Contents # 2/2017

QUALITY IN JURISPRUDENCE (in English)  Pdf 16

Ole HASSELBALCH

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

In the article the author formulates the main tasks of the legal science. He describes and enumerates various aspects of the scientific activities in the sphere of jurisprudence. The author asks the questions of what the law is and who is personally responsible for the legal researching. Composing the answers to his own questions, the author underlines, that the unified approach to the understanding of law how it is and to the methods, forms, ways and facilities, used while undertaking legal exploring and studies, should be refused. Besides this the author makes a statement, that the objectivity of the legal science and its being in a great social demand are directly depended upon the common people`s participation in the law making process. The author makes a true conclusion, that law, as a social phenomenon and public regulator, is completely and fundamentally based on traditions, habits, customs, culture and tenor of social life, which is law creator. The Scandinavian countries are shown by the author as an above said example, providing the active participation of the common inhabitants in the law making procedures there. The author expresses his own viewpoint, concerning the realization of the conception, aimed at the democratic, social and legal state maintaining procedure. In the article it is shown, that it can be fulfilled only through the rational, reasonably self - sufficing and conscientious law making. Further on the author displays the arguments, providing the existence of the mutual dependence between the appropriately effected law making and the properly ensured state and social interactivity promotion. The article also presents the correlation between the different and various criteria, implemented for the public law research and for the private law studies. Then the author makes a reader pay attention to the necessity to elaborate a real rank and a succession of the undertaken legal scientific research ventures in the sphere of law, in order to learn a human being first and only then to study a society but not on the contrary. At the same time it is very important to determine a subject, an object, the matter, the tasks, the goals, the facilities, a method and a way of scientific analytic research in learning law. It is also mentioned, that it is of a vital importance how to correlate and to consider the difference between the status and the development of legal theory on one hand and the legal practice on the other hand. The author is sure, that nowadays the convergence of the democratic and the autocratic methods, facilities, forms and ways of state governing should become one of the most substantial matters of the scientific research in the field of law. The author is persisting on his proposal of the obligatory usage of the potential of the other, contiguous to the legal one, adjacent sciences in order to obtain the most magnificent effect on the way to understanding law. At the very end of the article, while installing his inferences, the author describes his recommendations, targeted at the perfection of the scientific legal research activity quality, at the professional legal application level heightening and at the provision of the scholars` and of the legal practitioners` choice of the most optimal ways of approbation the results of the scientific research ventures, obtained by them. Particularly the author suggests promulgating these results done in the concrete determined forms, such as: through incorporating them into the process of teaching at the legal high schools, by a thorough selection of the informational resources for scientific analysis, by elaborating the criteria of the scientific research activities’ quality estimation and by combining the usage of the normative and functional approach to understanding the destination and the role of law.

Keywords: quality, jurisprudence, science, scholar, law, functional, approach, studies, experience, task, society, manifestation, concept, model, knowledge, source, substance matter, evaluation, criteria, result, independence, creativity, terminology, references, presentation.

DOI: 10.12737/article_58ec9f58421241.74820842

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REVISITING THE CONCEPT OF “COMPARATIVE LAW”  Pdf 16

A. V. EGOROV

rector of Masherov Vitebsk State University, candidate of legal sciences, associate professor, corresponding member of the International Academy of Comparative Law
33, Moskovsky ave., Vitebsk, Belarus, 210038
E-mail: egorof@yandex.ru

The article analyzes one of the main categories of comparative jurisprudence - “comparative law”. The alternative to the general legal theoretical science approach to consider comparative law as the doctrinal part of comparative law has been offered. The article analyzes Western and Russian approaches to the definition of the terms “comparative law” and “comparative jurisprudence”. The term “comparative law” is analyzed from the point of general legal methodology. The concept “comparative jurisprudence” has a broader content and together with methodological part of comparative legal science includes the components of both scientific and educational character. The author pays attention to the absence of normative content in the understanding of the term “comparative law” indicating exceptionally doctrinal legal nature of this phenomenon. The inner structure of comparative law depends on the system of formation and interaction of the objects of comparative jurisprudence. It is mentioned that this approach does not contradict in principle to the true opinion concerning the division of the whole comparative jurisprudence into general and special parts. The author emphasizes the necessity of the complex use of the terms “comparative law” and “comparative jurisprudence”. The necessity of formation of new category of comparative legal science - the “universal theory of law”, which has a supranational character has been proved. The scientific and educational approaches for distinguishing the concepts “comparative law” and “comparative jurisprudence” have been analyzed.

Keywords: comparative law, comparative jurisprudence, legal comparativistics, universal theory of law, doctrine, objects of comparative law.

