Contents # 6/2016

THE TASK OF LEGAL SCIENCE AND HOW TO PERFORM IT (in English)  Pdf 16

Ole HASSELBALCH

doctor of law, professor (em.) at the Aarhus University (the Kingdom of Denmark)
Nordre Ringgade 1, 8000 Aarhus C
E-mail: ole.hasselbalch@mail.dk

In the presented article there is the author’s opinion of how the legal science should function and what its subject is. Also the attitude is explained towards the proper methods and ways of legal scientific researching activity in the article. The author supposes these two items to be the most and vitally important for gaining the objectiveness and fruitful results of such kind of the mental activity. The author also thinks that during the recent times the imaginations, including the scientific ones, of the social aim of the legal science and law have been broken and have become false. It means that the influence of law on the society and on the relationship among the individuals is not proper now and law does not perfect them. It also means that, due to the above said, the results of the scientific research of law are not always objective nowadays and they do not reflect the reality. As an example the author demonstrates the outcome of the Scandinavian countries legal systems functioning. These results are positive thanks to the fact that the mentioned legal systems are aimed at the social prosperity and at providing the high standards of living, because the Scandinavian law are traditionally tightly connected with social targets of the northern European countries inhabitants. The author persists on his viewpoint that the success of law - making process completely depends upon the participation of the majority of the inhabitants in it. It might be realized through organizing and holding the referendums, talks between the authorities and the inhabitants, through the activity of the civil society institutions. Then the author formulates his recommendations of how to deal with scientific research in law, how to carry out it and how to work out the positive results of it through using them by both the beginners and by the experienced professionals. He tries to avoid the legal scholars’ false and mistaken methods of scientific research. Basing his recommendations on his own positive scientific legal research experience, the author of the article describes, explains and underlines the concrete positive and proper ways of researching, leading to the fundamental discovers in law.

Keywords: legal science, tasks, legal scholars, methods of legal study (research), substance matter of study, legislation, acts of parliament, valid law, approach, analysis, independence.

DOI: 10.12737/23429

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THE FORM OF OWNERSHIP IN THE MODERN CONSTITUTIONAL ECONOMIC MODEL  Pdf 16

V. D. MAZAEV

professor of the National Research University “Higher School of Economics”, doctor of legal sciences, professor
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: vmazaev@mail.ru

23 years have passed since the adoption of the Constitution of the Russian Federation in 1993, but the question of the place and the role of the category of constitutional forms of ownership remains debatable. The article discusses the purpose of the form of ownership in the constitutional regulation of economic relations, an analysis of the main approaches to the evaluation of the legal significance of this category, argues that a formal stance on ownership’s nature gives a distorted view of the methods of legal influence on the economy. Despite the denial of the form of ownership’s ideological aspects in modern democratic constitutions this category has social elements. It is shown that an assessment of the constitutional form of ownership should be carried out by economic and social and legal aspects. Based on the texts of various states’ constitutions the analysis of the basic dimensions of the form of property exercise is undertaken, including also other aspects such as promoting advanced management methods, provisioning traditional economic structures and protecting particularly important property. The article demonstrates the interconnection of the constitutional form of ownership with organizational-legal forms of business. In this connection the nature and the purpose of the private and public forms of ownership are taken into account. Otherwise it is difficult to mark the necessary boundaries and ways of state participation in the economy. The conclusion defines that the constitutional ownership is an essential tool for building the optimal model of economy by means of supporting the most promising and traditional ways of economic management.

Keywords: ownership form, constitution, economic model, ways of economic managing.

