Contents # 2/2016

STRUCTURAL ANALYSIS OF LEGAL CULTURE  Pdf 16

A. S. AVTONOMOV

head of the department of foreign constitutional, administrative, criminal law and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: a.s.avtonomov@yandex.ru

The article is devoted to theoretical issues of using one of the research methods — structural analysis — for legal culture studying. Legal culture is a kind of a layer in social environment that represents one of the regulatory types. Law in its functioning is closely connected with the state, but rules of that law are rooted in societal life, resting upon the ideas of fairness which are dominant in the society under specific historical conditions. Legal culture manifests itself in the samples (models) of behavior and values. Legal culture combines the rational and the irrational. Legal culture is formed and developed under concrete historical conditions and, on the one hand, relies on law, being one of the legal phenomena (hence, the existence of law is the indispensable prerequisite for the existence of legal culture), and on the other hand, it is a factor of ensuring law existence and enforcement, because any rules that do not meet the dominant society’s values and predominant behavior samples (models), would be invalid: either they will be ignored and not applied or attempts will be made to adapt them to the values and behavior samples (models) by means of interpretation, enforcement practices, etc. (but as a result of that, the content of the rules will be different), or such rules will be changed or cancelled.

Keywords: law, legal culture, standardization, structure, fairness.

DOI: 10.12737/19194

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MONITORING OF LEGISLATION AND LAW ENFORCEMENT IN RULE MAKING: EXPERIENCE OF THE REPUBLIC OF BELARUS  Pdf 16

N. A. POLYASHCHUK

chief specialist of the Scientific and Practical Center on Problems of Strengthening Legality and Public Order under General Prosecutor Office of the Republic of Belarus
76, Zakharov st., Minsk, the Republic of Belarus, 220088
E-mail: ponataly1@yandex.ru

The article provides general characteristics of legal acts regulating the rule making process in the Republic of Belarus and reveals drawbacks that are subject to rectification as part of further improvement of rule-making. The author justifies the position that monitoring of legislation and law enforcement is an integral component of law making that permits to assess efficiency of legal and regulatory framework and optimize both rule making and law enforcement activity. Nevertheless, among the sources regulating certain stages of rule-making process in the Republic of Belarus, there are no regulatory legal acts that would envisage the necessity to carry out legal monitoring (monitoring of legislation and law enforcement) and set forth its procedure. At the same time the Republic of Belarus has enough potential to form an appropriate system to monitor legislation and law enforcement and enshrine it at the regulatory level. Taking these circumstances into account, the author outlines proposals relating to conceptual content (meaning) of regulatory legal acts on the basis of which the author intends to introduce the institute of legal monitoring into the practice of rule-making authorities (executive officers) in the Republic of Belarus.

Keywords: law making, rule-making process, rule-making activity, law enforcement, regulatory legal act, legal analysis, criminological analysis, legal monitoring.

DOI: 10.12737/19195

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THE ROLE OF PHARMACEUTICAL REGULATION IN IMPLEMENTATION OF THE HUMAN RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH  Pdf 16

R. U. KHABRIEV, A. Kh. ABASHIDZE, V. S. MALICHENKO

R. U. KHABRIEV, director of the Semashko National Research Institute of Public Health, academician of the Russian Academy of Sciences, doctor of medical sciences, doctor of pharmaceutical sciences, professor
12/1, Vorontsovo Pole st., Moscow, Russia, 105064
E-mail: institute@niph.ru

A. Kh. ABASHIDZE, head of the chair of international law of the Peoples’ Friendship University of Russia, member of the United Nations Committee on Economic, Social and Cultural Rights, doctor of legal sciences, professor
6, Miklukho-Maklaya st., Moscow, Russia, 117198
E-mail: aslan.abashidze@gmail.com

V. S. MALICHENKO, chief of the comparative law studies division of the Institute of Innovative Educational Projects in Healthcare of the Peoples’ Friendship University of Russia, candidate of legal sciences
43, Shosseynaya st., Moscow, Russia, 109388
E-mail: vlad.malichenko@gmail.com

Socio-demographic processes, increased economic instability, epidemiological transitions and disproportionate access to health care present serious challenges to the health care systems of major global powers, especially to the medication supply. In many countries, inadequate regulation of the health sector, in particular in the pharmaceutical area, leads to serious human rights’ violations. At the same time ensuring the safety of drugs is the basis for the full exercise of the human right to health, which is impossible to achieve without effective international cooperation. Enjoyment of the right to the highest attainable standard of health, enshrined in the main international human rights documents, in particular by providing access to medicines is only possible on the basis of an effective and integrated regulation system and in compliance with recognized international standards, as well as national and regional priorities.

