Contents # 1/2016

FEATURES OF JUDICIAL PRECEDENT IN THE ROMAN-GERMAN SYSTEM OF LAW  Pdf 16

M. N. MARCHENKO

head of the chair of theory of state, law and politology of law faculty of Lomonosov Moscow State University, doctor of legal sciences, professor, honored scientist of the Russian Federation
1, Leninskie Gory, Moscow, Russia, 119991
E-mail: theory.law.msu@gmail.com

The article deals with the main features and characteristics of judicial precedent in the Roman-German law system in comparison with the “classical” precedent - a source of Anglo-Saxon law. Among the features of the system of judicial precedent in the Roman-German law are the following: ambiguity of the phenomenon of precedent and its continental doctrine and concepts; secondary and dual nature of the precedent over other sources of law of that legal family; selective attitude to different branches of law; diversity of the legal basis of precedents in different countries and differentiated approach to the recognition of legal effect of precedents. The technical and legal aspects of a precedent in the system of the Roman-German law, in particular the special nature of the publications of decisions of the higher courts and others are pointed out. The main features and characteristics of judicial precedent and its doctrine in the Roman-German law are disclosed by the example of case law of Germany, France, Spain, Italy and some other countries.

Keywords: precedent, Roman-German law, doctrine, interpretation of law, judicial law, sources of law.

DOI: 10.12737/18172

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PRINCIPLE OF AVOID REPEATED IMPOSITION OF SANCTIONS FOR THE SAME OFFENSE  Pdf 16

S. G. VASILEVICH

associate professor of the 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 analyzes the contents of the principle of inadmissibility of re-bringing to legal liability for the same offense; features of its implementation are shown, taking into account a combination of various types of legal liability. The analysis shows that the current legislation and practice in this area is not quite balanced, there are issues that need to be resolved. The author concludes that the implementation of principle of inadmissibility of re-bringing to legal liability for the same offense in law and practice is essential for the formation of the state as a legal and democratic, respectful of the rights and freedoms of citizens, ensuring their right to a fair trial. This principle should be fixed in acts of criminal, administrative and labor legislation, with a base value for the resolution of aspects of legal liability. As an example the author proposes to consolidate that principle in the law on legal acts.

Keywords: responsibility, repeated imposition of sanctions, offense.

DOI: 10.12737/18173

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TRENDS OF CONSTITUTIONAL DEVELOPMENT OF STATES IN THE CONTEMPORARY WORLD  Pdf 16

Yu. A. TIKHOMIROV, S. B. NANBA

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

S. B. NANBA, senior 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: const@izak.ru

Constitutional processes in the contemporary world are flowing slowly, then quickly, then subside. This is due to a real role in the lives of states and their impact on social processes. The strongest influence is achieved in terms of preparation and holding of the constitutional reform, when there are qualitative changes in the structure of political power, legislation, institutes for economic and social development. Therefore careful preparation of the reform allows to anticipate and eliminate risk, and ensure flexible regulation of course of constitutional reforms. The intended purposes of the reform as for the experience of various countries are achieved when “constitutional cycles” are taken into account, when on a systematic basis institutional, legal and other elements of the reform are prepared and implemented, when civil society supports the constitutional reforms. Conversely, failure to follow these requirements inevitably can reduce the potential for constitutional reforms. Therefore, the current value is to study the dynamics of the constitution as “a legal growth” between national and international law.

Keywords: constitution, constitutional process, constitutional reforms, political authority, legislation.

DOI: 10.12737/18175

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LEGAL INSTITUTIONALIZATION OF ETHNIC GROUPS ON THE EXAMPLE OF PARTICULAR FEDERATIONS OF ASIA AND AFRICA  Pdf 16

A. V. BLESHCHIK

lecturer of the constitutional law department of the Ural State Law University, candidate of legal sciences
21, Komsomolskaya st., Yekaterinburg, Russia, 620137
E-mail: bleszczyk@yandex.ru

This article dwells upon the certain theoretical issues of the legal institutionalization of ethnic groups including nations, peoples, tribes, etc. The article introduces the definition of legal institutionalization of ethnic groups basing on the definition of institutionalization which is commonly used in sociology and several legal sciences. The author describes the most popular forms of ethnic institutionalization within the context of global state-building experience. With a view of further comparative research the author pays special attention to the consideration of the issue of ethnic institutionalization in a federative state. Basing on the analysis of the different forms of ethnic institutionalization the article estimates the effectiveness of the ethno-political stabilization concerning the experience of multinational federations of Ethiopia, India and Iraq. The author also distinguishes the special features of the national federative models realized in abovementioned young federations.