DOI: 10.12737/23442

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LAW-MAKING OF THE PRESIDENT OF THE UNITED STATES OF AMERICA IN COMPARISON WITH CERTAIN ASPECTS OF PRESIDENTIAL LAW-MAKING IN THE RUSSIAN FEDERATION  Pdf 16

A. V. VANKOV

legal counsel of the “TransneftElectrosetService”, LLC
105, Petropavlovskaya st., Perm, Russia, 614068
E-mail: vankov@legal.perm.ru

The article is primarily aimed at the types of presidential actions in the United States of America. The author considers various types of actions issued by the President of the United States and categorizes those actions by their form, including executive orders, proclamations, administrative orders, presidential memoranda, determinations, notices, reorganization plans, etc. Particularly the article is focused on executive orders of the American head of executive branch as they are the most significant regulations. In addition, the article touches upon the types of regulations issued by the President of the Russian Federation apart from decrees and orders, such as instructions and directives. This paper contains comparative legal study based on contemporary legislative material from two substantially different legal systems, offers grounds for legitimacy and admissibility of broad presidential rulemaking powers including issuing of regulations which types or forms are not directly specified in the constitution, explores the nature of instructions of the Russian President. However, the author advocates the idea that presidential administrative actions should not be considered as non-legal actions, and issuing by this officer regulations, including those which types are not defined by a constitution, could only be done in case those regulations comply with the laws.

Keywords: decree, executive order, proclamation, ordinance-making powers, presidential instructions.

DOI: 10.12737/23447

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DEVELOPMENT OF THE LEGAL FRAMEWORK OF PARLIAMENTARY CONTROL IN UZBEKISTAN: THE SUBSTANTIVE PROVISIONS OF THE LAW “ON PARLIAMENTARY CONTROL”  Pdf 16

R. R. HAKIMOV

deputy of the Legislative Chamber of Oliy Majlis of the Republic of Uzbekistan, candidate of legal sciences, associate professor
1, Bunedkor ave., Tashkent, Uzbekistan, 100035
E-mail: r.hakimov@parliament.gov.uz

The article is devoted to the development of the constitutional and legal framework of parliamentary control in Uzbekistan. It provides an analysis, carried out during the years of independence, of large-scale, successive reforms aimed at strengthening the role, authority and control functions of the Parliament — the Oliy Majlis of the Republic of Uzbekistan. Particular attention is paid to the disclosure of the nature and the content of the Law “Оn parliamentary control” adopted in 2016. Separately, the issues concerning the subject structure of legal relations in the sphere of parliamentary control, the object of parliamentary control, the permissibility and the limits of parliamentary control, its forms, as well as measures taken by the parliamentary response by the results of the control measures are considered. The author made an attempt to justify the provisions of the Law of the Republic of Uzbekistan “On parliamentary control” scientifically and theoretically, identified a number of issues that require scientific and practical discussion and profound scientific and theoretical study.

Keywords: the principle of separation of powers, checks and balances, democracy, legislature, executive power, parliamentary control, constitutional reforms, strengthening the role and controlling powers of Parliament, subjects of parliamentary control, objects of parliamentary control, forms of parliamentary control, limits of parliamentary control, response measures at the end of the parliamentary control.

DOI: 10.12737/23454

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THE CONSTITUTIONAL CHARACTERISTICS OF THE STATUS OF THE BRITISH ANTARCTIC TERRITORY AS A SECTOR OF ANTARCTICA AND THE SUBJECT OF PARTNERSHIP WITH THE KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND  Pdf 16

I. V. IRKHIN

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

The article emphases that the current period of legal vacuum in the form of “freezing” the territorial claims of states in Antarctica, including the British Antarctic Territory, is not an unconditional guarantee means to prevent the international communication subjects’ claiming for the future sovereign and “quasi-sovereign” standing to the Antarctica and its regions with the formalization of the public authorities’ respective powers in the national legislation. The author also emphases on the relevance of improving the Antarctic’s international-legal regime. This includes the detail of unification and standardization of responsibility mechanisms for violation of the existing legal acts’ provisions that determines the procedure and conditions for international cooperation on this continent. It is proposed to consider the validity and appropriateness of the Antarctic Treaty 1959 regulations on consolidation opportunities of previously asserted rights of Contracting Parties or their claims to territorial sovereignty in Antarctica. The author believes that the rule of this legal act generates the problem of uncertainty of the States sovereign rights over the continent and its particular parts. The article also brings an argument that position on the lack of validity of the relations qualification between Britain and the British Antarctic Territory as a partnership and as the management of overseas territory are carried out directly and exclusively by the British authorities in the person of Commissioner, there is no “local” institutions of public authority and no permanent population. In addition, the category of the Kingdom’s sovereignty, which is the basic qualification under the partnership, excludes the independence of the Overseas Territories as it absorbs partnerships leveling its qualitative characteristics. The author analyzes features of the constitutional status of the Commissioner as a representative of the British Crown. It is necessary to bring the provisions of the Order of the British Antarctic Territory 1989 in line with the Antarctic Treaty 1959.