DOI: 10.12737/article_58ec9f5844ccb8.60659374

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AMERICAN AND EUROPEAN CODES OF LAWS AND REGULATIONS: A COMPARATIVE REVIEW  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 observes various points of view related to the United States Code (U.S.C.) and the Code of Federal Regulations (CFR). The U.S.C. consists of statutory law and the CFR - regulations issued by the US executive government agencies. The legal nature of these codes is often unclear for European lawyers and legal scientists. For instance, French legal doctrine (René David, Rémy Cabrillac) deems these American codes as not the codes in European sense at all. They see these codes as elegant compilations, alphabetically organized in order to classify and arrange American sources in the framework of some wide areas. This point of view, which undoubtedly has its rational roots, oversimplifies the nature of the U.S.C. and the CFR. Professor Arthur Taylor von Mehren has a partly different opinion. He estimates some parts of the U.S.C. (like the Internal Revenue Code) as provisions that have more coherent structure and principal significance in the respective areas. Analysis of the U.S.C. and the CFR themselves gives more plain understanding of differences and similarities between American and European codes. American codes, definitely, are not equal to European ones, since they generally do not have completeness of European codes and does not serve as the primary source of law. However, the article argues that by analyzing American codes we can see that they have not only alphabetically organized content. The U.S.C., for example, has general provisions, many parts and chapters of the code contains their own general provisions and lists of definitions, the text of many parts or chapters often has coherence that we expect from usual European codes (e.g. in accordance with description of a procedure). Moreover, half of the titles of the U.S.C. are enacted as codified laws. This codification is technically identical to what we call as codification in European sense, because the procedure of that codification involves rearranging the legislation, removing obsolete provisions, rewriting texts, etc. Only the other half of the code can be characterized as a compilation made by non-legislative body. The CFR has, to some extent, different structure, but it is also can be viewed mostly as a codification.

Keywords: codification, codes, arrangement of legislation, foreign legislation, American law, French law.

DOI: 10.12737/article_58ec9f5849a033.00136160

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CURRENT ISSUES OF INTERPRETATION AND IMPLEMENTATION OF THE THEORY OF SEPARATION OF POWERS IN THE USA AND RUSSIA  Pdf 16

A. V. STROKAN

research assistant of professor William Pomeranz, Kennan Institute, Woodrow Wilson Center, Washington, D. C., USA
1, Polikarpov alley, St. Petersburg, Russia, 197341
E-mail: alstrokine@gmail.com

Fundamental bases of modern democracies can be traced back to the ideas of prominent philosophers of XVII-XVIII centuries. One of such basic elements is the principle of separation of powers, which is firmly rooted in state institution design and became an indispensable aspect of any democratic regime. Differences of Montesque’s theory interpretation and its further implementation as the principle of separation of powers are considered in this article. The main focus of the article is not on the practical aspects of operation of governments but on analyzing the difference in genuine perception among people about the basic features of the principle in the United States (where separation of powers was implemented for the first time in history as a pivotal part of a new government) and in Russia (where the principle was included into state’s institutional structure more than 200 years later). Thenature of the power, a role and status of a head of state, historically inherited notion of “state power” in the Russian legal doctrine, - all these issues have been the key distinguishing factors of two diverse models of the principle of separation of powers and closely connected to its system of checks and balances in Russia and the United States. The US model tends to reflect a more classical type of the theory of separation of powers’ interpretation, while in Russia due to the Russian legal legacy the essence of the theory is considered in the context of the division of a single unified state power into three independent branches of power. Is it possible that one of the separation of powers models can be considered universal or every pattern is unique and effective in fact only within its own state system?

Keywords: separation of powers, system of checks and balances, US government, Russian government, branches of government, state power.

DOI: 10.12737/article_58ec9f589e45c7.94607571

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PLANNING OF THE LEGISLATIVE ACTIVITY AND ITS IMPORTANCE IN THE IMPROVEMENT OF LEGISLATION AND THE LEGISLATIVE PROCESS OF THE REPUBLIC OF KAZAKHSTAN  Pdf 16

Zh. U. TLEMBAEVA

deputy director of the Institute of Legislation of the Republic of Kazakhstan, candidate of legal sciences, associate professor
8, Orynbor st., Astana, Kazakhstan, 010000
E-mail: zhanna.ot@mail.ru

Some issues of lawmaking activity planning in the Republic of Kazakhstan as one of the important components of legislative activity are discussed, and its importance in improving legislation is analyzed in the article. The author pays special attention to the types and stages of the legislative process In the Republic of Kazakhstan. The main problems of planning the legislative activity of the Government and of other subjects of lawmaking are considered. Also the ways to improve the planning of lawmaking activity taking into account the current realities of the development of the legislative process in the Republic of Kazakhstan are proposed. Planning of legislative activities in Kazakhstan needs to be improved and, first of all, by means of increasing the information transparency of planning, the development of forecasting, improving the coordination of planning of subjects of the right of legislative initiative and the development of regulatory support for planning. The issues of application of technologies of legislative forecasting as an obligatory element of lawmaking are separately considered. The conclusion about the role of planning of lawmaking activity in counteraction to the processes of «shadow lobbying» is substantiated. It seems that the implementation of these proposals will ensure an increased role for planning in the country’s legislative process. In the context of the problems studied, the question of the legislative activity of the subjects of the legislative initiative and the subjects of lawmaking has considerable scientific and practical interest. The author reveals a tendency to reduce the lawmaking activity of the deputies of the Parliament against the backdrop of the growing legislative activity of the Government.

Keywords: planning legislative activities, legislative activity, the subjects of law-making, draft law, the concept of law, law.