Keywords: harmonisation, international law, human security, medicines circulation, right to health.

DOI: 10.12737/19196

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CONSTITUTIONAL LEGAL STATUS OF PRESIDENTS OF THE REPUBLIC OF UZBEKISTAN AND THE USA (COMPARATIVE LAW ANALYSIS)  Pdf 16

M. M. MIRAKULOV

head of the department of the Institute for Monitoring of Current Legislation under the President of the Republic of Uzbekistan, сandidate of legal sciences
6, Mustaqillik maydoni, Tashkent, Uzbekistan, 100078
E-mail: prezmir@yandex.ru

The article provides comparative law analysis of constitutional legal statuses of Presidents of the Republic of Uzbekistan and the USA. The analysis is conducted per respective provisions of the constitutions of the countries in question and per such criteria as form of government, form of rule, presidential elections and powers, qualifications, established for candidates for presidency. Thus, special attention is paid to various peculiarities of the legal status of the institute of presidency of the countries in question, in particular, regarding such issues as participation in the formation of the upper chamber of parliament, ministries and other State administrative bodies, interaction with the parliament and the judicial branch, powers in defense and security sectors, international relations, law making etc. Thus, the author identifies such distinctive features of the institute of presidency in Uzbekistan, as the existence of the post of Prime Minister and responsibility of the Government before the parliament and President; that the President possesses arbitration and integrative, coordinating and guaranteeing functions; the right to legislative initiative, dissolution of Parliament, convocation of the referendum, appointing and dismissing heads of local executive authorities; the status of President allows holding office of a Senate member during good behavior upon the expiry of the term. On the basis of an astute comparative analysis the author also reveals a number of similar characteristics in the institutes of presidency in the USA and Uzbekistan, such as age qualifications, the right to the address to parliament, participation of the Senate in appointing, approving and electing functionaries, presented by President, the veto power, as well as the status of the Commander-in-Chief.

Keywords: comparative analysis, constitutional and legal status, President, form of government, form of rule, elections, Presidential powers, parliament, presidential republic, parliamentary republic, the system of checks and balances, head of the state, Senate.

DOI: 10.12737/19197

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THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD AND PROTECTION OF CHILDREN’S RIGHTS AT CONSTITUTIONAL LEVEL  Pdf 16

M. L. SHELYUTTO

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

The adoption of the United Nations Convention on the Rights of the Child in 1989 meant the international recognition of children as autonomous right-holders. The Convention includes practically all traditional human rights: civil, political, economic, social and cultural rights, to which every child is entitled. The Report on the Protection of Children’s Rights: International Standards and Domestic Constitutions adopted by the Venice Commission in 2014 shows that national constitutions of some Council of Europe Member States have implemented the provisions of the Convention in different manner after its adoption. Some constitutions (the Russian Constitution is among them, too) reflect the traditional paternalistic approach (according to which children need protection) but not the rights-based approach. The inclusion in the Constitution of guarantees of rights for everyone may be insufficient to ensure respect for these rights for every child. The recommendations of the UN Committee on the Rights of the Child and the Venice Commission to include in national constitutions the key message that children are holders of human rights and the general principals of the Convention are topical for the Russian Federation.

Keywords: international standards of children’s rights protection, constitutional level of children’s rights protection, domestic violence.