Keywords: United Kingdom, Overseas Territories, British Antarctic Territory, Order, constitutional status of the commissioner, partnership, British monarch.

DOI: 10.12737/23461

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CONSTITUTIONAL REGULATION OF LAND MATTERS IN FOREIGN COUNTRIES  Pdf 16

N. N. AVERYANOVA

associate professor of the chair of constitutional and municipal law of the juridical faculty of the Chernyshevsky Saratov National Research State University, candidate of legal sciences, associate professor
83, Astrakhanskaya st., Saratov, Russia, 410012
E-mail: AveryanovaNN@mail.ru

The article analyzes the constitutional law of foreign countries that regulates land matters. The author attempts to systematize the constitutional acts of foreign countries on basis of consolidation and assurance of property rights as a basic phenomenon by means of defining the land and legal structures of a country. Thus foreign countries unite in groups in accordance with the constitutional rules governing land relations and on this basis certain patterns of land-legal system form. There are five models of Land constitutional law in foreign countries. These models combine “a socialist camp” countries and countries in transition from socialism to a market economy, Latin American states which, at this stage of history, are characterized by the transition from the feudal approach of managing the capitalism, developed countries with relatively stable legal traditions and systems and Islamic countries. The article also analyzes historical background of consolidation of land matters in constitutions of other countries and determines the vector of land and legal development of states related to certain models of land and legal system. The conclusion justifies comprehensively the land and economic relations that are the basis of the land-legal system of the state and they should be fixed at the level of Basic Law.

Keywords: constitutions of foreign countries, land ownership, land and legal structure of the country, socio-economic system, pattern of constitutional land law foreign states.

DOI: 10.12737/23467

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FORMS AND METHODS OF CONFLICT OF INTEREST ON THE LAW OF THE RUSSIAN FEDERATION AND FOREIGN COUNTRIES  Pdf 16

A. F. NOZDRACHEV, A. S. AVTONOMOV

A. F. NOZDRACHEV, head of the department of administrative legislation and procedure 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: adm1@izak.ru

A. S. AVTONOMOV, head of the department of foreign constitutional, administrative, criminal legislation 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 conceptual framework system of public administration instills increasingly in terms of actual meaning towards the concept of “conflict of interest” as one of the most important legal means to combat corruption. The article examines the forms and methods of conflict of interests. The authors argue that the primary duty of a person, who sits in for an office that involves the obligation to take measures to prevent and resolve conflicts of interest (the side of conflict of interest), is to notify the representative employer about a risen conflict of interest or the possibility of its occurrence. These persons should carry out their state and official activities in a way to anticipate the risks of conflict of interest and to do it as efficiently as possible to try to “manage conflicts” that may arise. The article substantiates the need to clarify the notice forms of conflict of interests. Along with the assignment of certificates of income, property and property obligations it is suitable to assign a declaration of private interests to the employer representative taking into account the experience of these types of notices in foreign countries. The article analyzes in detail the powers of the representative of employer to prevent and resolve conflicts of interest, including the obligation to inform the person who is a party to the conflict of interests, the existence of dangerous conflict situation and the inadmissibility of certain actions. Preventing or resolving conflicts of interest by the employer representative may consist of: a change in the official position or status of the person who is a party to the conflict of interest; his removal, rejection or disqualification of the notice and other processes for resolving conflicts of interests. The authors propose further improvement of prevention methods and conflict of interests’ settlement based on the foreign countries experience.