DOI: 10.12737/article_58ec9f584bdc97.62344468

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THE DEVELOPMENT OF THE LEGISLATIVE PROCESS IN THE CONTEXT OF THE PARLIAMENTARISM FORMATION IN GERMANY, AUSTRIA, SWITZERLAND AND RUSSIA: A HISTORICAL AND LEGAL ESSAY  Pdf 16

D. N. KORDIK

assistant at the Department of administrative law of the Lomonosov Moscow State University, candidate of legal sciences
1, Leninskie gory, Moscow, Russia, 119991
E-mail: dumba139@gmail.com

The article explores the historical and legal aspects of the legislative process origin in a number of European federal states. In particular the features of the formation and development of parliamentarism and the legislative process in Russia, Germany, Austria and Switzerland are analyzed. It is noted that the legislative process in a democratic state is impossible without the existence of a higher representative legislative body. The emergence and development of the actual legislative process is connected with the beginning of the formation and functioning of the elected parliaments. The article considers the causes and prerequisites for the emergence of the parliamentarism in the abovementioned states and the main historical milestones of its development; it is shown how under the influence of public and political changes the procedures of the legislative process were transformed alongside with the subjects involved and their rights and duties. It is concluded that serious internal and external shocks forced to carry out radical changes in the state and political structures of these states, which affected the evolution of the legislative process. It is summarized that the majority of the currently existing institutions of the legislative process originated in the past and were conditioned by the historical development of each particular country.

Keywords: legislative process, rulemaking, lawmaking, parliamentarism, constitution, European federal states, historical and legal research, representative bodies.

DOI: 10.12737/article_58ec9f584df851.54636788

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FOREIGN EXPERIENCE OF THE SYSTEM OF PROTECTION OF PUBLIC ORDER AND PREVENTION OF OFFENSES IN LOCALITIES  Pdf 16

M. Z. ZIYADULLAYEV

head of the Higher academic courses of the Academy of Ministry of Internal Affairs of the Republic of Uzbekistan, candidate of legal sciences, associate professor
68, Intizor st., Tashkent, Uzbekistan, 100197
E-mail: oak213@inbox.uz

Each state proceeding from the administrative territory (locality) strives to ensure peace and tranquility, the rights and interests of citizens, public order and the prevention of violations. For this purposes different units were established in which the activities of police officers closely interact with the public. The article examines the foreign experience of the system of protection of public order and the prevention of violations in localities, in particular, public security stations and commissioners of police of the Russian Federation, German security services, sheriff units and sheriffs of the United States, police stations and points of Japan, as well as legal, organizational and personnel bases of activity of these divisions and their officials. The role of public organizations, in particular, the people’s volunteers, Cossack societies of the Russian Federation, associations of “older brothers and sisters”, “parents and teachers”, self-government committees (quarter committees), “points of contact with the police” of Japan in the protection of public order and prevention of offenses in these states and their interaction with the police are revealed in the article. Based on the study of foreign experience of the system of protection of public order and prevention of offenses in localities relevant suggestions are formulated for further improvement of the activity of law enforcement bodies.

Keywords: administrative territory, locality, maintenance of public order and security, prevention of offenses, interaction with the public, police precincts, commissioner of police, sheriff, police stations and posts, patrol and post service.

DOI: 10.12737/article_58ec9f58500dc0.49778903

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ISLAMIC FINANCIAL INSTRUMENTS AND LAW: APPLICATION OF THE SHARIA ISLAMIC LAWS BY THE COURTS OF ENGLAND AND THE UNITED ARAB EMIRATES  Pdf 16

V. D. FEDCHUK

lawyer, candidate of legal sciences, associate professor
24, Bolshaya Ochakovskay st., Moscow, Russia, 119361
E-mail: fedchuk_valerii@bk.ru

The total amounts of Islamic financial assets has grown exponentially lately and it is important that it has happened in conditions of the global financial crisis. An increasing number of Islamic finance instruments were adopted in the new IF centers of London and Dubai, including its financial “free zone”, the Dubai International Finance Centre (DIFC), while many of them contain choice-of-law clause (English and DIFC) and jurisdiction clause. Due to the fact that the proper law of a contract can be only the law of a country or a jurisdiction, neither the English nor the DIFC courts can apply Islamic Law norms directly but both can apply them indirectly when it is recognized as relevant. They have already on several occasions demonstrated their willingness to apply principles of Sharia Law especially in determining whether an instrument, concluded with excess of power by one of its parties because it is ribawi or it does not comply with Sharia Laws. Accordingly, the present article is mainly devoted to the analysis of the problem of indirect application of Sharia norms by English and DIFC courts which is particularly relevant in the areas of foreign trade contracts and groups of companies.

Keywords: Islamic financial instruments, Sharia norms, direct and indirect application of Sharia norms, incorporation of Sharia norms, justiciability, mitigatory steps.