Keywords: legal institutionalization of ethnic groups, ethnic federalism, federal entity, ethno-political stabilization, Ethiopia, India, Iraq.

DOI: 10.12737/18177

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ISSUES OF CRIME AND PUNISHMENT IN CONSTITUTIONAL ACTS OF ASIAN COUNTRIES  Pdf 16

Yu. A. LIVADNAYA

post-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: yulia.liwadnaya@yandex.ru

The current article presents a comparative legal analysis of existing constitutions and acts of constitutional meaning of Asian States, which allowed the author to disclose universal and individual approaches of understanding of legal nature and concept of notion of crime and punishment as applied to constitutional legal regulation. Examples of identical statement of the main elements of crime and punishment in the constitutional acts of Asian countries (crime and punishment established by a law; punishment is determined by the court for act, which is an offence by the law at the moment of its commission; nobody can be subject to sentence more than is provided by the law at the moment of the crime; punishment has individual character) and the original national regulation of protection of separate public relations from criminal infringements (inviolability of state authority, public order and security, individuals’ rights and freedoms, right of ownership, historical and cultural heritage) are provided. The author made a conclusion that universal and individual approaches of understanding of legal nature and content of notion of crime and punishment are not strongly differentiable in constitutions of Asian countries. They are closely bound and are in constant cooperation. This is particularly evident when questions connected to deprivation of passive and (or) active electoral right as well as dismissal of heads of states and disqualification of officials of public authorities.

Keywords: constitution, Asian countries, crime, punishment, sharia, death sentence, deprivation of freedom, forfeiture of estate, state protected assets, deprivation of electoral right, dismissal.

DOI: 10.12737/18178

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SUBJECT OF TRANSNATIONAL BRIBERY IN THE CRIMINAL LEGISLATION OF FOREIGN COUNTRIES: THE MAIN APPROACHES  Pdf 16

E. L. SIDORENKO

head of the laboratory of criminology analysis and forecasting of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, associate professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: 12011979@list.ru

This paper presents a comparative analysis of the criminal legislation of the USA, Germany and France in terms of responsibility for the regulation of active and passive bribery of foreign public officials and officials of public international organizations. The focus is on consistency between national law and the provisions of the Convention of the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. On the basis of the comparative and formal-legal methods, the author reveals a number of features that allow to speak of a legal models to counter transnational bribery. The study of criminal law, special laws and judicial precedents it possible to designate a tendency to expand the subjects of international bribery by members of the judiciary, a representative of non-governmental organizations and to identify main approaches to the development of Russia’s criminal policy.

Keywords: corruption, transnational bribery, foreign official, official of public international organizations, the Convention of the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Organisation for Economic Cooperation and Development.

DOI: 10.12737/18181

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INTERACTION OF LAW ENFORCEMENT AGENCIES WITH THE POPULATION AS A FACTOR OF NATIONAL SECURITY  Pdf 16

A. K. KANATOV, M. N. BARANOV

A. K. KANATOV, chief expert-head of the department of the criminal, criminal procedure, criminal law enforcement and forensic of the Institute of Legislation of the Republic of Kazakhstan, candidate of legal sciences
8, Orynbor st., Astana, Kazakhstan
E-mail: kahatov_76@mail.ru

M. N. BARANOV, leading research fellow of the department of the criminal, criminal procedure, criminal law enforcement and forensic of the Institute of Legislation of the Republic of Kazakhstan, candidate of legal sciences
8, Orynbor st., Astana, Kazakhstan
E-mail: kahatov_76@mail.ru

Various forms of cooperation between law enforcement authorities and the public (civil society) in the fight against offenses in order to strengthen national security are detailed in the article. Among the law enforcement agencies the following authorities are highlighted: the prosecuting authorities, internal affairs bodies, state fire service, anti-corruption service and the service of economic investigations, which are operating in accordance with the legislative acts of the Republic of Kazakhstan. Certain aspects are researched, the principles for such interaction are proposed. Within counteract threats to national security the author fragmentarily emphasized in particular, social security, military security, political security, economic security, informational security and environmental safety. The role of inter-ministerial committees for prevention of offenses under the Government of the Republic of Kazakhstan and the public councils under law enforcement bodies was distinguished. The authors note that the participation of public organizations in law enforcement activities of the state is provided by the Plan of measures on realization of the State Program of further modernization of the judicial system of the Republic of Kazakhstan for 2014-2020. The mandatory learning of the basics of personal and public safety by citizens, involved in law enforcement activity and the need of methodological and logistical support is provided.