Keywords: conflict of interests, party duties in conflict of interests, conflict of interests’ notice, a declaration of private interests; prevention and settlement of conflicts of interests, representative of the employer, commission to comply with the requirements for official conduct of civil servants.

DOI: 10.12737/23469

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AN INFORMATION INTERMEDIARY IN RUSSIAN LAW  Pdf 16

L. K. TERESHCHENKO, O. I. TIUNOV

L. K. TERESHCHENKO, deputy head of the administrative legislation and procedure department 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: adm1@izak.ru

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

Three years ago was adopted Federal Law No. 187 from 02.07.2013 “Amending of certain legislative acts regarding protection of intellectual property rights in information and telecommunications networks”. The article analyzes the concept of information intermediary and its coherence with other participants of the information relationships in the Internet taking into account that the term is not defined in legislation. The article researches three groups of subjects (distinguished depending on their activities) taking into account already existing in this sphere subjects. The author takes an attempt to answer a question: who can be an information intermediary and whether the same information intermediary could belong to all these three groups.

Keywords: information intermediary, hosting provider, search engine, site administrator, site, intellectual property, World Wide Web.

DOI: 10.12737/23470

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THE LEGAL REGULATION OF ADMINISTRATIVE AND LEGAL REGIMES IN THE MEMBER STATES OF THE EURASIAN ECONOMIC UNION  Pdf 16

A. V. KALMYKOVA

senior research fellow of the department of administrative legislation and procedure of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: adm1@izak.ru

The article is devoted to еру comparative legal analysis of the legislation in the Member States of the Eurasian Economic Union regard to the regulation of administrative and legal regimes. It examines the types of administrative and legal regimes, the specific methods of state regulation of the introduction of administrative and regulatory regimes as well as the restrictions imposed on members of regulated relations. The article also analyzes the common and distinctive features of the administrative and legal regimes in the Member States of the Eurasian Economic Union. The author proceeds from the fact that the grounds for the establishment of administrative and legal regimes in the Member States of the Eurasian Economic Union are requirements relating to safety as the result of social conflicts (causes) and the causes of natural, technological and biological nature as well as due to the necessity of establishing a special kind of regulation. This task is even more actualized in terms of scientific and technological development, the creation of fundamentally new technologies and industries, and the growth of morbidity and mortality because of influence of harmful environmental factors, progressive economic crisis, general increase of paces and intensity of economic, political and social life.

Keywords: administrative-legal regime, the Eurasian Economic Union, a state of emergency, the law of the Member States EAEC, free economic zones, the passport and visa regime, military status, restrictions, prohibitions, economic administrativo legal regimes permission.

DOI: 10.12737/23472

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FINANCIAL DEVELOPMENT AND SUPPORT OF INDUSTRIAL SECTOR IN THE USA  Pdf 16

O. A. AKOPYAN

senior research fellow of the department of 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

The subject of the research is the issues and trends of state regulation of the industrial sector of the USA economy. Particular attention is paid to the changes and trends of financial regulation, the establishment of new institutions, promoting industrial development. This article describes a number of new programs and approaches to the regulation of the named sphere. It describes the practice of limited access of foreign investors to the USA strategic industrial sector in order to ensure national security. The methodological basis of the study is the dialectical method of scientific knowledge as well as the general scientific and special methods: system-structural, comparative law, logic, observation, description, statistics. Also documentary method of analysis, abstraction and generalization method are used. An important trend in the regulation of the industrial sector in the USA is to move from the period of progressive liberalization, based on the theory of self-regulating markets that can come into equilibrium and provide exceptionally efficient allocation of resources with minimal interference from the state, to the realization of the need of restrictions of market freedom due to the expansion of powers regulatory authorities.