DOI: 10.12737/article_58ec9f5852b3c4.95898071

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COMPARATIVE-LEGAL ANALYSIS OF ALTERNATIVE TAX DISPUTE RESOLUTION: THE PRACTICE OF THE RUSSIAN FEDERATION, THE UNITED STATES, THE NETHERLANDS AND GERMANY  Pdf 16

Е. A. TSVETKOVA

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: pasc2@izak.ru

The main trend of recent years is the complication of tax administration. In order to improve it states develop forms of work with taxpayers, including alternative tax dispute resolution. The author analyses alternative tax dispute resolution that have already developed in Russia and compares them with similar procedures in the United States, the Netherlands and Germany. To the alternative methods that are applied in Russia the author refers tax monitoring and agreement on the settlement of a tax dispute. Tax monitoring is not seen as a form of tax control, but as a mean of resolving and preventing the occurrence of a tax dispute. The conclusion of an agreement between a tax authority and a taxpayer on the settlement of a dispute in court is possible by reaching a compromise on the qualification of relations, on actual circumstances, on the interpretation of the tax rate. The article contains examples of programs that exist in the US and Germany in the sphere of tax dispute resolution. Also issues related to the implementation of the mediation procedure existing in the United States, the Netherlands and Germany and the possibility of their application in Russia are considered. The author emphasizes the impossibility of applying the procedure of mediation in tax disputes in Russia at the moment due to the lack of legislative regulation.

Keywords: tax dispute, alternative method, taxpayer, mediation, agreements.

DOI: 10.12737/article_58ec9f5854e2f3.36502980

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GOLD RESERVE: RUSSIAN AND FOREIGN PRACTICE OF FORMATION, STORAGE AND USE  Pdf 16

A. I. KUCHEROV

postgraduate student at the financial, tax and budget legislation department of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: canyoushoot3pt@gmail.com

The role of gold as a monetary metal in the development of any state is undoubtedly significant. Due to its natural characteristics the sphere of use of gold is extensive. Available at the disposal of mankind gold finds its application in jewelry, industry, medicine, as well as in the formation of the national gold reserves. The gold reserve of the state is a part of the international reserves, which is under the authority of the authorized state body and is represented by physical gold - ingots and coins (monetary gold). The gold reserve forms for strictly defined purposes stipulated by the corresponding regulation of any state. As a rule the purpose of their formation and use is to meet the urgent needs of the state, conditioned by extraordinary circumstances of a military, political and economic nature. In addition, significant amount of gold reserves indicate the reliability and solvency of the state. At the same time despite the significance of this part of the international reserves its amount in various states essentially differs. Some public orders perform a well-targeted disposal of the gold reserve. Thus, the trends in terms of the order of formation, storage, and use of the gold reserve, seen in a particular state, are different. We propose to consider the current world trends in this field in this article.

Keywords: gold reserve, gold, precious metal, international reserves.

DOI: 10.12737/article_58ec9f58571a88.20797165

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INCOTERMS 2010: CHANGES AND FEATURES OF APPLICATION IN INTERNATIONAL TRADE  Pdf 16

A. S. LOGINOVA, M. A. SINITSYNA

A. S. LOGINOVA, associate professor at the Department of constitutional and administrative law of the National Research University “Higher School of Economics”, master of economics, candidate of legal sciences
25/12, Bolshaya Pecherskaya st., Nizhny Novgorod, Russia, 603155
E-mail: aloginova@hse.ru

M. A. SINITSYNA, student at the law faculty of the National Research University “Higher School of Economics”
25/12, Bolshaya Pecherskaya st., Nizhny Novgorod, Russia, 603155
E-mail: masinitsyna3@gmail.com

Currently foreign trade transactions are instrumental in global economic cooperation. The proper formation and successful implementation of foreign trade contracts are certainly beneficial to the economic situation in the world. However, this process might pose certain difficulties to the participants of international trade which can be avoided if Incoterms 2010 are observed. The provisions of Incoterms 2010 are relevant and meet the requirements of foreign trade. While the Incoterms rules are characterized by amenity and usefulness, there are a number of problems in the practice of their application. The purpose of the research is to analyze the relevant issues of Incoterms application, which significantly influence foreign trade and the economic situation in certain countries. In the research the general methods of scientific investigation are used, i.e. the systematic and dialectic methods; the general scientific methods - induction and deduction, analysis and synthesis, proceeding from abstract to specific, etc.; a legally specific method - the formal-economic and the comparative-economic methods. The article examines Incoterms 2010 and their differences from and similarities to their predecessor - Incoterms 2000. Furthermore, the authors formulate the key problems arising in relation to Incoterms 2010 application and assess their impact on international trade in general. They concluded that the Incoterms rules are a very efficacious regulator of the foreign trade transactions. The issues caused by their application need to be solved urgently, as they lead to letdown of foreign trade.

Keywords: Incoterms 2010, foreign trade, foreign trade contract, international trade custom, international sales of goods.