DOI: 10.12737/19198

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COMPARATIVE ANALYSIS OF NONVIOLENT SEXUAL ABUSE OF MINORS UNDER THE CRIMINAL LEGISLATION OF RUSSIA AND LATVIA  Pdf 16

I. V. PANTYUKHINA, L. Yu. LARINA

I. V. PANTYUKHINA, head of the chair of criminal law and procedure of the Ryazan State University named for S. Esenin, candidate of legal sciences, associate professor
46, Svobody st., Ryazan, Russia, 390000
E-mail: i.pantyuhina@rsu.edu.ru

L. Yu. LARINA, associate professor of the chair of civil law and procedure of the Ryazan State University named for S. Esenin, candidate of legal sciences
46, Svobody st., Ryazan, Russia, 390000
E-mail: larina1708@yandex.ru

The article conducts comparative research of criminal laws of Latvia and Russia regarding protection of sexual inviolability of minors. It reveals strengths and weaknesses of laws in both countries. The comparative analysis shows that the Latvian legislation contrasts favorably in regulation of all forms of nonviolent sexual contacts by a full age person with a person under the age of sixteen years as part of single corpus delicti; in legal interpretation of sexual abuse, in establishment whether it is violent or non violent, specification of their modus operandi. The Criminal Code of the Russian Federation better regulates a victim’s age in nonviolent sexual abuse of minors (12—16 years); the Code recognizes persons under the age of twelve years helpless; it differentiates criminal liability within the qualified offence. In Latvia the system of punishments for these crimes is more logical, whereas in Russia they are excessively differentiated that leads to the absence of demand for the upper limits of sanctions. The authors pay special attention to the rule of the Latvian Criminal law providing responsibility for inducement to sexual activities. There is no similar structure in the Criminal Code of the Russian Federation therefore such offences often remain nonpunishable. In conclusion the authors note that mutual use of the revealed positive moments of the studied norms can raise the level and quality of protection of sexual inviolability of younger generation in both countries.

Keywords: sex abuse, non-violent crime, minors, age limit, indecent assault, involvement in sexual relations, punishment, imprisonment.

DOI: 10.12737/19199

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HISTORICAL DEVELOPMENT STAGES OF CRIMINAL PROCEDURE IN ANCIENT ROME  Pdf 16

N. I. KHAYRIEV

senior research fellow of the Tashkent State Law University, candidate of legal sciences
35, Sayilgokh st., Tashkent, Uzbekistan, 100047
E-mail: nodirx100@mail.ru

This article studies historical-legal aspects of such issues as organization and development of criminal procedure in Ancient Rome, types of criminal procedure in this state, peculiarities of criminal procedure organization on the basis of the Laws of the twelve tables, legal status of officials, reviewing cases, as well as issues of guaranteeing fairness of the courts, specific to the ancient roman legal and institutional framework. Based on the historical development of the state and law, the author presents a different classification of the development stages of Ancient Rome and history of the Roman (Civil) Law. The author pays special attention to studying procedural law aspects, in particular, to the issues of particular characteristics of criminal procedure and judicial examination, evidence law, procedure of instituting court proceedings, hearings of cases in courts and adoption of relevant court decisions. The author conducts thorough analysis of the main stages of a criminal process, which, as the author assumes, consist of two parts — bringing of a suit, evaluation of evidence and documents, checking the accuser’s requirements, as well as reviewing claims under the lawsuit and submitted evidence, judicial examination.

Keywords: Ancient Rome, Laws of the twelve tables, cranial procedure, judicial examination, criminal process stages, private charge, evidence, claims under the lawsuit, praetorian, Magister, arbitrator, Consul, panel of judges, permanent commissions, centuries’ commission, legal judgment.

DOI: 10.12737/19200

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ON ADVANTAGES AND DRAWBACKS OF LEGAL ENGINEERING OF CPC OF RUSSIA AND SWITZERLAND  Pdf 16

A. A. TREFILOV

senior 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: trefilovaa1989@gmail.com

The author demonstrates legal engineering of the Criminal Procedural Code of Switzerland and Russia, expresses his own point of view about advantages and disadvantages of these Procedural Codes, and makes recommendations how to improve the legal engineering of the domestic CPC. The article formulates proposals to remedy these disadvantages.

Keywords: Criminal Procedural Code, legal engineering, institutions of Criminal Procedural law.

