Contents # 4/2017

SOCIAL CONTROL AND ANTI-CORRUPTION  Pdf 16

T. Y. KHABRIEVA

academician of the Russian Academy of Sciences, associate member of the Academy of Comparative Law, doctor of legal sciences, professor, honored lawyer of the Russian Federation, honored lawyer of the Republic of Tatarstan, vice-president of the Russian Academy of Sciences, director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, member of the European Commission for Democracy through Law (Venice Commission of the Council of Europe)
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office@izak.ru

The article contains main theses of the author’s speech at the VI Eurasian Anti-Corruption Forum “Social control as a key factor of anti-corruption” which took place in Moscow, 26-27 April 2017 within the frame of implementation of point 19 of National Anti-corruption Plan 2016-2017. On the basis of analysis of international legal norms, provisions of national and foreign legislation, including open government institute’s regulation the concept of social control is formed, its place and role in modern anti-corruption politics are determined. The danger of distancing of state from the institutions of civil society is underlined, because it causes weakening of the whole state, provokes the intervention of external forces into internal affairs of the country. In the article the tendency is analyzed which consists in changing of the goal-setting of social control in the process of its legal consolidation and implementation by individual entities that invest in it a sense close to law enforcement, although it is exclusively a state function. Risks of deformed understanding of essence of social control are examined and new legal solutions of improving legislation in this area are proposed, in particular, conduction of complex evaluation of adaptive possibilities of international legal norms and determination of difficulties, related to assumption of obligations; the development of interstate implementation mechanisms; expansion of the circle of subjects of public control and activation of departmental monitoring of the activities of non-profit organizations. The author comes to the conclusion that it is necessary to form an international standard of anti-corruption social control, taking into account international legal acts and scientific research. At the same time, the concept of such a standard must be based on an understanding of its creative nature, the potential of cooperation between various social structures for the common good.

Keywords: anti-corruption, social control, subjects of social control, UN Convention against Corruption, international standard, open government, non-profit organizations, intersectoral interaction.

DOI: 10.12737/article_598063f9e7d352.66015568

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SOCIAL CONTROL AND CORRUPTION OFFENCES OF LEGAL ENTITIES  Pdf 16

A. V. FEDOROV

leading research fellow of the Department of criminal and criminal procedure legislation; judicial systems of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, deputy head of the Investigative Committee of the Russian Federation, candidate of legal sciences, professor, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: 1956af@mail.ru

The article is based on the theses of the report at the VI Eurasian Anti-Corruption Forum “Social control as a key factor of anti-corruption” (Moscow, April 26-27, 2017) and is devoted to social control as a regulator of public relations, which consists in the development and implementation of social norms, allowing to maintain compliance with the rules of life, providing socially significant public interests. In addition the allocation of anti-corruption social control is justified, based on the relevant social norms, including moral and religious norms, morality and law. In particular, it is noted that the assessment of the activities of a legal entity as immoral and sinful may be one of the components of the justification for the need to criminalize the acts of legal entities or to establish administrative liability for such acts. In the opinion of the author, if we consider the immoral and sinful act of a legal entity from the position of the inner world, then the legal entity does not have such a world. However, this should not be an obstacle for assessing the act of a legal entity as immoral or sinful, because such an assessment is given by a society that can condemn a legal entity for actions committed from the moral and religious positions. On the basis of the analysis it is concluded that not everything that is applicable to a particular person can be applied to a legal entity, but the law and morality are developing in such a way that, perhaps in the long term, the public condemnation of legal entities for committing corrupt offences, recognized by the population as sinful and immoral, will become no less effective measure of impact than the attraction of a legal entity to administrative or criminal liability.

Keywords: social control, law, morality, sin, moral basis of criminal responsibility, criminal liability of legal entities, administrative responsibility of legal entities.