DOI: 10.12737/article_58ec9f5859ede8.70279634

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THE LIMITS OF CHOICE OF APPLICABLE LAW UNDER THE EUROPEAN UNION REGULATION No. 864/2007 OF 11 JULY 2007 “ON THE LAW APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS”  Pdf 16

K. V. NAM

lawyer of the Moscow attorney chamber, candidate of legal sciences, master of private law, LL.M (Heidelberg BRD)
43, Sivtsev Vrazhek st., Moscow, Russia, 119002
E-mail: 6964889@gmail.com

The tendency toward unification of EU countries’ national legal orders is a natural and necessary part of integration processes within the European Union. However, due to the diversity and differences of legal systems and cultures in the European states, the question of establishing a complete uniformity of material legal norms, first of all, in the field of private law, seems to be the one of a remote future. In this regard, a milestone development has been the unification of EU countries’ legal norms of private international law concerning non-contractual obligations, i. e. the adoption and entry into force of the EU Regulation (Rome II). One of the main novelties introduced therein is the principle of parties’ autonomy according to which parties to a non-contractual obligation have the right to choose the law to be applied to their relationship. The author analyzes and systemizes the limits of such a choice contained in the EU Regulation (Rome II). Parties to non-contractual obligations through the choice of applicable law can build their relationships in a way that corresponds to their goals and wishes. However, at the same time they should carefully consider all limitations of their choice of law and possible legal implications of it which are contained in the EU Regulation (Rome II).

Keywords: private international law, European Union, unification of legal norms, non-contractual obligations, limits of the right of choice of applicable law.

DOI: 10.12737/ article_58ec9f585c3c88.66062020

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POSTPONEMENT OF EXPIRY OF THE LIMITATION PERIOD IN CASE OF THE INCAPACITY OF THE CREDITOR WITHOUT A REPRESENTATIVE  Pdf 16

K. G. SAVIN

postgraduate student at the Institute of Legislation and Comparative Law under the Government of the Russian Federation, attorney of the Branch “Pavlova and Partners” of Inter-Republican Bar Association (Moscow), master of jurisprudence (Russian School of Private Law)
21/11, Trubnaya st., Moscow, Russia, 127051
E-mail: kostya.savin@gmail.com

The article considers such a poorly studied ground for changing the usual order for calculating the limitation period as the absence of a representative of the incapable creditor. An increased attention to the problem of the influence of the creditor’s incapacity on the running of the limitation period confirms the relevance of the topic. The article contains a brief overview of the problem in the domestic and foreign law. The author supports the idea that the absence of the representative of incapable creditor should lead to a change in the usual order of the limitation period. In support of the given idea the article comprises and evaluates the basic political and legal arguments on the both sides. Based on the results of the study of the issue recommendations are given on the appropriate content and place of the relevant norm in the institute of limitation period in the context of current reform of the civil legislation in the sphere of limitation period. Thus, in a case of the total or partial incapacity of a natural person without legal representative, the limitation period in favor of or against the said person will expire no earlier than six months after the cessation of the incapacity or the appointment of his representative, whichever comes first. The limitation period for claims between fully or partially incapable person and his legal representative will expire no earlier than six months after the cessation of the incapacity of the authorized person or the appointment of a new representative of him.

Keywords: limitation of actions, postponing the limitation period, incapacity of the creditor, absence of representative.

DOI: 10.12737/article_58ec9f585e8ca2.98091146

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COMPARATIVE LEGAL ANALYSIS OF THE CRIMINAL LAW LIABILITY FOR IMPROPER PERFORMANCE OF THE PROFESSIONAL DUTIES  Pdf 16

Sh. Dj. KHAYDAROV

applicant at the Tashkent State Law University
35, Sayilgokh st., Tashkent, Uzbekistan, 100047
E-mail: shuxratjon_xaydarov@mail.ru

On the basis of the provisions of the criminal legislation of several foreign countries (Russia, Uzbekistan, Armenia, Azerbaijan, Belarus, Bulgaria, Venezuela, United Kingdom, Germany, Georgia, Kazakhstan, Kyrgyzstan, Moldova, United States, Tajikistan, Turkmenistan, Ukraine, France, Estonia, South Korea) the comparative-legal analysis of criminal liability for the improper performance of professional duties is given. The specific features of social relations - object of criminal law protection in the studied countries are determined. Public danger of these crimes is analyzed in the context of the constitutional right to life, health and integrity. The legal essence of concepts such as “failure to fulfill professional duties” and “improper performance of professional duties” is defined. The important constituent elements of criminal liability for the improper performance of professional duties in the studied countries are specified. The priority directions of improving norms of the criminal legislation are offered. The conclusion is made that the positive legislative experience of the countries under investigation can be applied in the criminal legislation of Uzbekistan.

Keywords: crime, criminal responsibility, profession, professional duties, improper performance, health protection, medical care, integrity, negligent and careless attitude, result, harm.

DOI: 10.12737/article_58ec9f586100f2.16139511

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THE DEVELOPMENT OF THE USA LEGISLATION ON THE FIGHT AGAINST TERRORISM BEFORE 11 SEPTEMBER 2001  Pdf 16

A. E. EFREMOV

legal councel of legal support group of the Military unit No. 44643
11a, Kirov st.,Yoshkar-Ola, Russia, 424038
E-mail: dreamlife1988@yandex.ru

The article is devoted to the consideration of the stages of the development of the US legislation on the fight against terrorism. The goals and tasks solved by the state in a concrete historical period are considered. The anti-terrorism laws adopted by the US Congress are analyzed. The main directions of the US state policy in the field of the fight against terrorism are determined. The author shares the development of US anti-terrorism legislation in three stages. Two of them are considered in the article. The first stage refers to the period of the 1860s-1920s, a stage of the fight against internal terrorism. At this stage there was a struggle of the US authorities with anarcho-terrorism, as well as with the activities of a number of secret terrorist communities that later merged into the most powerful criminal organization - Ku Klux Klan. The second stage refers to the period from 1920 to 2001, the stage before the events of September 11, 2001. The activities of the US authorities at this stage is based on the principle of forcibly suppressing of the activities of foreign special services of hostile states. The laws aimed at combating terrorism, adopted by the US Congress until September 11, 2001, are analyzed.

