Contents # 4/2016

CORRUPTION AND LEGAL ORDER IN THE FOCUS OF MODERN LEGAL DOCTRINE  Pdf 16

T. Y. KHABRIEVA

director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, vice-president of Russian Academy of Sciences, academician of Russian Academy of Sciences, associate member of the International Academy of Comparative Law, doctor of legal sciences, professor, honored lawyer of the Russian Federation, honored lawyer of the Republic of Tatarstan
22/24, Bolshoy Kharitonievskiy lane, Moscow, Russia, 107078
E-mail: office@izak.ru

Counteracting corruption is one of strategic objectives for cooperation among states of the Eurasian region, the objective thereof is of significant impact on the process of interstate integration. The dynamics thereof determines the status and the solution of a number of tasks of both theoretical and practical nature, and, inter alia, most importantly, understanding of new challenges posed by corruption which is currently facing practically all countries of the Eurasian region, as well as search for adequate responses to said challenges. The analysis of contemporary transformations relating to corruption led the author to make the conclusion of the necessity to develop not only new tactical solutions, but also qualitatively new approaches to counteract corruption. The author is drawing the attention to the problem as closely interrelated with the law and order, thus leaving no room for corruption practices. Such attitude enables to substantially perfect the strategies and tactics employed to combat corruption nationally and internationally, and also outlines new targets in decision-making processes at the state level. It is in this connection that the author looks into the already known legal mechanisms employed to counteract corruption - anti-corruption legislation, law enforcement issues, legal education, as well as contemporary legal technologies employed to combat this social phenomenon such as anticorruption expertize of the normative legal acts, legal monitoring, etc. It also emphasizes the importance of the processes relating to Eurasian integration for making states more active in counter corruption activities. The author calls for unification of legal decisions adopted by states and suggests new ways for further cooperation among the states of the Eurasian region.

Keywords: anti-corruption expertise, anti-corruption behavior, anti-corruption standards, the Eurasian integration, legislation, compliance, corrupt practices, corruption, monitoring, legal education, law and order, law enforcement, justice, social control.

DOI: 10.12737/21241

Adobe pdf 24  Download

CONFLICT OF INTERESTS: CONTENTS, PROCEDURE FOR PREVENTION AND SETTLEMENT  Pdf 16

V. I. MIKHAYLOV

deputy head of the department of corruption prevention of the Administration of the President of the Russian Federation, doctor of legal sciences, associate professor, honored lawyer of the Russian Federation
4, Staraya sq., Moscow, Russia, 103132
E-mail: vim2007@yandex.ru

The author of the article reviews a definition of conflicts of interest which are used in such international legal acts as the Convention of the United Nations against corruption (2003), The Convention against bribery of foreign officials during implementation of international commercial transactions which was adopted by the Organization for Economic Cooperation and Development (1997), as well as in the national legislation of the Russian Federationа and a number of other countries (The Republic of Belarus, the Republic of Moldova, the Kyrgyz Republic). Subject to analysis are the organizational and legal mechanisms aimed at preventing and settlement of conflict of interests, procedure of notification of personal interests which might give rise to the collision of interests both within the sphere of state sector and private sector alike. Along with it the author analyses the problems in the course of implementation of the respective legal machinery. Specifically, it relates to the moral aspects of prevention and settlement of the conflict of interests in view of deficiencies in the existing system of normative anti corrupt prohibitions, restrictions and obligations - all aimed to prevent all possible types of corruptive practices.

Keywords: conflict of interests, personal interest, counteracting corruption practices, state service, municipal service.

DOI: 10.12737/21242

Adobe pdf 24  Download

CRIMINALIST COMPARATIVE ANALYSIS AS THE METHOD TO USED TO REVEAL AND INVESTIGATE CRIMINAL ACTS AGAINST THE RULES OF ECONOMIC ACTIVITY  Pdf 16

L. V. BERTOVSKIY

professor of department of criminal law, criminal procedure and criminalistics of the People’s Friendship University of Russia, doctor of legal sciences
6, Miklukho-Maklaya st., Moscow, Russia, 117198
E-mail: bgl1980@yandex.ru

The article defines illegal economic activities, the proposed method of forensic comparative analysis as one of the main methods of detection, disclosure, investigation and prevention of criminal violations of the rules of economic activities. The study outlines four types of forensic comparative model analysis of single models, some standard information models, the actual models and several models of type character, the analysis of actual models with one model object of the same order. On the basis of the specified method of the proposed scheme on the detection, disclosure and investigation of crimes related to illegal economic activities.

Keywords: criminalistics analysis, economic activity, exposure and prevention of crime.

