report, partnership, corruption, money laundering, policy, bases, structure, protection.

DOI: 10.12737/17172

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CONTENT OF INTERNATIONAL LEGAL RESPONSIBILITY IN WTO LAW: THE GENERAL PRINCIPLES AND APPROACHES  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 present article discusses the main features of the content of international legal responsibility of the law of the World Trade Organization (WTO). Analysis of the concept of “content” of international legal responsibility is based on the Draft articles on responsibility of states for internationally wrongful acts, prepared by the UN International Law Commission in 2001, as well as the differences in the conceptual underpinnings of the responsibility, which is held on the various speakers’ issue. The author shares the view that the specificity of the institute of responsibility in WTO law in comparison with the general international law (Draft of UN International Law Commission), can be explained in terms of the fact that WTO law serves a lex specialis in relation to general international law. Review and comparison of the provisions of the Draft of UN International Law Commission and the Dispute Settlement Understanding of the WTO has allowed to conclude that the philosophy of the basic principles of the content of the international responsibility in these documents are very close to or even in the ground is the same. The article investigated the basic concept of a “violation of obligations” in WTO law and obligations of the members of the organization to terminate the offense. It is concluded that in spite of the individual features of the implementation requirements to provide “assurances and guarantees” prohibiting further violations of the WTO agreements, in general, WTO law ensures compliance with the obligation to cease the wrongful conduct.

Keywords: general international law, WTO law, contents of international legal responsibility, internationally wrongful act, termination of the offense, appropriate assurances and guarantees of non-violation of international law.

DOI: 10.12737/17173

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EXPERIENCE OF CRIMINAL LAW PROTECTION OF INTELLECTUAL PROPERTY IN THE STATES — CIS PARTICIPANTS AGAINST THE BACKGROUND OF COMPARATIVE LAW  Pdf 16

S. P. SHCHERBA

head of section of international cooperation and comparative law of the Research Institute of the Academy of the Prosecutor General’s Office of the Russian Federation, doctor of legal sciences, professor, honored scientist of the Russian Federation
15, 2 Zvenigorodskaya st., Moscow, Russia, 123022
E-mail: niigp@msk.rsnet.ru

Against the background of comparative law the article examines experience of legislative regulation of criminal law protection of intellectual property against criminal attacks in the states – CIS participants, it also discloses the possibilities of harmonization and unification of the criminal law of the Commonwealth countries regarding the acts infringing upon copyright and related rights, in order to create a single regulatory framework for international cooperation in this field.

Keywords: copyright and other intellectual property rights, responsibility for criminal attacks on intellectual property in criminal codes of the CIS countries.

DOI: 10.12737/17175

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PROBLEMS OF LEGAL REGULATION OF LEGAL ENTITIES IN KAZAKHSTAN  Pdf 16

M. K. SULEYMENOV

director of the Research Institute of Private Law of the Caspian University, academician of the National Academy of Sciences of the Republic of Kazakhstan, doctor of legal sciences, professor
521, Prospekt Seyfullina, Almaty, Kazakhstan, 050000
E-mail: smaidan1941@mail.ru

This article deals with the issues related to the establishment of the legislation on legal entities in Kazakhstan, beginning with the 1991 Law on Enterprises and ending with the Laws enacted on the basis of the Civil Code of the Republic of Kazakhstan. Further, the article resolves most topical issues regarding legal regulation of legal entities. Considerable attention is paid to the concept of corporation and corporate relations. On the basis of the analysis of disputable viewpoints the author arrives at the conclusion that corporate relations constitute a part of the in-house relations regulated by civil standards. This is possible in virtue of the fact that the General Meeting is not a corporate body; rather it serves as an expression of the incorporators’ will. The article also tackles the issues on regulation of the activities of state legal entities, in relation to which the Law on the State Property is adopted in the Republic of Kazakhstan.

Keywords: legal entities, the Civil Code, corporation, corporate relations, in-house relations, the General Meeting, state legal entities, Joint-Stock Companies and Limited Liability Partnerships partially owned by the government.