Keywords: USA Legislation, stages of development, the fight against terrorism, Enforcement Act of 1871, National Security Act of 1947, Memorandum of National Security No. 124, Memorandum of National Security No. 177, Racketeer Influenced and Corrupt Organizations Act, Foreign Intelligence Surveillance Act, COINTELPRO, Reagan’s Doctrine, Internal Terrorism, International Terrorism.

DOI: 10.12737/article_58ec9f58786a01.82819463

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LEGAL MODELS OF EURASIAN AND LATIN-AMERICAN INTEGRATION ASSOCIATIONS  Pdf 16

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

E. E. RAFALYUK, adviser of the Department of the Secretariat of the Court of the Eurasian Economic Union, candidate of legal sciences
5, Kirov st., Minsk, Belarus, 220006
E-mail: rafaliuk_e@mail.ru

M. V. ZALOILO, 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: theory3@izak.ru

N. V. VLASOVA, 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: natasha.vlasova@rambler.ru

The article deals with various legal models of integration associations of Eurasia and Latin America. The authors argue that the model of integration association is based on a set of attributes (purpose of integration, system of bodies and its' competence, procedure of decision making, depth of economic and legal convergence, etc.). One of the characteristics of a model of integration association is a type of cooperation: coordination or supranational. Integration associations differ depending on a particular form of economic integration (free trade area, customs union, common economic space, common market, economic union, etc.), which also characterizes the individual model of each of the integration union. Organization of American States is characterized as a union of a coordination type of cooperation. Mercosur is an international organization of coordination with several supranational features. The model of the Andean Community is seeking for a supranational type. The evolution of Latin American integration communities depends primarily on the political and economic factors. There are new models of integration communities based on the agreements between several regional blocs. The forms of the Eurasian economic integration are the customs union, the common economic space, forming common market. The Eurasian Economic Union tends to the supranational association. Based on the research conducted using the formal-legal, comparative and historical-legal methods the authors formulate conclusions about the trends, challenges and prospects of further development of integration processes in the Eurasia and Latin America.

Keywords: legal model, integration association, coordinating cooperation, supranationality, customs union, free trade area, common economic space, Organization of American States, Andean Community, Mercosur, Commonwealth of Independent States, Eurasian Economic Union.

DOI: 10.12737/article_58ec9f587df487.77384276

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TOPICAL LEGAL ISSUES OF COMPETITION DEVELOPMENT IN THE ENERGY SECTOR OF THE EUROPEAN UNION  Pdf 16

I. V. GUDKOV

associate professor at the Department of legal regulation in fuel and energy of the International Institute of Energy Policy and Diplomacy of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation
76, Vernadsky ave., Moscow, Russia, 119454
E-mail: i.gudkov@adm.gazprom.ru

This article is devoted to analysis of some topical legal issues of competition development in the EU energy sector. It addressed the sources of competitive legal regulation of energy relations in the EU, the trends of the realization of general and specific competition rules in the context of energy relations, the issues of some exceptions in the context of the competition law regime of the EU and features of application of EU competition rules to import and export energy relations. Present work proves the following theses: 1) liberalization of the EU energy market through the progressive strengthening and expansion of the regulation concerned; 2) development of special secondary EU energy law has an impact on the practice of application of the general antitrust provisions of primary EU law; 3) the regime established by the special EU secondary energy law makes more harder the process of invest in a new energy infrastructure, and this fact demonstrates the need for exceptions in respect of new major infrastructure projects, but such rules of exceptions leave too much space for the subjective discretion of law enforcement agencies and consequently pose a risk of uneven and inconsistent practices; 4) the necessary investments in a new EU infrastructure require not only some exceptions at the level of EU Member States but also introduce compulsory network planning and EU-level support for projects of “general interest”; 5) in the framework of the Energy Union Strategy it can be seen the EU’s desire to disseminate internal rules on import-export relations, but in relations with third countries not intending to join the EU, this desire has an objective political and legal constraints limits which are leading, inter alia, from the doctrine of “international comity”, “state actions” and “state coercion”.

Keywords: EU competition law, EU energy legislation, energy, EU Third energy package.