DOI: 10.12737/19201

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MANDATORY DEATH PENALTY IN THE GLOBALIZED WORLD  Pdf 16

I. I. NAGORNAYA

senior lecturer of the criminal law and criminalistics chair of the National Research University “Higher School of Economics”, candidate of legal sciences
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: irnag@yandex.ru

The subject of this research is the death penalty as a mandatory punishment for the most serious crimes in the United States, Asia and the Caribbean and corresponding constitutional problems. The author analyses foreign courts’ judgments and foreign researchers’ points of view. The author considers the influence of the jurisprudence of the US Supreme Court on the countries with similar legal systems, the importance of legal thought in other countries for further development of law-enforcement practice in a particular region and the globalized world. The author analyzes inconsistent position of Singapore, as well as the indecisiveness of the government of Malaysia, because until recently these two countries were fervent supporters of the mandatory death penalty in the Commonwealth. The author supports the global trend towards the abolition of the mandatory death penalty and the fact that the “Asian values” are not an insurmountable barrier to achieve this goal.

Keywords: death penalty, mandatory death penalty, common law, US Supreme Court, Asia, the Caribbean, globalization.

DOI: 10.12737/19202

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MULTILINGUAL TAX TREATIES AND PECULIARITIES OF THEIR INTERPRETATION  Pdf 16

I. A. KHAVANOVA

senior research fellow of the financial, tax and budget 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: fin@izak.ru

In this article dedicated to multilingual tax treaties special attention is drawn to the treaties concluded by the Russian Federation. The author points out that Russia has no treaties on the avoidance of double taxation and the prevention of tax evasion concluded in one language. The author examines the rules of construing and application of authentic texts of agreements and illustrates them by the Russian case law. Much attention in the article is paid to the analysis of the treaty construing rules applicable to the agreements whose text is authenticated in two or more languages. The aim of this article is to examine principles of multilingual tax treaties as well as widespread problems which arise in practice and to suggest possible solutions. The author reveals particular features of tax treaties which should be taken into consideration while construing such agreements. Special attention is paid to the discrepancy between texts in different languages.

Keywords: tax treaties, avoidance of double taxation, construing, treaties whose texts are authenticated in two or more languages, means of interpretation.

DOI: 10.12737/19203

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LEGAL PECULIARITIES OF FINANCING UNDER MURABAHA CONTRACT IN ACCORDANCE WITH THE ISLAMIC LAW  Pdf 16

I. E. MIKHEEVA

deputy head of the chair of banking law of the Kutafin Moscow State Law University, candidate of legal sciences
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: Ya.miheeva@yandex.ru

Substantial differences in the legal regulation of the Russian and Islamic banking prevent to attract Islamic Finances to Russia, in particular, such as a ban on trading activities by credit organizations. Murabaha is one of the main instruments of Islamic Finance. In accordance with Sharia standard No. 8 the contract of Murabaha is an agreement whereby the Bank undertakes to transfer to the customer the property previously acquired by the Bank as its property at the customer’s request, and the customer undertakes to accept and pay for the goods with a predetermined extra charges to the original price. By its legal nature the Murabaha contract is similar to a contract of sale of goods on credit envisaged by the Russian civil legislation. However, the Murabaha contract has its own specifics: it is prohibited to collect interest, commissions and forfeit from a client; conclusion of the Murabaha contract is preceded by a request from the customer to the Bank on the acquisition of goods and the promise to buy them, and the purchase by the Bank of the goods in its ownership; risk sharing between the Bank and the customer; ban to change prices. There is an obstacle for Russian credit organizations to use the Murabaha contract: the taxation procedure for purchase and sale transactions, which leads to double taxation of the goods that is the subject matter of Murabaha.

Keywords: Islamic banking, Murabaha, credit sales, financing, ban on the receipt of interest, risk sharing.