Keywords: law enforcement system, cooperation, national security, public.

DOI: 10.12737/18182

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SOME ASPECTS OF THE DEVELOPMENT AND APPLICATION OF THE LEGAL INSTITUTION OF SELF-DEFENSE IN THE USA  Pdf 16

T. R. SHAYAKHMETOV

post-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: alienfrost@rambler.ru

This article reviews the development of the legal institution of self-protection in the criminal law of the United States and its law-enforcement practice. The problems of the two-level division of criminal legislation on the illegal self-defense and legal regulation in the field of defense in the territory of the home and private property are viewed in the paper. On the examples of precedent decisions of highest judicial bodies of US on the affairs with the circumstances of self-defense the conditions of validity of the use of deadly opposition in relation to the offender, as well as other legal aspects of self-defense are analyzed. A brief overview of the main trends of the evolution of the United States legislation on the considered institute is given. In the conclusion of this work the strong and weak points of the existing regulatory framework of the right to self-defense in the United States are shown, as well as an assessment of its application in practice.

Keywords: self-protection, self-defence, history of self-protection, castle doctrine, justifiable homicide, United States of America, criminal law of USA.

DOI: 10.12737/18183

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NONPROFIT LEGAL ENTITIES IN THE LEGISLATION OF CZECH REPUBLIC AND SLOVAKIA  Pdf 16

O. M. SAKOVICH

leading research fellow of the Centre of comparative law research 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: foreign3-5@izak.ru

The author observes different stages of legal regulation of nonprofit organization activities from 1990 till our days in Czech Republic and Slovakia in presented article. The author attends the reforms of civil legislation, which were carried out in this states, and notes the differences in methods of carrying out the reforms in Czech Republic and Slovakia, in spite of existing dualism of private law in both countries. The article reveals the results of Czech reforms of legislation, regulating nonprofit legal persons. The author examines the established system of common and special laws, regulated nonprofit organizations in Czech Republic and Slovakia and points out their identity and differences. Author reviews the law terms which are used in legislation and science literature of both states. Also author underlines that in the civil codes of Czech Republic and Slovakia legal persons are not divided into commercial legal entities and nonprofit legal entities. The types of nonprofit organizations in Czech Republic and Slovakia are examined in the present article and the main attention author pays to government legal persons and their structure. Author explores legislative regulation of commercial activities of nonprofit organization. Also author of the article pays attention to fund-raising of nonprofit organizations and their taxation. On the basis of the research the author defines the trends of legal regulation of this category of legal persons, and underlines the importance of the nonprofit sector in social and economic life in the Czech Republic and Slovakia.

Keywords: nonprofit legal persons, legal entities, legal regulation, law, civil code, reform, private law, association, governing bodies, fund-raising, taxation, Czech Republic, Slovakia.

DOI: 10.12737/18184

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LEGAL REGULATION OF THE USE OF ASSISTED REPRODUCTIVE TECHNOLOGIES BY PERSONS, NOT MARRIED AMONG THEMSELVES, IN RUSSIA AND THE USA  Pdf 16

A. S. NAZAROVA

post-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: Ann-pankratova@yandex.ru

This article is devoted to analysis of legal regulation of the use of assisted reproductive technologies by persons, not married among themselves, in the Russia and the United States. The purpose of this work is due to the increase in the number of actual marital relations in the modern world and the emergence of new ways of human reproduction. In Russia 13% of the adult population are in unregistered marriages. For best results of the investigation, the author used a comparative legal method, that allows to consider the experience of not only Russia, but also foreign countries. The author of the article examines the existing in Russia and the US versions of legal regulation of the use of assisted reproductive technologies by persons not married to each other. The author compares the regulation of the legal consequences of persons, married and non-married among themselves. As a result of the conducted research the author comes to the conclusion that in Russia the legal regulation of the effects of the use of assisted reproductive technologies differ depending on the marital status among themselves. Persons, who are not married, are not subject to special provisions of the Family Code of the Russian Federation, dedicated to regulation of the legal implications of the use of reproductive technologies. In the US it is fixed the same procedure for determining the origin of a child, conceived by nontraditional means, regardless of the status of persons in marriage.