Keywords: industrial sector, development, industry, finance, investment, reform, government regulation, security, the United States.

DOI: 10.12737/23473

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PUBLIC AND NON-PUBLIC COMPANIES IN THE LAW OF RUSSIA AND SOME FOREIGN COUNTRIES  Pdf 16

A. V. GABOV, M. V. KRASILNIKOV, T. S. BOYKO

A. V. GABOV, deputy director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: gabov@izak.ru

M. V. KRASILNIKOV, attorney-at-law of Mosсow BAR Association
1/7, Kutuzovsky ave., Moscow, Russia, 121248
E-mail: info@mk-law.ru

T. S. BOYKO, senior lawyer of the law offices “Egorov, Puginsky, Afanasiev & Partners”, councel
40/5, Bolshaya Ordynka st., Moscow, Russia, 119017
E-mail: tatyana_boyko@epam.ru

The classification of business entities into public and non-public in the Russian law provides a reason to seek from the world experience in order to highlight the similarities and further development of regulatory pathways of the above-noted institute. The goal set is achieved by comparing the attributes of a public company in the legislation of some countries. In particular, on the example of the UK and the USA it is established the difference between public and private companies. There is marked a combination of two trends: imperative regulation of public companies, along with the freedom of the creation and operation of private companies. The article describes the approach to the definition of the status of a public company, adopted in Eastern Europe, which is different from that in the UK, studies law in certain countries strongly influenced by English law. Along with the detailed characteristics of the Russian model of public (non-public) companies its difference from the typical Anglo-Saxon model is revealed. The presence (absence) of division into public (private) companies does not evidence the proper and (or) inadequate level of a legal system in this aspect, but simply reflects the model of regulation of the market in a particular country. The authors criticize different interpretation of the term “publicity” by legislators in the case of public (non-public) companies.

Keywords: сomparative corporate law, public and private companies, mandatory regulation, optionality, market regulation models.

DOI: 10.12737/23474

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LEGAL REGULATION OF FOREIGN ECONOMIC RELATIONS WITHIN THE EURASIAN ECONOMIC UNION  Pdf 16

M. P. SHESTAKOVA

leading research fellow of private international 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: pil@izak.ru

The article deals with the problems of improving the legislation governing foreign trade relations between business entities of member countries of the Eurasian Economic Union (EAEU). It is noted that close economic interaction between states in the post-Soviet space is a prerequisite for the successful development of production and scientific and technological potential of these countries. Formed in 2014 the Eurasian Economic Union is a new integration association characterized by a deep degree of international integration which implies among others the expansion of foreign trade cooperation of its member countries. The successful solution of the tasks depends largely on the legal groundwork for relations within the Union. The author suggests developing local act of unification — the international treaty governing foreign trade relations between the economic entities in the domestic market of the EAEU using the international experience of creating a uniform legal regulation of the international sale of goods as an example. It is noted that the adoption of the act will create a uniform legal regime and equal guarantees for all participants of the economic relations.

Keywords: Eurasian Economic Union, international economic integration, unification, contract for the international sale of goods.

DOI: 10.12737/23475

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THE FORMATION OF A SYSTEM OF ALTERNATIVE DISPUTE RESOLUTION MECHANISMS IN SERBIA  Pdf 16