DOI: 10.12737/19204

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ON DEFINITION OF A DEPENDENT AGENT AS A TYPE OF PERMANENT ESTABLISHMENT: RUSSIAN AND INTERNATIONAL LEGAL REGULATION  Pdf 16

Ya. S. MAKAROVA

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: yana_job5555@mail.ru

This paper analyzes the definition and characteristics of a dependent agent as a subject of the international tax law and a special type of permanent establishment. The term “dependent agent” is not sufficiently studied either in Russia or globally. Over the last few years the global community has been concerned about capital outflows from developed economies through tax optimization structures, including a scheme aimed at artificial avoidance of permanent establishment. Based on international law and following the release of the OECD recommendations (BEPS project), the author of the article provides the analysis of the definition and main characteristics of a dependent agent, which may be incorporated into the Russian tax legislation. Development of certain criteria necessary for setting up a permanent establishment in the form of a dependent agent may lead to the establishment of clear rules governing this tax category. In turn, this may help to reduce practices of tax avoidance by foreign organizations who may try to artificially avoid creating permanent establishment in another tax jurisdiction.

Keywords: tax, profit, subject of the tax law, permanent establishment, dependent agent, independent agent, foreign organizations, place of business, OECD.

DOI: 10.12737/19205

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ISSUES OF INTERNATIONAL-LEGAL AND NATIONAL-LEGAL REGULATION IN THE ARCTIC (COMPARATIVE LAW ANALYSIS)  Pdf 16

R. A. KURBANOV

head of the centre of the legal problems of the integration and international cooperation at the Institute of Legislation and Comparative Law under the Government of the Russian Federation, head of the department for civil law and procedure of the Plekhanov Russian University of Economics, doctor of legal sciences, professor, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: mos-ssp@mail.ru

It is not only the eight Arctic countries who have been recently showing their interest in the Arctic areas. Other countries in Europe, Asia, and America claim their presence in the Arctic, even those who are geographically located in a different hemisphere and could hardly be called circumpolar. For example, Germany, Japan, India, South Korea, China, Brazil and about 20 other countries have declared their determination to develop fields in the Arctic shelf areas. Moreover, China, India, Singapore and some other countries have already been developing strategies to use the Northern Sea Route in the Arctic. It is necessary to note that at the constitutional level all Arctic countries regulate issues related to the Arctic in different ways (both directly and indirectly). In particular, most of the constitutions contain provisions on the rights of indigenous peoples which are equally applicable to the Arctic region, as the number of indigenous peoples in the Arctic amounts to about 400 000 people. Besides, at the national level all Arctic countries have basic programs like “Arctic Documents” or a special “Arctic legislation” (except for Finland and Sweden). In this study we analyze the main basic program documents and legal regulations governing this sector in the Arctic countries, define optimal balance between the national and international legal regulation in determining the legal regime in the Arctic region.

Keywords: the Arctic, legislation, Arctic states, regional organizations, Arctic Council, Barents/Euro-Arctic Council, Kirkenes Declaration, indigenous peoples, environment, constitution.

DOI: 10.12737/19206

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SHARE IN LLP CHARTER CAPITAL AS PROPERTY: SOME ISSUES OF THEORY AND PRACTICE RELATED TO THE LEGISLATION OF THE REPUBLIC OF KAZAKHSTAN  Pdf 16

S. V. SKRYABIN

leading research fellow of the Research Institute of Private Law of the Caspian University, candidate of legal sciences, associate professor
521, Seyfullin avenue, Almaty, Kazakhstan, 050000
E-mail: sergei_skryabin@mail.ru

The article investigates the issue of legal regime of a share in the charter capital of limited liability partnerships as a special kind of property. The author considers justified extending to this type of property of the rules of civil legislation on the law of obligations with certain peculiarities of the legal regime. These include peculiarities of definitions of authorized persons and parties liable; extending to their turnover of the rules on substitution of parties in the obligation; establishing the price of the shares in charter capital through a correlation with the property of the company itself, fixing of their price at a certain moment, preceding the transfer; changing of current rules on the charge of the share. The right to the share in the charter capital is determined as a prerequisite of enjoyment of rights and obligations of a participant, as well as the cost of the property belonging to the partnership.

Keywords: share in the charter capital of limited liability partnerships, property, legal regime of a share.