Keywords: de facto marriage, assisted reproductive technologies, establishment of origin of the child, surrogacy, de facto spouse, children born out of wedlock, the child’s parents, maternity, paternity, the principle of equality children, children conceived through assisted reproductive technologies.

DOI: 10.12737/18186

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TAXATION OF FOREIGNERS IN SUCCESSION IN THE USA  Pdf 16

V. B. PANICHKIN

associate professor of the department of civil law and procedure of the Novokuznetsk Institute of Kemerovo State University, candidate of legal sciences
19, Prospekt Metallurgov, Novokuznetsk, Russia, 654000
E-mail: panslavic@mail.ru

The article contains the analysis of estate and inheritance taxation of aliens (foreigners without permanent residence) in USA in comparison with the same taxation of US residents. The actuality of this topic is explained with the quantity of Russian speaking population in USA as good as with the perspectives for successors of Russian businessmen - holders of US corporate papers and trusts to be faced with US death taxes. The article reveals the all taxes must be levied by aliens, the combination of the estate taxation as taxation of whole estate and inheritance taxation as taxation of the share of each heir, and the complication of these taxes with double progression and annual rate changing. The tax base, rates and tax deductions for aliens, methods of tax calculation are described. The ways to reduce and avoid taxation including death losses insurance, appointment of so called nominal holder and full use of tax deductions are analyzed, as well as the policy of the state to prevent them. The difference in taxation of US residents and aliens whose rights are significantly infringed is described.

Keywords: estate tax, inheritance tax, tax rates, tax deductions, tax planning, rights of aliens.

DOI: 10.12737/18187

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VALUE OF PROJECT BEPS AND EU LAW: LIMITATION OF THE USE OF TAX TREATY BENEFITS  Pdf 16

O. A. LEONOVA

post-graduate student of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation
57, Dubininskaya st., Moscow, Russia, 115054
E-mail: olympiada@mail.ru

This article is devoted to legal relations arising from application of international tax treaties. The subject matter of this article is the norms of international and European Law and also soft law designed for preventing treaty abuse. The author considers Article 22 of the Model US Tax Convention. According to the current recommendations of OECD in the framework of BEPS Project regarding preventing the granting of treaty benefits in inappropriate circumstances, this provision should be considered as legal base for including in the Model OECD Tax Convention. The author focuses on the issue whether the provision regarding limitation of treaty benefits is consistent with EU law and the established practice of the European Court of Justice. The methodological foundation of this article includes general and specific approaches of scientific knowledge. During preparation of this article the author used methods of legal, structural, comparative and linguistic analysis. Moreover, the author applied the technical method for analysis of texts and wordings of model international conventions and international tax treaties. The author analyzed the provision of the Model US Convention regarding limitation of treaty benefits, because it is expected to be included in all international treaties, including in treaties of EU member states in the framework of BEPS Project, elaborated by the OECD.

Keywords: OECD, EU, International Tax Treaty, limitation of benefits, Model Convention, Base erosion, qualified person, Contracting State, resident, treaty shopping, principal purpose test rule.

DOI: 10.12737/18188

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INSTITUTIONAL FRAMEWORK OF INTEGRATION ASSOCIATIONS FUNCTIONING IN EURASIA  Pdf 16

V. Yu. LUKYANOVA, I. V. PLYUGINA

V. Yu. LUKYANOVA, 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: vlada.lukianova@rambler.ru

I. V. PLYUGINA, acting leading research fellow 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: inna_wp@mail.ru

The article deals with the institutional organization of integration associations of the Eurasian space. On the example of the Eurasian Economic Union and the Union State the main problems arising in connection with the activities of integration associations administration is shown, the gaps that hinder the implementation of the taken decisions are highlighted. The effectiveness of the operation of any integration association, including the integration associations of the Eurasian region, depends not only on external factors, but also on the quality of the research of institutional mechanisms. Specific types of bodies that construct the institutional system of integration associations, their competence, order of formation and functioning will depend on the chosen form of integration, its actually achieved level, the degree of political influence and economic development of States parties. The increasing complexity of integration relations from the move from one stage to another, expanding the scope of integration interaction causes the need to improve the institutional framework, expand the competence of the individual organs, optimization mechanism for implementing the adopted decisions of bodies of integration associations, increase of the quantity of these bodies, the number and diversity of acts adopted by them. In addition, the transition to more complex forms of integration associated with the transfer to the supranational level of regulation specific range of issues which are the subject of exclusive jurisdiction of the bodies of integration associations.