DOI: 10.12737/article_58ec9f58824388.61297911

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INTERPOL ROLE IN THE INTERNATIONAL ANTY-CORRUPTION  Pdf 16

S. M. TOKHTARBAEVA

applicant at the Peoples’ Friendship University of Russia
6, Miklukho-Maklay st., Moscow, Russia, 117198
E-mail: fluer@ro.ru

The research subject of the present article is a structural analysis of international experience in the field of transnational anti-corruption by Interpol in relation to the role of National Central Bureau of Interpol of the MIA of the Russian Federation as a participant of the mentioned law enforcement agency. The purpose of the study is to define the roles, values, prospects of development and use of the potential opportunities in the field of anti-corruption relations of the state authorities and administrations, in the activities of the police community with the participation of Interpol as a leading international law enforcement organization. The research methodology is based on the basic principles of convergent cognitive processes, defined by the exact strategy of using pre-learned algorithms of solving through analysis, synthesis, induction of systematization of the studied scientific problem. The summarized constant of the study includes conclusions on the necessity of the further improvement of the main legal international instruments in the sphere of anti-corruption mentioned in scientific work, on expanding areas and ways of NCB Interpol of the MIA of the Russian Federation involvement in the development and implementation of these instruments, on global operational synchronization of the daily activities of the National Central Bureaus offices in Interpol Member States in the sphere of international, transnational and national anti-corruption. Novelty of the study is to identify the need to develop another one different level of interaction between Interpol Member States in the context of the corruption crimes globalization and coordination of joint activities of law enforcement agencies. Congruent conclusion of the study is the necessity to fix a clear mutual dependence of the effectiveness of international cooperation in combating transnational organized crime and anti-corruption by increasing the level of cooperation between Interpol Member States.

Keywords: International anti-corruption acts, fight against corruption, law enforcement, international police community, Interpol, interaction, information support, coordination of police activities.

DOI: 10.12737/article_58ec9f5885e1c8.83676116

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MODERN TRENDS OF DEVELOPMENT AND IMPROVEMENT BY MEANS OF UNIFICATION OF THE JUDICIAL EXTRADITION PROCEDURE OF PERSONS WHO HAVE COMMITTED CRIMES OF A TERRORIST NATURE  Pdf 16

D. A. KOSHKINA

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

The article considers the modern trends of development of mechanisms of regulation of international relations on the example of the judicial extradition procedure of persons who have committed crimes of a terrorist nature, which is one of the key instruments to counter international terrorism. So, the author identified the harmonization of the national legislation of the EU Member States as the main trend as well as in other interregional organizations. A typical example is the European arrest warrant (EAW), introduced by the Framework decision “On the European arrest warrant and the surrender procedures between EU Member States” of 2002. The author analyzed the regulatory counter-terrorism documents of the main interregional organisations and came to conclusion that harmonization of national legislations on issues of legal support of the extradition of persons who have committed the terrorist crimes, is a really necessary measure to ensure international cooperation between different States, including at the level of law enforcement, in matters of anti-terrorist activities. In addition, the article provides relevant examples from law enforcement practices relating to extraterritorial terrorist activities. The author analyzed the motivations of the State to unify their national legislations on improving the effectiveness of legal measures to counter international terrorism.

Keywords: judicial procedure, extradition, unification of national legislation, cooperation, international terrorism.

DOI: 10.12737/ article_58ec9f588a6bc3.11920276

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EVOLUTIONARY INTERPRETATION OF INTERNATIONAL FINANCIAL MECHANISMS’ NORMS IN THE PRACTICE OF INTERNATIONAL TRIBUNALS  Pdf 16

Yu. E. IBRAGIMOVA, M. G. ogly MEKHTIEV

Yu. E. IBRAGIMOVA, postgraduate student, junior research fellow of the Institute of Legislation and Сomparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: juliaibragimova@mail.ru

M. G. ogly MEKHTIEV, postgraduate student, junior research fellow of the Institute of Legislation and Сomparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: mekhtiev.mg@gmail.com

The article is devoted to the features of evolutionary interpretation and discusses its advantages and disadvantages. Special attention is paid to the principle of “contemporaneity” revealed in the practice of international courts that considers financial disputes. Due to the dynamism of international financial and monetary relations and technological development, the existing terms are not able to cover these novels. To avoid changes in the treaties, which sometimes are universal, international courts have addressed these problems through interpretation of existing definitions in the light of changed circumstances, while preserving goals and objectives of the treaties. This approach makes treaties of international financial and monetary law to be “alive”, efficient and flexible on the one hand and durable, requiring no changes on the other hand. Moreover evolutionary interpretation of international monetary law contributes to the development of financial institutions, development of international financial mechanisms and stabilization of the world monetary and financial systems. As an example, the authors analyzed the decision of the Court of Justice of the European Union on the case of European tax legislation’s application to cryptocurrency - Bitcoin. The Court assimilated cryptocurrencies to conventional currencies and thus the term has evolved to include the new kind of electronic money into the existing definition - legal tender.

Keywords: evolutionary interpretation, European Court of Human Rights, international courts, practice of international courts, international financial mechanisms, international monetary law.