DOI: 10.12737/21243

Adobe pdf 24  Download

ELECTRONIC GOVERNMENT AS AN INSTRUMENT TO BE USED TO COUNTERACT CORRUPTION IN THE RUSSIAN FEDERATION  Pdf 16

O. A. STEPANOV

head of the chair of state and law disciplines of the Academy General Prosecutor’s Office of the Russian Federation, doctor of legal sciences, professor
2, Azovskaya st., Moscow, Russia, 117638
E-mail: agp@agprf.org

The article discusses the features and prospects relating to the development of technology of “electronic government” due to the use of electronic information systems and the introduction of scientific and practical turnover category “standard-setting action”. Events are interpreted as the expression of functional external relations of the subjects of the right to information through the use of the code which reflects the algorithm acts of such entities as the digital code of fixed length, which carries the regulatory information, reflecting more or less similar to the original legally significant situation. Based on the need for uniform accounting standards in judicial practice, it is important to optimize the use of such information in order to improve the efficiency of anti-corruption court. This state can promote the computer evaluation of the quality of the developed judicial act (judgment, ruling), connected with the development and creation of a comprehensive quality management system of judicial decisions based on the use of modern software and hardware. Integrated quality management system in judicial decisions should be composed of at least two groups of models: the first is to describe the boundary condition for the existence of society, and the second - human activity. This first group of models should be attributed to the number of basic and human activity unit must be built on the basis of established legal limits. This involves consideration of the process of preparation of the judicial act (decision, judgment) on the basis of the synthesis of the legal needs of society and the state with the parameters of human rights and freedoms.

Keywords: electronic government, control over the implementation of state turn-order, standard-setting action, a comprehensive system of quality of judicial decisions.

DOI: 10.12737/21244

Adobe pdf 24  Download

CORRUPTION IN RUSSIA: METHODOLOGY RESEARCH  Pdf 16

E. L. SIDORENKO

professor of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation, head of the laboratory of criminological analysis 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: 12011979@list.ru

This paper reveals the author’s assessment method of corruption in Russia and as well as in regions of Russia, in order to justify the introduction into scientific circulation polyfactorial corruption index. It’s based on the mathematical correlation between the measurement of the job crime and major social, economic and political indicators relating to the development of society. The use of polyfactorial corruption index is suggested to calculate the total value of the potential corruption and corruption risks. Said calculations helped to reveal regions with a high risk of corruption and structure the forecasts of bribery situation in Russia until 2020. The author establishes a relationship between the level of corruption and the main socio-economic indicators and explains the trend of corruption in Russia.

Keywords: corruption, korruptsiometriya, Monkor, dynamics, state, criminological analysis.

DOI: 10.12737/21245

Adobe pdf 24  Download

QUESTIONS OF INFORMATION SUPPORT OF PROSECUTORIAL SUPERVISION OVER ENFORCEMENT OF ANTI-CORRUPTION LAWS  Pdf 16

E. B. KHATOV

head of the chair of organization and management in the bodies of Procurator’s Office of the Academy General Prosecutor’s Office of the Russian Federation, candidate of legal sciences, associate professor
2, Azovskaya st., Moscow, Russia, 117638
E-mail: agp@agprf.org

The present article is devoted to identifying the sources and gathering information system in the process of prosecutorial supervision over the implementation of laws on combating corruption. On the basis of the content of the legal acts regulating the activities of designated prosecutors in the field of supervision over the implementation of laws on combating corruption as well as the application thereof, and also statistics, the author undertakes to study the information component of the activities of prosecutors in the field in question. The definition and classification are based on the information used in this area by supervisory agencies. The author analyzed the powers of prosecutors in the field in question. Special attention is given to the existing restrictions established for the methods of working with the information that is accessible to prosecutors. The author specifies the causes which give rise to liability for breach of such requirements. The article also contains a number of recommendations relating to the collection and identification of sources of information in the exercise of prosecutorial supervision over the implementation of laws on combating corruption. The conclusion is that the achievement of positive results in supervisory activities in this area is impossible without the high-quality information and analytical support for the activities of the prosecutor.

Keywords: prosecutorial supervision, anti-corruption, information and analytical support.