V. P. SHRAM

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

The article is devoted to the analysis of the formation of a system of alternative dispute resolution mechanisms in Serbia as one of the instruments stimulating the development of entrepreneurship and combating corruption. The author considers such nonjudicial legitimate methods of dispute resolution as negotiations of the parties, mediation, arbitration (binding arbitration) and the court of honor at the Economic chamber of Serbia, as well as other conciliation procedures. One of the main characteristic by which non-judicial methods of dispute resolution can be classified is the participation in them of third parties. The Serbian law relates to them participation of mediators in the reconciliation procedures, ombudsmen, state rights activists (authorized to protect the rights and interests of the state), judges, lawyers. Special attention is paid to mediation as a set of voluntary modes of settlement of the conflicting parties with the participation of third parties. The mediation is conducted on the good will of the conflicting parties by the mediator who seeks to resolve disputes through a settlement agreement. Under the law mediation can be realized by mediators, ombudsmen, state rights activists (authorized to protect the rights and interests of the state) who are trained by judges and lawyers. The article discusses the mechanism of pre-trial dispute settlement between the conflicting parties. Special attention is paid to the analysis of pre-trial settlement of disputes between parents of minor children decided to divorce. In Serbia an important role in the formation of alternative dispute resolution mechanisms of economic entities plays a chamber of Commerce of Serbia under which exists the court of honor and court of arbitration. Their competence includes the resolution of disputes through mediation.

Keywords: alternative dispute resolution, mediation, principles of mediation, conciliation, Ombudsman, state rights activists, chamber of Commerce, court of honor, court of arbitration, code of business conduct, corporate governance code.

DOI: 10.12737/23477

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HIDDEN RENVOI AS AN EFFECTIVE INSTITUTE OF APPLICATION OF CONFLICT OF LAWS RULES IN GERMANY  Pdf 16

E. G. SHCHEKINA

postgraduate student of international private and civil law chair of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation, leading lawyer of the PJSC “NPC “UWC”
7/11, Novokuznetskaya st., Moscow, Russia, 115184
E-mail: eli-schyokina@yandex.ru

The paper considers the so called “hidden renvoi” in international private law, based on the comparative study of Russian and German literature and judicial practice. The purpose of this article is to identify hidden renvoi as an effective mechanism of application of conflict of law rules in order to state the applicable law. Hidden renvoi has never been studied specifically in Russian literature thus it can be said that the author introduces the term “hidden renvoi” for scientific usage in Russia. The author used the following general and specific scientific methods: logical method, analysis, comparative method, technical method, linguistic method etc. Hidden renvoi is a legal phenomenon that combines the aspects of civil procedure and conflict of laws rules: the applicable law is defined by court using the competence rules of foreign state. This mechanism can be applied and used in the judicial practice in Russia since it does not require any prior serious amendments to legislation. However, the ambiguousness and the disputable character of hidden renvoi determines the necessity of further study of this legal institute.

Keywords: International private law, renvoi, Anglo-American law, German law, conflict of laws.

DOI: 10.12737/23523

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INTERNATIONAL ORGANIZATIONS: ISSUES OF FUNDING OF THEIR ACTIVITY  Pdf 16

A. Ya. KAPUSTIN

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

A few very important features of financial law of international organizations were consider in present article. The author puts forward an idea that funding of international organizations activities is an important element of the international legal personality of international organizations, because it allows them to ensure the necessary independence while executing their international rights and obligations and the exercise of their assigned functions. The main categories of financial law of international organizations were examined in article: the concept and types of incomes and expenses, the concept of budget process of the international organization in accordance with two ways of funding of international organizations settled in the XX century. Special attention was paid to the analysis of the obligations of Member States of an international organization to contribute to the organization’s budget. For these purposes, the analysis of the positions of judges of the International Court of Justice and the opinions of scientists on this issue in the context of the proceedings on certain expenses of the United Nations. The author has come to conclusion about necessity of the further study of the problems of the financial law of international organizations.

Keywords: international intergovernmental organization (IGO), international supranational organization, funding of the international organization, incomes and expenses of international organizations, budget process of IGO, financial law, international organizations and national interests of Member States.