Keywords: integration, the Eurasian Economic Union, the Customs Union, the Union State, the Eurasian Economic Commission, integration associations, institutional mechanisms, controls.

DOI: 10.12737/18189

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RUSSIA IN CENTRAL ASIA: LEGAL ISSUES OF CURRENT INTEGRATION  Pdf 16

N. M. BEVELIKOVA, A. V. PAVLUSHKIN

N. M. BEVELIKOVA, head 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 street, Moscow, Russia, 117218
E-mail: foreign5@izak.ru

A. V. PAVLUSHKIN, deputy head of the legal analysis and forecasting department Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya street, Moscow, Russia, 117218
E-mail: pavlex@lenta.ru

Presented article is devoted to legal analysis of the development of integration processes in Central Asia, which are the most important at the present time due to the changing political orientation of Russia. Legal analysis of the formation of relations between Russia and the Central Asian states and China in the framework of integration associations in the light of the SCO summit in the city of Ufa is conducted. The authors consider the SCO as a multi-interactive mechanism to effectively implement a number coinciding with the interests of the Russian geo-strategic tasks of SCO member states in the framework of expanding the Central Asian geopolitical space. Since the SCO member states are included in the project of the Economic Belt of the Silk Road, the article analyzes its documents describing the factors of success of promising Russian integration strategy as well as future challenges of development facing the Russian Federation.

Keywords: Shanghai Cooperation Organization, Economic Belt of the Silk Road China, Central Asia, integration association, Russia’s strategy.

DOI: 10.12737/18190

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AMERICAN INTERNATIONAL LAW DOCTRINE: REVIVAL OF “JUST WAR” CONCEPT  Pdf 16

K. L. SAZONOVA

associate professor of the chair of state legal disciplines of the Institute of Public Administration and Management of the Russian Presidential Academy of National Economy and Public Administration, candidate of legal sciences, candidate of political sciences
84, Prospect Vernadskogo, Moscow, Russia, 119606
E-mail: kira_sazonova@mail.ru

This article discusses the views and opinions of American experts in the field of international law and international relations, devoted to a very ambiguous concept of “just war”. However, this concept raises many questions about its compliance with the contemporary international law, particularly in the context of the principle of non-use of force or a threat of force, which is fixed in the UN Charter. The subject of research is a range of works of American international lawyers on the substantive content and the legal aspects of “just war” concept. As research methods were used common scientific methods, such as induction, generalization, deduction, as well as comparative legal, historical, structural-functional methods. Reference to the concept of “just war” is often use in the speeches of American politicians, so it has a significant impact on the U.S. foreign strategy. Thus, the legal assessment of the “just war” concept is necessary in the context of the current international legal framework. In the Russian doctrine of international law the concept has practically no coverage, so the article is intended to fill this gap.

Keywords: сomparative law, “just war”, international law, American doctrine, concept, use of force, terrorism, moral, selfdefense, the USA.

DOI: 10.12737/18192

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ISSUES OF INTERACTION BETWEEN NATIONAL AUTHORITIES AND AUTHORITIES OF INTEGRATION ASSOCIATION  Pdf 16

S. A. GRACHEVA

senior research fellow of the legislation theory 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: sinobi_unit@mail.ru

The article analyzes the problems of strengthening and deepening of interstate cooperation and collaboration, which is expressed in the development of integration associations in various regions of the world, evaluates approaches to the models of management associations (often considered as a separate level of public authority) and their interaction with national authorities. This article reviews current issues of relationship and collaboration of national and intergovernmental bodies considering to various types of integration associations, examines the grounds and forms of their interaction, both in cooperation and in connection with the conflict situations. Also the article is dedicated to the linkages between certain organs within the associations, with particular attention paid to the problems of interaction of the supreme national and inter-state courts. Moreover there are an assessment of trends in the development of integration associations and approaches to their functioning taking into account modern realities. Problems of interaction between national authorities and authorities of integration association in different forms are often studied to bringing the experience of the specific integration associations, differing by scale spread, solidarity linkages within the union, sustainable development, etc. In particular, the article analyzes the example of the functioning of the European Union, which is the most successful supra-national integration union type, which allows to show hierarchical relationships subordinate authorities within the integration association. The author also refers to the experience of the Eurasian Economic Union, which illustrates control and coordination of management type within the union.