DOI: 10.12737/21246

Adobe pdf 24  Download

LEGAL REGULATION OF LIABILITY FOR LAUNDERING (LEGALIZATION) OF THE PROCEEDS OF CORRUPTION IN THE REPUBLIC OF KAZAKHSTAN  Pdf 16

D. Kh. GEKHOVA

senior research fellow of the department of methodology of the corruption counteraction 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: 9011118@mail.ru

The article notes that the Eurasian group on combating money laundering and financing of terrorism (EAG) is the largest of the regional FATF-type bodies (Group of development of financial measures for combating money laundering — Financial Action Task Force, FATF) from the point of view of the entire area and population of member States and it covers such countries as Belarus, Kazakhstan, China, Kyrgyzstan, Russia, Tajikistan and Uzbekistan. Observer status in the EAG has been granted to 16 States and 14 international and regional organizations. The key task of the EAG is to assist the regional States in the creation and development of national systems to combat money laundering and financing of terrorism. The implementation of this task is conducive to the economic security and stability of the region, it also prevents the threat of international terrorism and helps to increase investment attractiveness of the region. Republic of Kazakhstan, as a young member of the international community, in the beginning of its career was sympathetic to the recommendations and requirements of the world community to conform its domestic legislation to the norms and provisions of international law. Naturally, it was a time consuming process but today we can safely say that, overall, domestic law and criminal legislation of Kazakhstan, in particular the General principles, are consistent with international standards in this area. It propounds that Republic of Kazakhstan as a responsible member of the international community, it consistently seeks to implement the recommendations and provisions of international legal norms, and today the domestic law of Kazakhstan on countering the legalization of illegal income is in full compliance with the world standards.

Keywords: Republic of Kazakhstan, anti-corruption, anti-corruption measures, regulation of liability, laundering (legalization) of the proceeds of corruption.

DOI: 10.12737/21247

Adobe pdf 24  Download

LAW AND ORDER AND CORRUPTION: PRESENT-DAY CHALLENGES  Pdf 16

Yu. V. TRUNTSEVSKIY, D. Kh. GEKHOVA, O. V. MURATOVA

Yu. V. TRUNTSEVSKIY, deputy head of the chair of risks analysis and economic security of the Financial University under the Government of the Russian Federation, doctor of legal sciences
49, Leningradskiy ave., Moscow, Russia, 125993
E-mail: kb239trun@fa.ru

D. Kh. GEKHOVA, senior research fellow of the department of methodology of the corruption counteraction 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: 9011118@mail.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, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: olgbelusva@rambler.ru

The article examined the following aspects: universal means of countering corruption in the various legal systems; the main directions of the state anti-corruption policy at the present stage; criminological features of crime of corruption, as well as theoretical and practical issues related to increasing of the efficiency of mechanisms for the settlement of competing interests. The scientific ideas and new approaches of the anti-corruption efforts were identified and formulated by the participants of the Fifth Eurasian Anti-Corruption Forum “Law and Order and Corruption: Modern Challenges”, held in Moscow on 20 - 21 April 2016. The annual Eurasian Anti-Corruption Forum is traditionally attended by representatives of international and foreign organizations (IACA, FATF, OECD, EAG, Transparency International, UNCAC), the federal and regional governmental bodies, scientific and educational institutions and leading Russian and foreign experts. The main Forum’s goals - understanding of fundamental scientific and actual problems of realization the principles of the rule of law in the formation of international and national anti-corruption strategies, as well as the discussion of the problems relating to overcoming of the prerequisites of conflict of interest and corruption practices in the public and private spheres.

Keywords: Eurasian Anti-Corruption Forum, fight against corruption, national plan, “network” of corruption, anti-corruption clause.

DOI: 10.12737/21248

Adobe pdf 24  Download

CONSTITUTIONAL GUARANTEES FOR THE TRANSFER BY MEMBER STATES OF THE AUTHORITY TO THE EURASIAN ECONOMIC UNION AND EUROPEAN UNION  Pdf 16

L. V. SHCHUR-TRUKHANOVICH

deputy head of the legal department of the Euarasian Economic Commission, candidate of economic sciences
3/5, Smolenskiy boulevard, Moscow, Russia, 119121
E-mail: stlv-mpt@yandex.ru

This article presents an analysis of constitutional grounds for the transfer of certain powers of the state by Member-States of the European Union (EU) and the Eurasian Economic Union (EAEU). The focus of the legal analysis is the EAEU, a regional integration grouping which is operating since 1 January 2015. This new international organization, comprising Armenia, Belarus, Kazakhstan, the Kyrgyz Republic and Russia is rapidly developing, making the use of the powers vested into it by its Member-States. However, only one Member-State of the EAEU has a constitutional act that contains norms allowing the transfer of certain powers to an international association - namely, the Constitution of the Russian Federation. The constitutional acts of other Member-States of the EAEU do not contain such provisions, and the relevant analysis was left to the constitutional judiciary authorities of those states. In contrast, constitutional acts of most European states contain norms that generally establish the right of the state to transfer certain powers to international organizations and associations, and, moreover, that specifically refers to the EU as a subject of such a transfer, while at the same time outlining procedures for the interaction between governmental bodies of those states and the institutions of the EU. By making a comparative analysis of international norms and national constitutional provisions in the EU and EAEU, the article attempts to estimate the relevant risks for the EAEU, and identify the conditions in which they may occur.