DOI: 10.12737/23524

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COMBATING CYBERCRIME IN FOREIGN COUNTRIES  Pdf 16

O. I. SEMYKINA

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: semykola@yandex.ru

Modern trends in Cybercrime in the criminal legislation of Russia and foreign countries are so multifaceted that sometimes it is difficult to distinguish between acts that directly violate information security, and invasions associated with computer technology in which the use of computer information systems is only one of the ways committing a crime. It is supported by the analytical material based on the study of criminal law engineered in the legislation of the UK, Australia, the USA, Germany and the CIS countries in view of the characteristic of illegal access to information technologies and (or) the misuse of information and telecommunication networks. Carried out in this article a comparative analyzes of the different criminal law as concentrated in one group, taking into account the identity of the object of the offence and “dissolved” in the structure of other criminal law provisions reveal the real “picture” of trends in the sphere of combating Cybercrime (against the constitutional rights and freedoms, property, area of economic activity, against public health and public morality, constitutional order and security of the state).

Keywords: combating, Cybercrime, computer crime, theft, fraud, misappropriation, embezzlement, computer information, information technology, information and telecommunications network, unauthorized access, modification information, block information.

DOI: 10.12737/23525

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THE ISSUES OF COMPETENCY ASSESSMENT OF JUDGES IN RUSSIAN AND FOREIGN LEGISLATION  Pdf 16

O. V. MAKAROVA

leading research fellow of the criminal, criminal procedure legislation; judicial system 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: Makov71@mail.ru

The theme of competency assessment rarely becomes the subject of special scientific research. The main focus in the legal literature is usually paid to the issues related to the status of a judge, the requirements for candidates for the post of judge, professionalism of the judges, etc. Meanwhile, this theme has a great research potential not only to consider the hierarchy of judicial positions in the system of courts of general jurisdiction, but also to develop the concept of a judge’s career, as well as to identify the problems associated with opportunities of a career and professional growth of the judge. The article proposes to consider the competency assessment of judges as an organizational and legal mechanism of motivation to quality fulfillment of their office duties, which contributes to their career growth. It is noted that when such mechanism for competency assessment of judges is set up, a delicate balance should be struck, allowing to assess professional knowledge and the results of the judicial activities of judges, without violating the guarantees of judicial independence. Taking stock of the current mechanism of competency assessment of judges the author reveals its main disadvantages, as well as comes to a conclusion that it is necessary to create a competency assessment procedure, which allows not only to evaluate the qualifications and professionalism of judges, but also in case of following its results to provide the career development.

Keywords: judge, court of general jurisdiction, competency assessment, organizational and legal mechanism, career, professionalism.

DOI: 10.12737/23526

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CO-RELATION OF FEDERAL AND PROVINCIAL LEGISLATION OF CANADA IN THE FIELD OF PROTECTION OF CHILDREN FROM DOMESTIC VIOLENCE  Pdf 16

L. S. CHERNUKHINA

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: larissa2007@ya.ru

The article deals with the issues of the delineation of authority between Federal legislative bodies and legislative bodies of the provinces and territories in the sphere of child protection from the domestic violence. The author analyzes the area of competence of the legislative bodies of mentioned levels, paying particular attention to their complementarity and possible conflicts between rules. In accordance with the Constitution of Canada the Federal, provincial and territorial governments have a shared responsibility for many aspects concerning the situation of children in society. However, criminalization of some unlawful acts, including the act of domestic violence, is an exclusive scope of jurisdiction of Federal agencies. On the basis of the analysis of the amendments to the criminal code of Canada the author comes to the conclusion that the Federal government is moving towards stricter sanctions for crimes related to domestic violence that target children. On the basis of detailed analysis of normative legal acts of the provinces and territories regulating social relations in the sphere of combating domestic violence and child protection the author concludes that the provincial laws on protection against domestic violence are intended to support and complement the Federal measures to protect victims of domestic violence under the criminal code of Canada. In general, provinces and territories have extensive regulatory framework in this area that allows to pursue a consistent policy aimed at improving the retaliatory measures against domestic violence, when the victims are children, as well as the maximum leveling of the consequences of such acts.

Keywords: domestic violence, victim, Canada, child protection, responsibility, crime.