DOI: 10.12737/17118

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LEGAL REGULATION OF POWER INDUSTRY WITHIN THE FRAMEWORK OF INTERNATIONAL AND REGIONAL ORGANIZATIONS  Pdf 16

R. A. KURBANOV, A. M. BELYALOVA

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

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

At the present stage of the modern society development energy security becomes increasingly important for both individual states and the whole world. Therefore it is logical that states are establishing increasingly close cooperation to ensure energy security in the framework of existing regional organizations. The article describes examples of cooperation in the energy sector within the framework of major regional associations that exist in North and South America, such as North American Free Trade Agreement (NAFTA), the Organization of American States, the Caribbean Community (CARICOM), the Community of Latin American and Caribbean States (CELAC). This study is particularly relevant as the analyzed organizations unite both developed and developing countries. The cooperation experience of the American States in the energy sector may also be useful in the context that there are a number of regional organizations in the Eurasian region which also pay considerable attention to the issues of energy security, energy efficiency and environmental protection.

Keywords: energy security, North America, Latin America, Caribbean, North American Free Trade Area, Organization of American States, environmental law, energy law, regional integration, electric power, energy.

DOI: 10.12737/17176

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THE DOCTRINE OF PRIVATE INTERNATIONAL LAW: THE THEORY OF STATUTES IN GERMANY AT THE END OF XVII CENTURY (JOHANN SHILTER AND SAMUEL STRYK)  Pdf 16

I. V. GETMAN-PAVLOVA

associate professor of the chair of public and private international law of the National Research University “Higher School of Economics”, candidate of legal sciences
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: getmanpav@mail.ru

The article investigates the development of the German doctrine of private international law at the end of the XVII century, in particular, the author analyzes the essays of Johann Schilter and Samuel Stryk. Among the German scholars engaged in the problems of the conflict of laws, Johann Schilter and Samuel Stryk are very prominent, however, their creativity and their contribution to the development of the doctrine of the conflict of laws rules are virtually unknown in Russian jurisprudence. They adhered to the opinion on dividing all statutes into three groups, but they preferred not to use the terms statutes personalia, realia, mixta. However, neither Shilter nor Stryk accepted the Dutch comitas gentium doctrine, so it is impossible to consider these scholars to be representatives of the “Dutch-German version of the theory of the statutes” as a concept, which is based on international comity. They attempted to explain the application of foreign laws from the standpoint of humanism and jus divinum. Shilter and Stryk’s conflict doctrines are of great interest and demonstrate the specificity of the German conflict doctrine, which has had a significant impact on the development of the legislation on German PIL.

Keywords: private international law, theory of statutes, trichotomy of statutes, idea of international community, humanism, jus divinum, Germany, end of the XVI century, Johann Schilter, Samuel Stryk.

DOI: 10.12737/17119

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FEATURES OF ECONOMIC (BUSINESS) ACTIVITY IN THE ENERGY SECTOR  Pdf 16

R. N. SALIEVA

head of laboratory of legal problems subsoil, ecology and energy complex use of the Institute for Environmental Problems and Subsoil Use Tatarstan Academy of Sciences, professor, doctor of legal sciences
28, Daurskaya st., Kazan, Republic of Tatarstan, Russia, 420087
E-mail: sargus6@yandex.ru

The article highlights the features of economic activity in the energy sector. Economic activity associated with generation, transformation, transmission and use of different forms of energy, is carried out by business organizations of different branches of the energy sector of economy. In this article the author analyzes the structure of the energy sector, including oil and gas sector, coal sector, power generation and nuclear energy sector, as well as alternative energy sector. The author provides the definition of the economic activity in the energy sector taken from the Energy Charter Treaty. The author underlines that the energy sector is closely connected with the use of natural resources, as well as with the energy production, processing and marketing. It is advisable to consider such relations as business relations. They are ruled by the Energy law. The author provides examples of legislative establishment of economic activities in certain energy sectors of the Russian economy (in the sphere of Atomic Energy and in Chapter 8 of the Law of the Russian Federation “On Power Industry”). The author draws the conclusion about the need to improve the legislative system in the sphere of power industry.