DOI: 10.12737/article_598063fa635249.09605022

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SOME DIRECTIONS OF IMPROVEMENT OF NORMATIVE LEGAL REGULATION OF THE STATE ANTI-CORRUPTION POLICY TAKING INTO ACCOUNT REQUIREMENTS OF INTERNATIONAL ANTI-CORRUPTION TREATIES  Pdf 16

V. I. MIKHAYLOV

deputy director of the Department for interaction with state authorities of the State Space Corporation “Roscosmos”, doctor of legal sciences, professor, honored lawyer of the Russian Federation
42, Shchepkin st., Moscow, Russia, 107996
E-mail: vim2007@yandex.ru

The article describes the main elements of state policy in the sphere of anti-corruption as a system of measures of social control over corruption. It is noted that the norms on combating corruption, the formation of which is attributed to the competence of the Russian Federation, are contained in more than 50 regulatory legal acts of the Russian Federation. The anti-corruption legislation of the Russian Federation is constantly being improved and becoming more integral. In particular, the basis of the implementation of the state anti-corruption policy is the “outstripping” model of legal regulation, taking into account the direction of corruption crime. In addition, the state anti-corruption policy, taking into account the requirements of international anti-corruption treaties, is aimed at the consistent implementation of the provisions of international conventions. The article shows the tendency of increasing importance of targeted state-legal counteraction to corruption at the international and national levels. The necessity of using the preventive anti-corruption potential provided by the legislation of the Russian Federation is substantiated. In order to improve the system of social control, it is proposed to systematize, streamline the legal norms regulating various aspects of anti-corruption and reflect them in a new version of the Federal Law “On Combating Corruption”. Also systemic measures are required to stabilize the socio-economic and political development of the state while continuing to adopt effective anti-corruption practices. The issue of criminalizing the promise and offering of commercial bribery and bribes as completed crimes is considered. The conclusion is drawn that it should not be about adjusting certain existing provisions of the criminal law, but about a comprehensive change in legislation and the formation of good practices for its application.

Keywords: state policy in the sphere of combating corruption, systematization of legal norms on counteracting corruption, promise and offer of bribes.

DOI: 10.12737/article_598063fa7cc709.63836564

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SOCIAL CONTROL AS A KEY FACTOR OF ANTI-CORRUPTION  Pdf 16

A. M. TSIRIN, S. N. MATULIS, M. A. MOLCHANOVA

A. M. TSIRIN, acting head of the Department of anti-corruption methodology of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences

S. N. MATULIS, senior research fellow of the Department of anti-corruption methodology of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of political sciences

M. A. MOLCHANOVA, junior research fellow of the Department of anti-corruption methodology of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

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

The article outlines the positions expressed by the participants of the VI Eurasian Anti-Corruption Forum “Social Control as a Key Factor of Anti-Corruption”, held on April 26-27, 2017. A high level of scientific representation of countries was provided both by scientists and practitioners. The Forum was attended by: Dean and Executive Secretary of the International Anti-Corruption Academy (IACA) M. Kreutner, Prosecutor General of the Republic of Belarus А. V. Konyuk; Deputy Director of the Institute of state and Law of The Russian Academy of Sciences, Professor Chen Su, other representatives of leading European and Eurasian world scientific centers, including the Paris 1 Pantheon-Sorbonne Research University (French Republic). The work of the Forum is aimed at understanding the actual theoretical and practical problems of ensuring social control in the sphere of anti-corruption, searching for new ideas, forms and effective ways of institutionalizing anti-corruption control by society in Russia and abroad. The discussed questions: the regulation of social control in various legal orders; criminological characteristics of corruption crime; main trends in the development of international anti-corruption cooperation; corruption offenses of organizations and the attitude of society towards such offenses; the role of the institution of commissioners in protection of the rights of entrepreneurs in anti-corruption; issues related to improving the effectiveness of social control, including anti-corruption education. The participants of the Forum came to the conclusion that the fight against corruption is a task not only for state authorities and local self-government, but also for civil society, organizations and citizens. At the same time, the improvement of the state anti-corruption policy assumes conducting interdisciplinary scientific research of the state, trends and dynamics of corruption, as well as anti-corruption legislation and practices. Based on the results of the work, recommendations were approved.

Keywords: Eurasian Anti-Corruption Forum, international anti-corruption cooperation, anti-corruption, social control, conflict of interests, non-profit organizations, civil society.

DOI: 10.12737/article_598063fbdc5c18.44760849

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MARKET OF JUDICIAL REPRESENTATION: FROM THE EXPERIENCE OF THE CONTINENTAL AND ANGLO-SAXON LEGAL TRADITIONS  Pdf 16

V. V. MOMOTOV

chairman of the Council of Judges of the Russian Federation, judge of the Supreme Court of the Russian Federation, judge of the highest qualification class, doctor of legal sciences, professor
8, Barrikadnaya st., Moscow, Russia, 123995
E-mail: ssrf@ssrf.ru