DOI: 10.12737/19207

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USING OF THE INSTITUTE OF UNJUSTIFIABLE ENRICHMENT IN SETTLEMENT RELATIONSHIP  Pdf 16

C. LAUE

judge of the Federal State of Saxony Leipzig, Germany
E-mail: carolin.laue@gmail.com

In 2009 Directive 2007/64/EC of the European Parliament and of the Council of November 13, 2007 on payment services in the internal market was implemented into the German civil law. The article deals with theoretical and practical problems of the recovery of money paid by mistake based on the principles of unjust enrichment according to the German law with regard to the new regulation. Тhe German Civil Codex (BGB) distinguishes between “performance” and “non-performance” conditions. By presenting basic arguments the author shows that this is of crucial importance for the concept of the recovery of money paid by mistake under the principles of unjustified enrichment. Due to the new regulation the Federal Court of Justice (Bundesgerichtshof) in Germany has recently changed its legal opinion. The article compares the legal position before and after the implementation of the directive on payment services into the German law and its impact on the German legal concept of the recovery of money paid by mistake under the principles of unjust enrichment.

Keywords: banking law, payments and settlement, recovery of money paid by mistake, liability, unjustified enrichment, the German law.

DOI: 10.12737/19208

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PARTICULAR FEATURES OF CONTRACTUAL INHERITANCE OF LEGAL CLAIMS AND OTHER LIABILITIES  Pdf 16

E. G. PILIPSON

LL.M. doctoral studies at Riga Stradins University, attorney at law qualification
16, Dzirciema st., Riga, Latvia, LV-1007
E-mail: e.pilipsons@privattiesibas.lv

Contractual succession of legal claims and liabilities in administering rules of private international law is a quite complicated practical problem. The correct choice of the applicable law is the priority in this situation. As of today inheritance of movables, including claims, liabilities takes place according to the connecting factors’ rules “lex patriae” and “lex domicilii” which according to the offered assumption, are not adequate in a situation of the inheritance by contract. It is worth mentioning that in some cases the right to claim, liability acquires legal regime called “res in transitu” which requires special succession regime. Secondly, it is necessary to evaluate the subject matter of the contract. Inheritance by contract is mediated by the tools of the contractual right which is based on the concluded contract with the cross material perquisites evaluated in a certain sum. Due to this circumstance the assessment should be accepted as a basis for the contract price. Since in accordance with the current legislation the assessment can be made solely in relation to a constant liability (for example, in the situation with a contract of purchase), in case of a contractual inheritance of legal claims (cession), it is not clear how provisional assessment can be made, as the cost of liabilities can change drastically depending on circumstances in the course of a certain period of time. This article is devoted to the investigation of these problems.

Keywords: applicable law, claims, inheritance by contract, liabilities.

DOI: 10.12737/19209

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ROLE OF FICTIONS IN REGULATION OF PROPERTY RELATIONS IN THE MEDIEVAL ENGLISH LAW  Pdf 16

R. B. RYBAKOV

lawyer, American Bar Association
24/7, Myasnitskaya st., Moscow, Russia, 101000
E-mail: rybakovroman@gmail.com

The article is devoted to legal fictions in regulating property relations in the English medieval common law (XIII—XVII centuries). Fictions are explained as features influencing the development of law, means of expansion of courts’ jurisdiction and mechanisms of the development of remedies protecting property relations. The article focuses on the role of fiction during the appellate review stage. Relevant case law is analyzed in this article. In this research the author uses the following set of methods of scientific cognition: dialectical method, historical method as well as special scientific research methods, such as technical legal method, comparative law method, formal legal method and legal interpretation method. This research results in better understanding of the role of fictions during the appellate review stage and provides analysis of differences between legal fictions used in the medieval civil law and the common law. In conclusion, the author suggests a classification of legal fictions’ functions in the medieval English common law.

Keywords: legal fiction, medieval English law, common law, property rights, assumpsit, precedent, appellate review, trust, liquidated damages, title to land.

DOI: 10.12737/19210

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TRADEMARK LAW IN CANADA  Pdf 16

A. S. PROKOFIEV

chief legal officer of JSC System Operator of the Unified power system
7/3, Kitaygorodsky proezd, Moscow, Russia, 109074
E-mail: alexprok86@gmail.com

In the present article the author reviews the contents of sources of the trademark law in Canada, which include not only statutes and regulations, but also case law and doctrine. The author touches upon such core issues in legal regulation, as the notion of trademark and its types (certification mark and distinguishing guise), peculiarities of their legal protection, legal implications of trademark registration or absence thereof, as well as of actual use or non-use of the mark. The author analyses legal standpoints elaborated in practice, such as the doctrine of functionality and quality control during trademark licensing. The author also reviews correlation of rights to the trademark itself and to the goodwill attached thereto.