Keywords: integration, European Union, Eurasian Economic Union (EAEU), Eurasian Economic Commission, Court of the Eurasian Economic Union, constitutions of EAEU Member-States, transfer of powers to international organizations, Treaty on the Eurasian Economic Union.

DOI: 10.12737/21249

Adobe pdf 24  Download

DEVELOPMENT OF CONSTITUTIONAL LAW REGULATING HEALTH PROTECTION AND MEDICAL ASSISTANCE, JUDICIAL PROTECTION AND EXTRAJUDICIAL PROTECTION: COMPARATIVE LAW SURVEYS  Pdf 16

I. V. TIMOFEEV

judge of the St. Petersburg Statutory Court, doctor of medical sciences, professor, honored worker of the Higher School of the Russian Federation
62, Suvorovskiy ave., St. Petersburg, Russia, 191124
E-mail: oss@spbustavsud.ru

The article examines from a comparative law pint of view the emergence and development of a constitutional right on health protection and medical care, judicial and extrajudicial protection. The examination is based on the evolution of the legal registration and the content of the subjective rights and ways of its protection. The author offers wider use of extrajudicial mechanisms for the protection of this right in territorial subjects of the Russian Federation, at the federal level, as well as international level. The article stresses the importance of recognition of the principle of availability and quality of medical care at constitutional level.

Keywords: health protection, medical care, constitutional law, judicial and extrajudicial protection.

DOI: 10.12737/21250

Adobe pdf 24  Download

NEW DIRECTIONS OF CONSTITUTIONAL REFORMS IN FOREIGN COUNTRIES (DYNAMICS OF THE LAST FIVE YEARS)  Pdf 16

T. S. MASLOVSKAYA

associate professor of the constitutional law department of the law faculty of the Belarusian State University, candidate of legal sciences, associate professor
8, Leningradskaya st., Minsk, Republic of Belarus, 220030
E-mail: maslovskayat@rambler.ru

The article analyzes the conditions of the constitutional reforms in foreign countries, the goal of constitutional changes at the present stage. Attention is paid to popularity of practice of adopting of interim constitutions. We study the full and partial constitutional reforms passed in foreign countries over the past five years. Provide new directions of constitutional reforms, based on modern challenges. Careful attention is paid to analysis of constitutional reforms as a response to the crisis: a crisis of values in society and the state, the security crisis. Subject to review are new constitutions of the XXI century, as well as draft constitutional laws. Provided the tendency of strengthening the state’s position in order to protect national interests. The author attempts to envisage further constitutional development in foreign countries.

Keywords: constitution, constitutional law revision, crisis, constitutional values, security, foreign states.

DOI: 10.12737/21251

Adobe pdf 24  Download

CONSTITUTIONAL LEGAL REGULATIONS AS AN ELEMENT OF THE LEGAL PREVENTION OF INTERNATIONAL TERRORISM  Pdf 16

D. A. KOSHKINA

official of the department of information security, Central Personnel of the Ministry of Interior of the Russian Federation
16, Zhitnaya st., Moscow, Russia, 119049
E-mail: morgenstern03@rambler.ru

The article raises the most actual question: the problem of the prevention of international terrorism — and the mechanisms of the legal security of the counterterrorist activity. All these are analyzed at the constitutional level. Having this in mind the author undertook the respective analysis and established that a few of them have such legal regulations. Examples are to be found in the Islamic Republic of Afghanistan, the Republic of Iraq and the Arab Republic of Egypt. The attempt is made to explain the reasons of the existence of these legal regulations in the main laws of these countries and to define the efficacy of their application and realization into the practice. On the basis of analysis the author proposed to include the similar legal regulations in the Constitution of the Russian Federation.

Keywords: constitution, international terrorism, prevention of international terrorism, constitutional regulations, efficacy.