In most developed legal order a stable and significant market of judicial representation was formed. Despite the fact that representation of the interests of citizens and organizations in courts on a commercial basis in our country is widespread, the Russian Federation is still on the way of forming such a market. The most significant influence on the formation of the judicial representation market is provided by the legal regulation of this procedural and legal institution: it can both facilitate and prevent the development of this segment of the economy. Unfortunately, there are no studies that consider the regulation of judicial representation in a comparative legal context from the standpoint of a balance between economic efficiency and fairness. The purpose of this study is to identify global trends in the regulation of judicial representation in its economic aspect, the evaluation of such regulation in Russian law and the proposal for ways to improve it. The objectives of the study are the analysis of the institution of “judicial investment”, the study of the trend of professionalization of judicial representation, as well as consideration of the problem of “honorariums of success”. To achieve the goals and objectives of the study, system-structural, comparative-legal, historico-systemic and statistical methods, as well as general scientific methods of induction and deduction are applied. Based on the results of the study, taking into account the current Russian legislation, as well as global trends in the development of the judicial representation market, suggestions are made about the expediency of developing in the Russian Federation an institute for investing in litigation, as well as for introducing mandatory professional representation in courts and reviewing the actual prohibition of inclusion in treaties on Provision of legal services conditions on the “honorarium of success”.

Keywords: judicial representation, investments, lawyer monopoly, honorarium of success.

DOI: 10.12737/article_598063fa89c7a0.77902602

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THE INFLUENCE OF THE CITY GERMAN LAW ON REGULATION OF TRADE RELATIONS IN VELIKIY NOVGOROD IN THE XII—XVII CENTURIES  Pdf 16

N. I. NAZARENKO

associate professor at the Moscow University of Finances and Law, candidate of legal sciences
17, Serpukhovsky Val st., Moscow, Russia, 115191
E-mail: n-nazarenko@yandex.ru

The article examines the nature of the influence of Germany’s urban law on Novgorod’s schras and the development of trade relations between Velikiy Novgorod and the Hanseatic League. The history of the formation of the municipal law of Germany and its variants - the system of law of the cities of Magdeburg and Lübeck - is covered. The foundation of the law of Lübeck, Magdeburg and other cities was the norms on the basis of which relations were built with the emperor or the episcopal administration, therefore the city’s charters of Germany have a number of coincidences. Some legal provisions borrowed from the city charters, as well as the rights of Lübeck and Magdeburg, will subsequently be included in the texts of Novgorod’s trade agreements and Novgorod hiding after the organization of trade representations (courtyards, factories) of the Hansa. Novgorod’s schras - multidimensional collections containing provisions on the organization of the court, the rules of trade, as well as the rules of criminal law and process. The texts of the laws have come down to our time in seven editions. The basis for all subsequent versions of the collections was the text of the secret of the second half of the XII century. Organized nature, benefits, rights and economic interests allowed German merchants to gain advantages in trade and to exist in Novgorod as a corporation for several centuries. Structural changes in the trade relations of Novgorod and the cities of the Hanseatic League led to important changes in law, especially civil and commercial, most related to the economy. Economic interaction initiated the process of legal integration between Russia and the West, stimulated the rapprochement and mutual influence of Russian and European legal institutions, gave rise to new forms of law that are acceptable for today.

Keywords: Hansa, Velikiy Novgorod, Novgorod schra, law of Magdeburg, the city law of Germany, legal integration.

DOI: 10.12737/article_598063fa9740b6.23500509

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HENRI LÉVY-BRUHL’S DOCTRINE ON LAW AND ON THE FORMATION OF LEGAL SCIENCE OF A NEW TYPE  Pdf 16

V. V. PUZHAEV

assistant at the Department of civil law and procedure of the Law faculty of the Lobachevsky National Research State University of Nizhny Novgorod
4, Ashkhabadskaya st., Nizhny Novgorod, Russia, 603115
E-mail: notionn@mail.ru

The article is devoted to the investigation of legal ideas of Henri Lévy-Bruhl, a French lawyer and sociologist of the XX century, who is considered to be one of the founders of contemporary sociology of law, legal ethnography and legal anthropology. The author of the article analyzes the late articles of Henri Lévy-Bruhl. The author of the article examines the notion “juristique”, introduced by the French professor, and investigates its methodological and substantial peculiarities. As a scientific discipline, “juristique” was supposed to be shaped through the integration of sociology of law, history of law and comparative law into a body. The author also pays special attention to H. Lévy-Bruhl’s theoretical views on the question of law and mechanisms of its formation, on subjects of law-making and sources of law. In particular, the author considers Lévy-Bruhl’s views of collective opinion as the only true source of law, customs’ priority over legislation among all forms of law, judicial practice as the modality of a custom. The key role of Durkheim’s sociology in the shaping of Henri Lévy-Bruhl’s legal views is also highlighted. Henri Lévy-Bruhl’s particular ideas are compared with the doctrine of historical school of law. The final part of the article is devoted to formulating a series of theses which reflect the peculiarities of Henri Lévy-Bruhl’s legal views and his role in contemporary legal doctrine.