Keywords: civil law, intellectual property, comparative law, Canada, trademark, certification mark, distinguishing guise, remedies, goodwill, license, quality control.

DOI: 10.12737/19211

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JUDICIAL COMPLIANCE ASSESSMENT AS A KEY FACTOR OF ENFORCEMENT OF THE EURASIAN LAW AND ORDER  Pdf 16

A. A. FEDORTSOV

chairman of the Court of the Eurasian Economic Union, honored lawyer of the Republic of Belarus
5, Kirov st., Minsk, the Republic of Belarus, 220006
E-mail: info@courteurasian.org
 

The article presents the development of the Eurasian integration processes and the role of the Court of the Eurasian Economic Union in ensuring the uniform application of the Eurasian Economic Union law. Basing on the generally accepted approaches to understanding the importance of the international judicial body for international relations, the author reveals the organizational structure of the Court of the Eurasian Economic Union, the key aspects of the competence of the Eurasian institute of judicial protection. The author compares the missions of the international court and the national body of the constitutional control. The author draws attention to the procedural requirements for the implementation of the Court’s jurisdiction: procedures for dispute considering, and also to the importance of high-quality execution of the Court decisions in order to ensure efficient compliance assessment. The conducted analysis takes into account the statistics of the Court’s performance during its first year of functioning (2015). The author expresses his point of view on the need to create mechanisms of cooperation between the Court of the Eurasian Economic Union and the supreme judicial authorities of the States, including constitutional courts and councils, for proper implementation of judicial compliance assessment within the framework of the Eurasian Economic Union.

Keywords: Eurasian Economic Integration, the Court of the Eurasian Economic Union, law of the Eurasian Economic Union.

DOI: 10.12737/19212

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NEW LAW “ON JURISDICTIONAL IMMUNITIES OF FOREIGN STATES AND THEIR PROPERTY”  Pdf 16

I. O. KHLESTOVA

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

The article is devoted to the analyses of the new Law on jurisdictional immunities of states and their property of 2015. The Law accepts the fundamental notions of the UN Convention on jurisdictional immunities of states and their properties of 2004. The Law envisages that a foreign state enjoys jurisdictional immunities for itself and in respect of its property subject to the provisions of this Law. The Law establishes exceptions from the judicial immunity of a foreign state. A foreign state does not enjoy judicial immunity in respect of disputes related to civil transactions if these transactions are not related to the exercise of sovereign powers of authority by this state. With certain exceptions a foreign state does not enjoy judicial immunity in respect of disputes concerning commercial and other economic activity within the territory of the Russian Federation, labor disputes, disputes related to immovable property located in the Russian territory, disputes related to personal injuries and damage to property, disputes related to intellectual property, disputes related to running of state owned vessels. The Law provides a foreign state’s property with the immunity from injunctive measures. The Law defines categories of a foreign state’s property which enjoy immunity from enforcement process. The Law provides for the reciprocity. The Law is based on the concept of restrictive immunities of a foreign state.

Keywords: jurisdictional immunities, foreign state, concept of restrictive immunities, reciprocity.

DOI: 10.12737/19213

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TERRITORIAL DISPUTE BETWEEN NICARAGUA AND COSTA RICA IN CONNECTION WITH THE CONSTRUCTION OF THE TRANSOCEANIC CANAL IN NICARAGUA AND THE POTENTIAL POSITION OF RUSSIA  Pdf 16

S. A. VASHCHENKOV

deputy chief of scientific centre of the Management Academy of the Ministry of Internal Affairs of the Russian Federation, candidate of economic sciences, police colonel
8, Kosmodemianskikh st., Moscow, Russia, 125171
E-mail: s.vash@rambler.ru

The paper considers the problem of territorial disputes between various states. The author analyzes the above problem in the context of the territorial dispute between Nicaragua and Costa Rica associated mainly with the canal construction in Nicaragua. This canal will connect the coasts of the Pacific and Atlantic Oceans and become an alternative to the Panama Canal. The paper provides the potential position of the Russian Federation towards this problem and possible participation of BRICS-members in the canal construction. Also the author underlines the United States’ point of view regarding this problem, their influence on this territorial dispute aiming at aborting the Nicaragua Canal construction project. The author covers the position of the United Nations on this problem and possible participation of the Organization of American States in resolving this territorial dispute. The author evaluates political, financial and ecological aspects related to the construction of the canal.