Keywords: integration associations, interaction of authorities, supranational and intergovernmental bodies, the European Union, the Eurasian Economic Union, the Andean Community.

DOI: 10.12737/18193

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COMPARATIVE LEGAL ANALYSIS IN THE FIELD OF ENVIRONMENTAL PROTECTION POWERS OF SELF-GOVERNMENT BODIES IN FOREIGN COUNTRIES  Pdf 16

D. I. SAFAROV, Z. R. RUZIEV

D. I. SAFAROV, chief research fellow of the Institute for Monitoring of Current Legislation under the President of the Republic of Uzbekistan, сandidate of legal sciences, associate professor
6, Mustaqillik maydoni, Tashkent, Uzbekistan, 100078
E-mail: si_jaxongir@mail.ru,

Z. R. RUZIEV, chief research fellow of the Institute for Monitoring of Current Legislation under the President of the Republic of Uzbekistan, сandidate of legal sciences, associate professor
6, Mustaqillik maydoni, Tashkent, Uzbekistan, 100078
E-mail: zr_8888@mail.ru

On the basis of the provisions of environmental legislation, as well as laws on local self-government of the United States, the European Union and the Commonwealth of Independent States the comparative legal analysis of the self-government authority in the field of environmental protection is given. The specifics of powers of citizens’ self-government institute (mahalla) in the Republic of Uzbekistan in the sphere of environmental protection are determined. The classification of the environmental authorities of self-government bodies in such four key areas as organizing and conducting of environmental education and conservation work on the ground, implementation of public environmental control, the realization of the economic mechanism of nature protection and management in the field of ecology is offered. The conclusion about the possibility of using of the rules laid down in the legislation of studied states in the domestic legislation is made. The priority areas for further extension of powers of environmental government agencies are proposed. The prospects for improving the legal rules for the participation of self-government bodies in the field of nature protection, the expansion of the powers of environmental authorities of the self-government bodies in the field of environmental rights of citizens, as well as the strengthening of mechanisms to ensure environmental information by the self-government bodies are studied.

Keywords: comparative law, environmental legislation, local self-government, self-government bodies, “Mahalla”, the municipality, community, environment, public environmental monitoring, environmental authorities.

DOI: 10.12737/18194

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FEATURES OF REALIZATION OF CITIZENS’ RIGHTS TO A HEALTHY ENVIRONMENT IN THE RUSSIAN FEDERATION AND INDIA: A COMPARATIVE LEGAL ANALYSIS  Pdf 16

E. A. BELOKRYLOVA, E. M. KOLOGERMANSKAYA

E. A. BELOKRYLOVA, head of the chair of natural resources, agricultural and ecological law of the Institute of Law, Social Management and Security of the Udmurt State University, candidate of legal sciences, associate professor
1, Universitetskaya st., Izhevsk, Russia, 426034
E-mail: belokrylova_katy@mail.ru

E. M. KOLOGERMANSKAYA, assistant of the chair of natural resources, agricultural and ecological law of the Institute of Law, Social Management and Security of the Udmurt State University
1, Universitetskaya st., Izhevsk, Russia, 426034
E-mail: ekaterina.kologermanskaya@gmail.com

The article describes the role and importance of comparative legal research methodology on the example of the institute of the right to a healthy environment and ways to protect it in the Russian Federation and India. The works of leading legal scholars who have made a significant contribution to the development of modern comparative law are analyzes. The provisions of the Constitution of the Russian Federation and India, enshrining the right to a healthy environment are studied by the authors. The status of the public authorities involved in the process of protection of the right to a healthy environment in Russia and India is analyzed. The special role of the judiciary in the legislative branch of government, as well as the value of judgments in the environmental legislation of India is emphasized. Common and distinctive features of legal principles aimed at protecting the environment in the Russian Federation and India are allocated. The authors conclude that, with respect to the object of study, the use of comparative legal methodology makes it possible to identify the characteristics and the basic directions of the development of the right to a healthy environment in Russia and India, in addition, the possibility of a holistic disclose of major institutions in various aspects and application of experience in different areas of the right to a healthy environment for its further improvement is appeared.

Keywords: comparative legal methodology, comparative legal method, comparative, environmental law of the Russian Federation, environmental law of India, the right to a healthy environment, the protection of environmental rights of citizens, the Constitutional Court, Federal Law “On Environmental Protection”, Ministry of Natural Resources and Ecology of the Russian Federation.