DOI: 10.12737/21252

Adobe pdf 24  Download

POSTHUMOUSLY CONCEIVED CHILDREN: DETERMINATION OF PARENTAGE AND INHERITANCE RIGHTS  Pdf 16

M. L. SHELYUTTO

leading research fellow of civil law and process 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 possibility to store sperm and to produce embryos in vitro has made it possible for a child to be conceived after the death of one or even both of the child’s parents and the number of posthumous conceptions has increased in recent decades around the world. Posthumous reproduction raises a complex of legal issues: has someone the right to harvest sperm from a dead man body and to use cryopreserved sperm, embryos or eggs to conceive a child after the death of his (her) genetic parent, can posthumously conceived child have legal tie with such a parent and inherit from his (her) parent? These issues have direct relevance to human rights in the sphere of reproduction and the rights of posthumously conceived child simultaneously. According to foreign law the key questions in determination of parentage are the consent of the deceased person to use postmortem reproduction and his or her consent to be a parent of posthumously conceived child. Traditionally to inherit, a person must be alive at the death of the testator or to be conceived before the death, but this rule has been already changed in 21 states of the USA and the Canadian province of British Columbia, where posthumously conceived children can inherit. However, besides the determination of parentage, there are several other additional conditions of their inheritance rights.

Keywords: assisted reproductive technology, posthumous conception, parentage, inheritance rights.

DOI: 10.12737/21253

Adobe pdf 24  Download

GLOBALISATION OF THE WORLD TRADE FROM THE PERSPECTIVE OF THE PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS UNIDROIT  Pdf 16

M. V. MESHCHANOVA

associate professor of the civil law department of the law faculty of the Belarusian State University, candidate of legal sciences, associate professor
4, Nezavisimosti ave., Minsk, Republic of Belarus, 220030
E-mail: miashchanava@bsu.by

This paper is concerned with the role of the UNIDROIT Principles in the processes of legal globalization. The central argument is that this non-State codification does not have a legal binding nature, but this document which covers the rules of conduct and dispute settlement, no doubt, contributed to the acceleration of globalization of world trade. It analyses the revision of the UNIDROIT Principles since 1994 to the current version of 2010 and from the stand point of strengthening of the general approaches in legal regulation and extension of the scope of their application. The UNIDROIT Principles may have impact on the reform of the national legislation of various countries, thus, facilitating the process of harmonization of Contract Law. At the same time it is noted that many of the provisions of the national legislation, and, in particular, the German Civil Code, may serve as the basis for progressive development of the mentioned non-state codification. This set of unified rules may be used as an instrument for the interpretation of the terms enshrined in international commercial contracts.

Keywords: legal globalization, soft law, «overriding» provisions, set of rules.

DOI: 10.12737/21254

Adobe pdf 24  Download

AN ISLAMIC VIEW OF INTERNATIONAL COMMERCIAL LAW (COMPARATIVE STUDY) (in English)  Pdf 16

Mostafa MIRMOHAMMADI

assistant professor of international law, director of Center for comparative law studies, Mofid University
P. O. Box: 37185-3611, Mofid sq., Qom, Iran
E-mail: CCLS@mofidu.ac.ir

This article addresses comparative study of some ethical and legal rule in Islamic Jurisprudence (Figh). The first aim of this study is a review of Islamic teaching in the realm of commercial law and the second — is seeking and introducing similar concepts in the other legal systems. Therefore, the article divided in two sections. In the first section the author discusses about those principles and rules govern on international trades and next section will intrude some commercial ethical codes in Islamic teaching.

Keywords: Islamic jurisprudence, UNCTAD, commercial law, Muslim jurists, ethical rule.

DOI: 10.12737/21255

Adobe pdf 24  Download

AN ISLAMIC VIEW OF INTERNATIONAL COMMERCIAL LAW (COMPARATIVE STUDY) (in Russian)  Pdf 16

Mostafa MIRMOHAMMADI

assistant professor of international law, director of Center for comparative law studies, Mofid University
P. O. Box: 37185-3611, Mofid sq., Qom, Iran
E-mail: CCLS@mofidu.ac.ir

This article addresses comparative study of some ethical and legal rule in Islamic Jurisprudence (Figh). The first aim of this study is a review of Islamic teaching in the realm of commercial law and the second — is seeking and introducing similar concepts in the other legal systems. Therefore, the article divided in two sections. In the first section the author discusses about those principles and rules govern on international trades and next section will intrude some commercial ethical codes in Islamic teaching.

Keywords: Islamic jurisprudence, UNCTAD, commercial law, Muslim jurists, ethical rule.