Keywords: territorial dispute, transoceanic channel, international relations, Nicaragua, Costa Rica, Russia, USA.

DOI: 10.12737/19214

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PRIVATE INTERNATIONAL LAW IN GLOBAL WORLD  Pdf 16

N. V. VLASOVA, O. V. MURATOVA

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

O. V. MURATOVA, junior 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: olgbelusva@rambler.ru

The article contains the review of the International scientific-practical conference “Private International Law in Global World” devoted to the 90th anniversary of the birth of O. N. Sadikov, classic of the Russian civil law, Doctor of Law, Professor, honoured worker of science of the Russian Federation, which took place on November, 18, 2015 in the Institute of Legislation and Comparative Law under the Government of the Russian Federation. The members of the working group on amendments to Chapter 3 of the Civil Code of Russian Federation, top scientists, representatives of the academic community and leading higher educational establishments, legal practitioners, arbiters of International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation, academics from the former Soviet Union and elsewhere took part in the conference. A wide scope of common and special questions was discussed during the conference: exploration of the development trends in the private international law such as unification and self-governing; the results of the renewal of Section VI “Private International Law” of Chapter 3 of the Civil Code of the Russian Federation as well as the amendments to foreign legislative acts on private international law; the problems of legal regulation of several institutes of private international law, concerning, for example, the status of legal entities, proprietary relations, competitive relations under the conditions of globalization of the world economic cooperation, conflict-of-law rules according to pre-contractual relations, ruling of international jurisdiction in international property matters, etc.; settlement of the problem of foreign state’s immunity.

Keywords: private international law, globalization, unification, UNIDROIT Principles, the Hague Principles on Choice of Law, jurisdictional immunity, avoidance of law, overriding mandatory rules, intellectual property, pre-contractual relations.

DOI: 10.12737/19215

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ANALYTICAL REVIEW OF THE WORK OF THE 105th 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

The article presents a brief review of the activities of the European Commission for democracy through law (Venice Commission) during the 105th plenary session held in Venice in December 2015.

Keywords: European Commission for democracy through law (Venice Commission), Council of Europe, the 105th plenary session, human rights, rule of law, judiciary, constitutional justice, constitutional reform, democratic principles, the European standards of democracy, report.

DOI: 10.12737/19216

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REVIEW OF THE BOOK “SCIENTIFIC CONCEPT OF DEVELOPMENT OF THE RUSSIAN LEGISLATION” (monograph. 7 th ed., revised and supplemented. S. E. Naryshkin, T. Y. Khabrieva, A. I. Abramova, etc.; еditors-in-chief T. Y. Khabrieva, Y. A. Tikhomirov; the Institute of Legislation and Comparative Law under the Government of the Russian Federation. Moscow, 2015. 544 p.) (in French)  Pdf 16

Gérard MARCOU

professor of the University of Paris 1 Panthéon-Sorbonne, doctor of law, chief research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office@izak.ru

The review sets out the opinion of a French lawyer with respect to the fundamental research prepared by a team of scientists from the Institute of Legislation and Comparative Law under the Government of Russian Federation. It is noted that the monograph contains not only a detailed analysis of the legal framework but also proposals aimed at improving the quality of the Russian legal system. The publication is also aimed at solving problems in the context of the reform of the Russian law and is a doctrinal contribution to the renewal of the Russian legislation. It is emphasized that the study reflects changes in the administrative law and process in Russia which are very similar to the events in Western Europe. Emphasis is laid on the Russian legal approaches which are not used in the Western European legal tradition, but deserve more attention on the part of foreign colleagues.

Keywords: Institute of Legislation and Comparative Law under the Government of the Russian Federation, Russian legislation, scientific concept.

DOI: 10.12737/19217

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