DOI: 10.12737/article_58ec9f58a1d255.93227881

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PROBLEMS OF DEFINITIONS IN INTERNATIONAL WATER LAW  Pdf 16

Yu. A. SLUCHEVSKAYA

senior expert of the Law department of the Ministry of Internal Affairs of the Russian Federation, candidate of legal sciences
12А, Zhitnaya st., Moscow, Russia, 119049
E-mail: ula-sl@mail.ru

The article studies one of the basic definitions of International Water Law - “transboundary waters”. It is noted the altered priorities of the use of water resources as well as new methods used in the natural sciences, especially in the hydrology, have an impact on the content of this definition. It is investigated the correlation of such definitions as “transboundary waters”, “transboundary watercourses”, “international watercourses”, “international river basin”, “international drainage basin”, “international rivers”, “international lakes”. It is analyzed sources of international water law, which was elaborated terminology and definitions, it is traced their evolution. The author points out the following features of the definition “transboundary waters”: 1) these include surface water and groundwater; 2) they cross the border between two or more states are located on boundaries; 3) the use of transboundary waters affects the interests of two or more states; 4) the special legal regulation of their use (the doctrine of absolute sovereignty over water resources are located within of boundaries of the state; the doctrine of belonging of transboundary waters to all states of the international drainage basin; the doctrine of optimal development of the river basin; the doctrine of limited sovereignty; the doctrine of the priority); 5) specific requirements for the protection of ecosystems of transboundary waters; 6) the large conflict potential in use of water resources.

Keywords: transboundary waters, water resources, transboundary watercourses, international watercourses, international river basin, international drainage basin, international rivers, international lakes.

DOI: 10.12737/ article_58ec9f588f5054.20431207

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COMPARATIVE LEGAL ANALYSIS OF THE LEGISLATIVE BASES OF ENVIRONMENTAL MANAGEMENT IN THE CIS COUNTRIES  Pdf 16

A. A. KHODJAEV

responsible employee of the Officer of the President of the Republic of Uzbekistan
43, Uzbekistan ave., Tashkent, Uzbekistan, 100000
E-mail: azim_xodjayev@mail.ru

On the basis of the provisions of environmental legislation of countries of Commonwealth of Independent States the comparative-legal analysis of legal bases of natural resources rational usage is given. The specific features of ecological-legal mechanism of provision of natural resources rational usage in the studied countries are determined. Relations between rational, steady, complex, effective and economical natural resources usage are analyzed. The legal essence of natural resources rational usage as a principle, condition, an element and requirement in the system of ecological-legal mechanism is defined. The major systematic elements of the legal mechanism of natural resources rational usage such as principles of environmental legislation, governance, economic mechanism, state programs, environmental requirements, standards, limits, environmental monitoring, environmental assessment, monitoring, research, system of compensation for environmental damage, environmental education, legal liability, and others are specified. It is concluded that foreign countries legislation defines it as a principle of environmental legislation, conditions for sustainable economic and social development, element of environmental education, type of environmental responsibilities of citizens, problem of environmental control, conditions for the use of economic incentives, object of government programs, requirements of special use of nature. The priority directions of improving norms of the ecological legislation, directed on providing natural resources rational usage are offered. The conclusion about possibility of using of the rules laid down in the legislation of studied states in the legislation of Uzbekistan is made.

Keywords: environmental legislation, sustainable, integrated, efficient, economical and resource-saving nature, principle, public administration, environmental education.

DOI: 10.12737/article_58ec9f58947018.17218260

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LEGAL PROBLEMS OF COUNTERTERRORISM IN A CHANGING WORLD AND GLOBALIZATION OF PUBLIC RELATIONS  Pdf 16

N. N. CHERNOGOR, D. A. PASHENTSEV, I. A. SHULYATIEV, L. О. GONTAR

N. N. CHERNOGOR, head of the Department of state-legal disciplines of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor

D. A. PASHENTSEV, leading research fellow of the Department of theory of legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor

I. A. SHULYATIEV, senior lecturer of the Department of state-legal disciplines of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

L. О. GONTAR, undergraduate student at the Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: theory@izak.ru

One of the most important challenges that threaten security and the harmonious development of humankind is terrorism. International counterterrorism is a major task of the world community, and the modern civilization depends of the successful solution of this task. This struggle must be based on some fundamental principles: the scientific validity of a coherent system of anti-terrorist activities; coordination of efforts of all world community; the combination of antiterrorist measures in the political, military, law enforcement, social spheres; improving anti-terrorism legislation. The problem of terrorism should be considered as complex problem consisted of political, economic, ideological, national, religious, social and legal components. The effort of scientific understanding of important issues related to the fight against international terrorism were undertaken at the scientific conference “Legal problems of counterterrorism”, held at the Institute of Legislation and Comparative Law under the Government of the Russian Federation on 29 September 2016. Students of the leading universities of our country participated this conference. The article presents an overview of the discussions held in the framework of the conference, and summed up its main results. The participants of the conference noted that currently not all types of terrorism are the objects of international legal regulation. The ideological content of terrorism can be used as criteria for the classification of terrorism and its separation from other social phenomena. International terrorism can be funded from various entities, including philanthropic organizations, there is a strong need to improve the normative legal regulation of activities of these structures.

Keywords: terrorism, extremism, normative legal act, international, security, state, conference, legal policy.

DOI: 10.12737/article_58ec9f589b51d9.92521680

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CONSTITUTIONAL REFORMS AS “THE ART OF THE POSSIBLE” (REVIEW OF THE MONOGRAPH: KHABRIEVA T. Y. CONSTITUTIONAL REFORM IN THE MODERN WORLD. MOSCOW, 2016. 320 P.)  Pdf 16

A. I. KOVLER

head of the Center of the legal issues of integration and international cooperation 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: kovler@izak.ru

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