DOI: 10.12737/21256

Adobe pdf 24  Download

PLASMA OF BLOOD: LEGAL STATUS AND TURNOVER THEREOF IN RUSSIAN AND EUROPEAN CIVIL LAW SYSTEMS  Pdf 16

V. A. TRUBINA

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

The shortage of blood plasma medicine in the Russian Federation has made the production of domestic medicine a top priority task of the state. Until recently the blood products were made mainly by state-owned enterprises, nowadays this has become very attractive for privately owned companies. In practice, they have to deal with the ambiguity of the status and transferability of blood plasma at different stages of the medicine production line. Therefore, the issue of legal regulation of plasma as the main raw material for the production of blood medicine has become to be a practical issue. This article attends to the problem of the nature and legal status of human blood plasma from the point of view of currently effective laws of the Russian Federation and European legislation. Special attention is paid to the basic principles applied to the use of human tissues and organs. The author reviews the legal regulation relating to the status of a human body and its organs from the point of view of international legal norms, civil legislation of the EU, Switzerland and the Russian Federation. Also, the author reasons the proprietary nature of the blood plasma as a source for biological medicine, and describes the factors limiting its transferability. The conclusion contains brief description of the legal status of the blood plasma.

Keywords: legal status, human blood plasma, transferability, medicinal products.

DOI: 10.12737/21257

Adobe pdf 24  Download

FORCE MAJEURE IN PAST ARBITRATION COURT RULINGS IN THE CIS COUNTRIES: COMPARATIVE ANALYSIS OF RULES OF NATIONAL LEGISLATION AND PRIVATE INTERNATIONAL LAW BY THE CIS ECONOMIC COURT (part 2)  Pdf 16

E. N. NAGORNAYA, T. N. ZATSEPINА

E. N. NAGORNAYA, judge of the Economic Court of the Commonwealth of Independent States, secretary of the CIS Economic Court’s Plenum, candidate of legal sciences, honored lawyer of the Russian Federation
17, Kirov st., Minsk, Republic of Belarus, 220030
E-mail: evabelarus@mail.ru

T. N. ZATSEPINА, ex-chief advisor of procedural and law department of the Economic Court of the Commonwealth of Independent States, candidate of legal sciences
17, Kirov st., Minsk, Republic of Belarus, 220030
E-mail: aglod@yandex.ru

The authors present the second part of the article dedicated to investigation of controversial legal moments in relation to the classification of any circumstances to force majeure. Taking into account the different approaches to the interpretation of concepts and features of force majeure in the legislation of CIS participant-states it is principially important to determine the criteria for the establishment of such circumstances and the conditions for the exemption from liability in case of violation (non-fulfillment) of obligations due to their occurrence during the consideration of economic (business) disputes by the courts. On the basis of the results of the study and the scientific public opinions, the conclusion is based on the possibility (and the need) to develop common approaches within the CIS in the classification of certain circumstances as force majeure; the most appropriate form for this can be the interstate informative act.

Keywords: Commonwealth of Independent States, the CIS Economic Court, force-majeure qualifying requirements, courts of CIS participant-states, economic disputes, international recommendations.

DOI: 10.12737/21258

Adobe pdf 24  Download

THE EUROPEAN PROCEDURAL MODELS IN JURY TRIALS: JURY TRIAL IN BELGIUM (COMPARATIVE LEGAL RESEARCH)  Pdf 16

S. A. NASONOV

associate professor of criminal procedure law department of the Kutafin Moscow State Law University, candidate of legal sciences
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: sergei-nasonov@yandex.ru

The article is devoted to the peculiarities of the procedural rules in the jury administered in Belgium in compliance with the Rules adopted in 1878 (with amendments of 2016) as a type of a European model procedure. These features are considered in the comparative legal aspect, in comparison with the same procedure that of the Russian CCP. The article notes that the requirements for candidates for jurors, enshrined in the Code of Criminal Procedure of Belgium, in general, are similar to the Russian requirements. The procedure of drawing up lists of candidates for jury service in Belgium has significant similarities with the Russian, as there is the absence of open (transparent) procedures, which is compensated by the publication of the lists. Features of the Belgian procedure of selecting the jury manifested in the establishment of the rule of gender proportions of the panel, which is not typical for the Russian legislation and practice. The proceeding in the jury trial in Belgium is an example of the continental type of this form of proceeding and its significant differences from the same procedure, enshrined in the Russian CCP are based on this factor. The presiding judge has broad discretion in the field of proving, as all questions set by the parties for interrogated persons are asked through him. The features of the judicial enquiry in jury in Belgium are: the presentation of an indictment and defense objections to the jury, the prohibition to the parties to put questions to the defendant, an extensive research of the personal information of the defendant before the jury. The article notes the specifics of the stages of putting the questions to jury, of charging the jury (the presiding judge don’t address the facts of the case), of the jury deliberations, as jury is obliged to motivate the verdict. The article suggests the possibility of the borrowing of the certain elements of the Belgian model of proceeding into a jury trial of the Russian legislation.

Keywords: jury trial, juror, verdict, judicial enquiry, examination of a witness, sentence, charging a jury, selection of a jury, proving.