DOI: 10.12737/18195

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BURNING ISSUES OF INTEGRATION LAW AND CONSTITUTIONAL LAW OF MEMBER-STATES  Pdf 16

K. L. CHAYKA

judge of the Court of the Eurasian Economic Union, candidate of legal sciences, honored lawyer of the Russian Federation
5, Kirova st., Minsk, Belarus, 220006
E-mail: chayka@courteurasian.org

The question about primacy of supranational rules over domestic law, about correlation of competences of integration court and of high national courts arises at certain stage of the development of integration law. This question is vital both for the Eurasian Economic Union. At the same time spheres that require complementary activity of international and national courts may be revealing. In the law of the Eurasian Economic Union these include settlements of disputes because of different parts of a rule are a part of acts of different levels: supranational and national. This involves diverse sanctions for breach of Union law in member states, distinct tariff exemptions. This dualism of legal regulation leads to absence of legal certainty and stability, directly infringe human and civil rights and liberties. This article examines features of law of the Eurasian Economic Union at the present stage, solutions of specified problems.

Keywords: Eurasian Economic Union, Custom Union, Court of the Eurasian Economic Union, Constitutional Court of the Russian Federation, Constitutional Council of the Republic of Kazakhstan, dualism of legal regulation.

DOI: 10.12737/18196

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CONSTITUTIONAL REFORMS AT THE PRESENT STAGE OF LEGAL DEVELOPMENT  Pdf 16

A. A. KLISHAS

chairman of the Committee on Constitutional Legislation and State-building of the Council of the Federation, doctor of legal sciences, professor
26, Bolshaya Dmitrovka st., Moscow, Russia, 103426
E-mail: AAKlishas@senat.gov.ru

The article reveals the essence and importance of constitutional reforms at the present stage of legal development of Russia. According to the author, the success of constitutional reform depends on the choice of adequate implementation mechanisms, taking into account possible legal risks. In this regard, the article examines the main mechanisms and directions of constitutional-legal development and reformation. Among them the author emphasizes the active use of the interpretation of the Constitution that allows to adequately respond to public demands for constitutional reform, to further improve domestic remedies, and the establishment of effective cooperation mechanisms for the use of domestic remedies of protection of the rights and freedoms of man and subsidiary institutions for the protection of rights and freedoms. Accordingly, the important areas of constitutional and legal development are the implementation of judgments of international courts on the territory of the Russian Federation, primarily the European Court of Human Rights. The author substantiates the idea that the purpose of constitutional reforms is to increase the security of fundamental rights.

Keywords: constitution, constitutional reform, human rights, European Court of Human Rights, constitutional interpretation, constitutional amendments.

DOI: 10.12737/18197

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GLOBALIZATION AND THE BASIC CHANGES OF MODERN CONSTITUTIONS  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

On the basis of a positive and contrasting comparison, as well as content analysis of new constitutions and fundamental amendments to them the changes in their content, which occur as a result of the modernization, integration and globalization are considered. Modernization and economic (in fact, the economic and political) integration of states leads to the creation of a new form of supranational public legal formation with a different quality of public authorities and supranational law (the most prominent example is the European Union), as globalization leads to the spread of the general regulations of constitutional development in new countries and peoples. The processes of internationalization of the constitutions, the new phenomenon of constitutional convergence, harmonization and antagonisms on a world scale are appeared. Constitutional globalization is seen as the most general direction of development of the constitutional law of the world countries. Modernization and economic integration of states often involves the adoption of the principal amendments to the Constitution, “the Basic Law”, or even the whole constitution in the Muslim fundamentalism countries, where such a document as the Constitution, previously was considered unacceptable and was replaced by the Quran and Sunnah. In the countries of totalitarian socialism the processes of convergence has occurred (on the aspects of regulation of economic relations), but there is no harmonization, there are antagonisms with the constitutional decision of the basic questions of social and political system. In the states - members of the European Union the traditional position of the State Sovereignty is revised, new views on the national and supranational authorities are appeared. The mutual influence of international, supranational (so far only in the EU) and constitutional law takes place.

Keywords: constitutional globalization, the main trends of the basic amendment to the Constitution.