Keywords: comparative method, source of law, law comprehension, sociology of law, legal obligation, Lévy-Bruhl, jurisprudence, legal custom, law.

DOI: 10.12737/ article_598063faa9e0b0.71588639

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IMPROVING THE EFFICIENCY OF CANADA’S PUBLIC SERVICE  Pdf 16

N. M. KASATKINA

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign2@izak.ru

Improving the efficiency of public service is an important area for overcoming the crisis in relations between the state, society and a citizen. Modernization of civil service of Canada is carried out in a number of ways. Changes were made in a recruitment order for civil service by means of expansion of the powers of persons competent to solve these issues in ministries and government departments. One of the directions for improving the quality of the civil service was an increase in the level of training of public servants. Coordination of the educational process in various government departments is carried out by the Canadian School of Public Service. The system of human resources planning has been introduced. The quality of public services provided is improved with help of timely providing them in compliance with all requirements of a particular government department, and taking into account the rights of citizens by achieving a balance between the services provided and the money spent for this purpose and regular monitoring and evaluation of the dynamics of the providing process of services. One of the areas of modernization of the public service is the introduction of strict control over of public servants’ ethical standards. Actions that lead to a conflict of interest are legislatively prohibited. Strict bans in Canada are implied regarding the employment of persons who replace public office after the end of their career. As a result of the measures taken to fight corruption, including a sphere that is largely susceptible to corruption risks, Canada is among top ten countries with the least corruption. Achievement of positive results in the activities of civil servants became possible due to the state’s special attention to the issues of its modernization.

Keywords: public service, control, training of civil servants, ethical standards of behavior, suppression of corruption.

DOI: 10.12737/article_598063fc07df68.36599927

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LEGAL REGULATION OF PUBLIC RELATIONS ON THE MEDICAL SECRECY IN THE KINGDOM OF DENMARK AND IN THE RUSSIAN FEDERATION: A SELECTIVE COMPARATIVE ANALYSIS  Pdf 16

A. V. PAVLOV

lecturer at the Sorokin Syktyvkar State University
55, Oktyabrsky ave., Syktyvkar, Russia, 167001
E-mail: alexpavlov.56@mail.ru

The purpose of this study is to conduct a selective analysis of the legislation of the Kingdom of Denmark that regulates public relations regarding medical secrecy in comparison with the legislation of the Russian Federation regulating similar relations. The relevance of the topic is determined by the need to study the specific features of the legal regulation of the social relations selected, as well as the possibility of extracting positive experience of legal regulation of the legal forms chosen - legal relations, legal forms, etc. The object of the study is the public relations that arise over the medical secrecy in the Kingdom of Denmark and in the Russian Federation. The subject of the study is the comparison of a legal institution of medical secrecy and a similar institution in the Russian Federation. The methodological basis of the research consists of general scientific methods of research - analysis and synthesis, system-structural, formal-logical and analogies, as well as special methods - historical, comparative analysis, descriptive and other methods. The legal regulation of public relations regarding the medical secrecy of a citizen in the Kingdom of Denmark - in comparison with a similar category in the Russian Federation - has significant differences, which can be explained by the specific features of legal systems of both states belonging to different legal families. Despite the fact that in Denmark the legal regulation of relations regarding medical secrecy refers to the powers of bodies other than the legislature and the executive (competence of the Ministry of Health of the Kingdom of Denmark). It is characterized by perfect legal techniques and a wide and comprehensive coverage of regulated relations that are relevant and worthy to pay attention for the purpose of research and discussion. At the international level the Kingdom of Denmark, in fact, is not a party to international legal acts regulating social relations arising from medical secrecy (with the exception of several international legal acts). To a large extent, these issues are in the competence of national legislation.

Keywords: medical secrecy, confidential information, registers, international legal acts.