Keywords: energy, energy legislation, economic (business) activity in the energy sector, legal regulation in the energy sector.

DOI: 10.12737/17177

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LAW AND ECONOMIC ACTIVITY: MODERN CHALLENGES (Review of X Annual Scientific Conference in Memory of Professor S. N. Bratus)  Pdf 16

A. V. BELYAKOVA, O. A. ZOLOTOVA, O. V. MURATOVA, O. A. SIMVOLOKOV, V. M. SMIRNOVA, F. V. TSOMARTOVA, M. L. SHELYUTTO

A. V. BELYAKOVA, research fellow of the Institute of Legislation and Comparative Law under the Government of Russian Federation

O. A. ZOLOTOVA, senior research fellow of the Institute of Legislation and Comparative Law under the Government of Russian Federation, candidate of legal sciences

O. V. MURATOVA, junior research fellow of the Institute of Legislation and Comparative Law under the Government of Russian Federation

O. A. SIMVOLOKOV, leading research fellow of the Institute of Legislation and Comparative Law under the Government of Russian Federation, candidate of legal sciences

V. M. SMIRNOVA, research fellow of the Institute of Legislation and Comparative Law under the Government of Russian Federation

F. V. TSOMARTOVA, research fellow of the Institute of Legislation and Comparative Law under the Government of Russian Federation

M. L. SHELYUTTO, leading research fellow 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: civil@izak.ru

The review reflects main ideas expressed in the reports of the participants of X conference in memory of Professor S. N. Bratus, a famous civil lawyer and legal theorist. The conference is held annually in the Institute of Legislation and Comparative Law under the Government of the Russian Federation. During the conference the participants discussed controversial issues of the development of legislation on the law of things, status and activities of legal entities in the sphere of intellectual property, power industry, use of natural resources and ecology, labor legislation, the problem of Russia’s simultaneous participation in WTO and EAEU.

Keywords: scientific conference in memory of S. N. Bratus, law of things, legal entities, energy law, labor legislation, Eurasian Economic Union.

DOI: 10.12737/17380

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REVIEW OF THE JOINT SEMINAR OF YOUNG SCIENTISTS FROM THE INSTITUTE OF LEGISLATION AND COMPARATIVE LAW UNDER THE GOVERNMENT OF THE RUSSIAN FEDERATION AND PETROZAVODSK STATE UNIVERSITY FACULTY OF LAW  Pdf 16

G. E. MAMTSEV, F. A. LESHCHENKOV

G. E. MAMTSEV, junior research fellow of financial, tax and budget legislation 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: metallgera@gmail.com

F. A. LESHCHENKOV, research fellow of the department of foreign public 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: morimoo@yandex.ru

The present publication provides the review of the joint seminar of young scientists from the Institute of Legislation and Comparative Law under the Government of the Russian Federation and Petrozavodsk State University faculty of law which took place on April 29, 2015 in Petrozavodsk. During the event the main activities of the Institute were presented. Particular attention was paid to such areas as scientific legal support of activities of the Government of the Russian Federation, carrying out basic and applied scientific researches in legal sphere, examination of legal experience of foreign states and international associations, realization of functions of the interdisciplinary center for coordinating scientific and educational methodological support in combating corruption, realization of policy in education and professional development, performance of functions of the Secretariat of the Russian Federation delegation in the European Commission for democracy through law, activities of the Council of young scientists and the Council of graduate students, etc. At the same time, special attention was also paid to the questions of participation of youth in the Institute's scientific life and involvement of young scientists-lawyers in joint research projects. During the seminar the foundation was laid for the main areas of interaction between the young scientists of the Institute and the University, including publishing of the results of joint scientific researches in publications of the Institute and the University, participation in the events held by the Institute and the University, involvement of the University graduates in the Institute's Master programs, exchange in educational and scientific literature, etc. The seminar proceeded in a friendly businesslike atmosphere; its participants recognized the efficiency of the held meeting.

Keywords: Institute of Legislation and Comparative Law under the Government of the Russian Federation, Petrozavodsk State University, seminar, law, cooperation, comparative law.

DOI: 10.12737/17120

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