DOI: 10.12737/21259

Adobe pdf 24  Download

SPECIFIC FEATURES OF ECONOMIC INTEGRATION OF LATIN AMERICAN COUNTRIES  Pdf 16

N. G. DORONINA

deputy head of the department of economic and legal problems 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: office2@izak.ru

The article is about the way to achieve economic integration. Latin American countries after receiving independence began to work hard to strengthen their States through integrating into confederation. On the basis of International Treaties, the Bustamante Code and the Andean Investment Code were adopted. The methods of economic integration in Latin America were adopted for regional integration (The Hague Conference on Private International Law and Inter-American Conference on Private International Law) as well as integration of universal type (Agreements in the framework of World Trade Organization. The article speaks of specific approach of Latin American countries to the issues in question.

Keywords: economic integration, unification of law, international agreements, Bustamante Code, Andean Code of Investments.

DOI: 10.12737/21260

Adobe pdf 24  Download

FEDERAL STATE CLAUSE, TERRITORIAL UNITS CLAUSE AND FEDERAL RESERVATION — THE WAYS TO LIMIT INTERNATIONAL TREATY OBLIGATIONS  Pdf 16

B. I. OSMININ

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federations, candidate of legal sciences, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: mp3@izak.ru

Federal states may encounter difficulties in applying international treaties on matters constitutionally committed to their constituent units. In such cases a federal state may not be able to join the treaty without some accommodation either by its constituent units or other parties to the treaty. There are certain methods by which these problems can be reduced: federal state clauses, territorial units clauses, and federalism reservations. Some treaties may include a federal state clause to the effect that limits the scope of treaty’s obligations to those that federal state’s government has constitutional authority to assume. Another solution is to include a territorial units clause where the treaty may apply to some of a state’s constituent units but not others. Several federal states have made reservations to limit their obligations to those areas of legislative jurisdiction that the federal government has assumed. On occasion, other states have objected to such reservations. Alternatively, a federal state may issue a federal declaration to explain how federalism affects its implementation of the treaty. Unitary states tend to resist the federal state clause and the territorial units clause because they create an imbalance between rights and obligations of the contracting federal and unitary states. Although such clauses are not popular with unitary states, they do make it that much easier for federations to become parties. Such clauses are a compromise between the interest of unitary and federal states. Domestic law provides no excuse for a failure to fully implement international treaty obligations. In international law, if the constituent units fail to comply, it is the federal government that is liable for the failure to properly implement the treaty.

Keywords: federal state clause, territorial units clause, federalism reservation, federalism understanding, federal declaration, federal state, federal government, constituent units, unitary state, international treaty obligations.

DOI: 10.12737/21261

Adobe pdf 24  Download

FEATURES OF LABOUR REGULATION OF EMPLOYEES IN STATE CORPORATIONS, STATE COMPANIES UNDER RUSSIAN LAW AS A MEASURE OF COUNTERACTION OF CORRUPTION  Pdf 16

L. A. LOMAKINA

senior research fellow of the labour and social security legislation department 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: labour@izak.ru

The article considers the peculiarities of regulation of labor of employees in state corporations, state companies according to the Russian legislation and from the perspectives of harmonization of national law with European law. The inclusion of the code of legal rules governing the employees of state corporations, state companies is a fundamentally new element in the sphere of labor relations. The employees occupying positions in state corporations and state companies on the basis of the employment contract shall comply with the characteristics due to their legal status, prohibitions and obligations established to be observed by the persons occupying positions in Federal state service. The rules required for the activity of state corporations, state companies, established by the Russian Federation to perform the tasks are assigned to Federal government agencies.

Keywords: conflict of interest, peculiarities of labor regulation of employees of state corporations, state companies as measures aimed at fight against corruption, harmonization of national legislation with European law, personal interest of an employee, list of restrictions, prohibitions for employees working under an employment contract in state corporations, state companies.