DOI: 10.12737/18200

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CONSTITUTIONAL LEGAL REFORMS: OBJECTIVE AND SUBJECTIVE FACTORS  Pdf 16

S. A. AVAKYAN

head of the chair of constitutional and municipal law of law faculty of Lomonosov Moscow State University, doctor of legal sciences, professor, honored scientist of the Russian Federation
1, Leninskie gory, Moscow, Russia, 119991
E-mail: avakian@law.msu.ru

This article analyzes objective and subjective factors, which influence on appearance of constitutions and on current constitutional legal reforms. The author makes a conclusion that such development often features a significant role in ensuring action of constitutional norms of processes in sub-constitutional regulation. Key factors in appearance of new constitutions and constitutional reforms overall are economic and especially political crisis. Objective factors of importance of constitutional legal reforms may totally depend on subjective circumstances. The author also discusses the idea of “live constitution”, which becomes more actual in Russian Federation together with the role of Russian Constitutional Court in ensuring this idea. The author makes a general conclusion: constitutional reforms are not being in possession of objective approaches, based on necessary development of constitutional aspects of economy, social relationships and political organization of state, but depend heavily from subjective reluctance to implement constitutional reforms.

Keywords: constitution, constitutional reform, constitutional legal reform, objective and subjective factors, constitutional regulation.

DOI: 10.12737/18201

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CONSTITUTIONAL REFORMS OF THE XXI CENTURY: NEW HORIZONS  Pdf 16

S. B. BALKHAEVA, F. A. LESHCHENKOV, O. I. SAKAEVA

S. B. BALKHAEVA, senior research fellow of the department of international 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: mp@izak.ru

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: foreign1@izak.ru

O. I. SAKAEVA, research fellow of the department of international 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: mp@izak.ru

On 1-2 of December 2015 the Institute of Legislation and Comparative Law jointly with the European Commission for Democracy through Law (Venice Commission of Council of Europe) held V International Congress of Comparative Law “Constitutional reforms in the XXI century: new horizons”. The task of international congress was to summarize existing experience of constitutional changes in the modern world, to reveal basic trends of current constitutional reforms, and to develop ways of their further progress. The Congress featured plenary meeting as well as sections (“Main trends of constitutional development in the modern world: general and special; Constitutional reforms: vectors of democratic development”; “Constitutional reforms: changes in the private sphere”) and round tables (“The role of the Council of Europe in constitutional reforms”; “Constitutional reforms in Asian-Pacific region: comparative legal analysis”; “Constitutional models in Latin America”; “Social and labor rights of citizens as a factor of constitutional stability and economic growth”. The review of scientific work of the V International Congress of Comparative Law is followed by presentation of recommendations, adopted as a result of its work.

Keywords: comparative law, constitutional reforms, Council of Europe, Venice Commission, International Congress of comparative law.

DOI: 10.12737/18202

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ANALYTICAL REVIEW OF THE WORK OF THE 104th 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, leading 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 review of the activities of the European Commission for Democracy through Law (Venice Commission) during the 104th plenary session held in Venice in October 2015, where was considered a number of opinions regarding the legislation of Ukraine, Armenia, Bulgaria, Montenegro, Georgia and other countries. Particular attention of the members of the Venice Commission has been given to constitutional reforms in Armenia and Ukraine.

Keywords: European Commission for Democracy through Law, Venice Commission, Council of Europe, 104th plenary session, human rights, rule of law, judiciary, constitutional justice, constitutional reform, democratic principles and European standards of democracy, report.

DOI: 10.12737/18203

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REVIEW OF THE MONOGRAPH “RUSSIAN WATER LAW: DEBATABLE PROBLEMS AND THEIR SOLUTIONS”. D. O. SIVAKOV. MOSCOW, 2015. 548 p.  Pdf 16

V. R. AVKHADEEV

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

The monograph is devoted to the most actual problems of modern water law. D. O. Sivakov, guided by a very significant scientific and practical materials, analyzed the controversial issues of legal regulation of water relations, which until recent time have not been studied sufficiently. The author made a comparative analysis of the Russian and foreign experience of legal regulation of water relations. In the presented monograph were found existing in the current trend of development of water legislation. The author also analyzed the legal aspects of water management. Consistently analyzed the legal regime of use and protection of water bodies. Separately analyzed the characteristics of the different legal entities of water relations. In addition, D. O. Sivakov studied right of property and other rights to water bodies. Scientific research conducted by the author, performed at a high theoretical and practical level, and accordingly, can be implemented both in sphere of scientific research and in practice.

Keywords: water law, water relationship, water management, water bodies, right to property.

DOI: 10.12737/18204

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