DOI: 10.12737/23527

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LEGAL PROTECTION OF THE CRIME VICTIMS UNDER THE SWEDISH LAW OF XX—XXI CENTURIES (HISTORICAL AND LEGAL ANALYZE)  Pdf 16

S. P. ANDRUSENKO

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: barrister@cardio.ru

The present article analyzes the historical and legal issues of victims of crimes in Sweden. At the present stage of development of Swedish criminal law, the Institute of the rights of victims of crime in Sweden is one of the most developed. Criminal protection of victims of crimes in the Russian Federation attends relatively little attention. The history of formation of Institute of the rights of victims is a necessary foundation for the development of it in a modern Russian theory of law and legislation. The historical background of the Institute the rights of victims which has determined the contours of a modern understanding of the rights of victims, for example, was reflected in a Swedish law. Some elements of the criminal law concept of crime victims in Sweden, such as free legal assistance, certain elements of compensation (e.g., compensation for physical and moral damages) may be implemented in the domestic theory of law and legislation. International studies indicate that the level of victimization of the population of European countries, which show the number of actual victims of crimes, is at average of 16% of the total population. In this regard, the possibility of the reception of the Swedish legal doctrine devoted to the protection of victims of crime is of particular importance for the Russian theory of law.

Keywords: punishment, victim, compensation, harm, proportionality, social justice, retrospection.

DOI: 10.12737/23528

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PROCEDURE THE IMPLEMENTATION OF THE CONSTITUTIONAL PROCEEDINGS IN THE RUSSIAN FEDERATION AND IN THE REPUBLIC OF BELARUS  Pdf 16

E. S. GANICHEVA

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.ru23529

The article is devoted to the problems of development of legislation which determines the procedure of the constitutional proceedings, the procedural status and terms of participants’ activity in the Russian Federation and in the Republic of Belarus. Constitutional justice is a relatively new Institute in a legal system of Russia and other former Soviet republics. Conditions for its formation in the former Soviet Union have common as well as specific features. The comparison of the place and role of the constitutional court in system of public authorities and the procedural legal regulation of the constitutional justice is of obvious scientific and practical interest now because a clear, systematic regulation is very important for creating the conditions to allow objectively and comprehensively examine and resolve the constitutional conflict. Highlighting the characteristic features of the Federal constitutional law «On the constitutional Court of the Russian Federation» and the Law of the Republic of Belarus «On constitutional proceedings», the author comes to the conclusion about the necessity of development and specifying of the activity of the Constitutional Court of the Russian Federation by improving the using of traditional procedural-legal institutions taking into account the unique status of the highest judicial body of the constitutional control.

Keywords: constitutional court, constitutional jurisdiction, sources of regulation of the constitutional proceedings, justice, stage of the constitutional proceedings, procedural terms, participants of the constitutional proceedings, admissibility of constitutional complaints, examination appointment.

DOI: 10.12737/23529

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CONSIDERATION OF A CASE IN THE MERITS IN CRIMINAL PROCEDURE OF SWISS CONFEDERATION (part 2)  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

In the present article which is made of two parts the author analyses consideration of a case in the merits in Swiss criminal procedure, taking into account revised Criminal Procedural Code of Switzerland of 2007. The author has analyzed the stage of preliminary proceedings, the composition of court of first instance, the limits of the judicial proceedings, issues of the prosecutors’ refusal, oath procedures, the structural elements of the merits, role of the courts at this stage of the process, features of sentence as a judicial act and regulation of legal costs. The author has paid an attention to the fact that the court in a Swiss legal order is an active one and has a wide discretion on issues of evidence and and investigative actions. This approach is derived from the principle of objective truth, which is the basis of the Swiss penal process and the straightly enshrined in article 6 of the Criminal Procedure Code. These issues are discussed using comparative legal aspects, not excluding the Russian judiciary. A few recommendations for the improvement of the Criminal Procedural Code of Russia also were formulated in present article.

Keywords: Criminal Procedure Code, preliminary proceedings, case on the merits, sentence, legal costs.

DOI: 10.12737/23530

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