DOI: 10.12737/21262

Adobe pdf 24  Download

RUSSIAN WATER FUND AS AN INTEGRATED OBJECT OF LEGAL RELATIONSHIPS  Pdf 16

D. O. SIVAKOV

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: ecology@izak.ru

The author reveals key terms of water law — water fund and water objects in context of various relationships. The author discloses correlation of these terms with the concepts of real estate, watersectoral complex; understands said terms through the prism of state surveillance, account and zoning of water fund. Water objects of common usage are also inspected by the author. The following methods of scientific research are used: historic retrospective, comparative analyze and extrapolation. Experience of EU, CIS and other countries is taken into account. The article exposes the views and breakthrough ideas of leading scientists of modern jurisprudence (T. Y. Khabrieva, Yu. A. Tikhomirov, M. M. Brinchuk, S. A. Bogolyubov, O. S. Kolbasov, O. I. Krassov), some representatives of the natural sciences and mass media. Russian water fund is not only a basis of water sector, but also is a permanent basis of all economy. Degradation of quality and reduction of quantity of water resources inevitably would harm the wellbeing of the Russian society. Norms of Soviet and Russian legislation are presented by the author in a critical manner. The author inspects the classification of water objects, which is important for the state water fund. As it is stated in article 5 of Russian Water Code, depending on the features of the regime, geographical, morphometric and other features, water objects have complicated gradation. For the purposes of this article, first of all it is important to divide the surface and underground water objects. According to the article 5 of Russian Water Code, the term “surface water object” includes not only water masses, but also covered land within the coastline. These are the necessary features of surface water objects — connection of land and water. In this regard, a difficult question is attended to as of whether the surface water objects have in their structure real estate.

Keywords: water objects, reservoirs, water fund, state subsoil fund, underground water objects, funds of natural resources, real estate, state water register, water monitoring, water relationships, coastal line of common usage, water usage contracts, schemes of complex usage and protection of water objects, river basins, watersectoral areas, hydrographic zoning, Russian water Strategy.

DOI: 10.12737/21263

Adobe pdf 24  Download

LEGAL ASPECTS OF PROTECTION AND RATIONAL USE OF LANDS IN THE REPUBLIC OF TAJIKISTAN  Pdf 16

A. Sh. AZIMZODA

director of Centre for implementation of the project for registration and cadaster land system
4/1, Abay st., Dushanbe, Republic of Tajikistan
E-mail: azimov@fazo.tj

The article focuses on the legal aspects underlying protection and rational use of lands in the Republic of Tajikistan. Subject to analysis are ways of perfection of legal instruments with a view to protection and rational use of lands. The author describes the dehkan (farmer) state of affairs as characterized by the existence of small plots of land which were inefficient in terms of their use and economy. In order to do away with such a situation the legislators of the Republic of Tajikistan suggested to set the minimum size of land plots to be allocated for agricultural purposes. Sanction alone would not prevent irrational land use and adverse affects thereof. For, the objective of rational use and protection of land can be achieved through economic incentives of farmersstakeholders. Particularly, to get the land users interested in exploitation of unused land and make them willing to invest into agricultural development of said lands they should be given these plots and be freed from taxes for the period of first few years.

Keywords: protection and rational use of land, legislation, administrative offense, withdrawal of land plots.

DOI: 10.12737/21264

Adobe pdf 24  Download

LAW ENFORCEMENT AS THE CEMTRAL POINT IN ESTABLISHING AN ELECTRONIC STATE: CHALLENGES OF “NEW REALITIES”  Pdf 16

N. N. CHERNOGOR, Yu. N. KASHEVAROVA,  A. A. GOLOVINA, A. A. STRATYUK

N. N. CHERNOGOR, head of the chair of state and law disciplines of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor
Yu. N. KASHEVAROVA, head of the educational center of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
A. A. GOLOVINA, research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
A. A. STRATYUK, undergraduate 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: school@izak.ru

The currently ongoing information revolution has become one of the most significant perquisites for the formation of a new legal order — “new realities”, characterized by the formation of “electronic state“. The challenges of this “new reality” make search for science-based solutions ever more topical, including the means and methods and technologies for legal regulation with regard to public relationships. An attempt to look for said mechanisms was undertaken by the participants of the XI International School for young scholars — jurists “Effective law enforcement: doctrine and practice”. It was held at the Institute of Legislation and Comparative law under the Government of the Russian Federation on May 27, 2016. One of the sections of said School was dedicated to “Law enforcement in the light of formation of electronic state“. The article contains summary of the discussions and the outcomes.

Keywords: information society, information law, information technologies, crypto currency, law enforcement, electronic democracy, electronic state, electronic government, electronic justice, electronic parliament.

DOI: 10.12737/21265

Adobe pdf 24  Download

NATIONAL AND INTERNATIONAL LAW: OVERCOMING COLLISIONS (OVERVIEW OF THE ANNUAL CONFERENCE OF POST GRADUATES AND YOUNG SCIENTISTS OF THE INSTITUTE OF LEGISLATION AND COMPARATIVE LAW UNDER THE GOVERNMENT OF THE RUSSIAN FEDERATION)  Pdf 16

М. А. BOCHARNIKOVA

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

Overview of the Annual Conference of post graduates and young scientists of the Institute of Legislation and Comparative Law under the Government of the Russian Federation.

DOI: 10.12737/21266

Adobe pdf 24  Download

Archive of issues

2019
2018
2017
2016
2015
2014
2013
2012