DOI: 10.12737/article_598063fabf7fc0.39030946

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THE RIGHT TO ACCESS TO CULTURAL VALUES: A COMPARATIVE-LEGAL ANALYSIS OF FOREIGN LEGISLATION  Pdf 16

D. V. ZHUKOV

research fellow of the Сonstitutional law 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: const@izak.ru

The article is devoted to consideration of the concept of “cultural values”, the ambivalent interpretation in international legal acts and reception into laws of various states. Culture has always been and continues to be the most important line of activity of a state which is closely connected with the state of the spiritual sphere of the society’s life. The cultural rights form an independent section of rights and relate, in historic terms, to the so-called “second generation rights”, along with economic and social rights. Since the last half of the XX century, introducing of cultural rights into the category of constitutionally vested becomes one of the distinguished features of law making development in many countries of the world. The article aims to demonstrate development of the concept of “universal heritage of humanity” and its globalization in the modern international law. It has been observed in the article that, despite different attitudes to the concept of “cultural values”, the mentioned category acquires an attribute of “universal significance” for the world culture in general. The author also sets a target to disclose the concept of “rights for access to cultural values” through the example of reviewing laws of former CIS countries and a number of Western European countries. The article draws attention to the fact that regulatory acts of European countries do not contain direct provisions of rights for access to cultural values as a complex of legal institutions; however, a number of laws contain certain elements of this right. In his article the author also considers the provision of interdetermination of the right for access to cultural values with right of dignified life. The dialectic, systematic, legal comparative, normative and other methods of obtaining knowledge were taken as a methodological basis of this scientific work. On basis of the reviewed material, the author comes to a conclusion that the international law establishes universal human and civil rights and freedoms in scope of cultural rights and determines their content. Each state should not only provide details in national law but also ensure their practical realization in order to save and rationally use its cultural heritage.

Keywords: cultural values, achievements of culture, cultural facilities, cultural heritage, cultural property, monuments of history and culture.

DOI: 10.12737/article_598063facde5a2.87050051

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PLEDGE LAW REGULATION IN THE NEW CIVIL CODE OF THE CZECH REPUBLIC  Pdf 16

O. M. SAKOVICH

leading 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
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign3-5@izak.ru

This article is devoted to analysis of the pledge law regulation in the Civil Code of the Czech Republic. The Civil Code was adopted within a private law reform. The author addresses the fact of renouncing dualistic system of private law. The notion of pledge in Czech law is discussed. The article places special emphasis on the evaluation of the pledge agreement’s position in the pledge relationships together with correlation of the contract and law’s state in course of pledge agreement negotiation. Requirements to the form of contract and its content depending on a pledged assets are esteemed. The article also includes comment on the Czech law approach to the registration of the pledge titles and security interests. The articles of the newly adopted Civil Code are compared with prior legal regulation in the Czech Republic. The author focuses on characteristics of special types of pledge such as pledge of shares, securities, account of paperless securities’ owner, rights in action and special property. The procedure for levying execution is examined in the article in combination of analysis of the role of parties’ declaration of intent in a process of selection of assets disposal method. There are such methods as public sale and enforced sale. Both methods’ procedures are regulated by special laws. The article gives priority of claims in case of asset disposal which is stipulated by the Civil Code.

Keywords: private law reform, civil law, security instruments, pledge agreement, security interest, pawnbroker, right to retain possession, Czech Republic.

DOI: 10.12737/article_598063fadb5351.90879993

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INTERNATIONAL LAW ASPECTS OF GERMAN COPYRIGHT LAW (GCL)  Pdf 16

Yu. M. YUMASHEV, E. V. POSTNIKOVA

Yu. M. YUMASHEV, professor at the Department of public international and private international law of the National Research University “Higher School of Economics”, doctor of legal sciences
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: yumashev@hse.ru

E. V. POSTNIKOVA, associate professor at the Department of public international and private international law of the National Research University “Higher School of Economics”, candidate of legal sciences
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: epostnikova@hse.ru

The article deals with international law aspects of the GCL. To this aim firstly the international conventions on copyright law are analyzed, in particular: the Berne Convention for the Protection of Literary and Artistic Works in the wording of the Paris Act of 1971, the Convention on the Establishment of the World Intellectual Property Organization of 1967, the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 1961 and Aspects of intellectual property rights (TRIPS) 1994. There is also an analysis of the EU copyright law in terms of its correlation with the law of the EU member-states and an assessment of its evolution. It is emphasized that the core fact of origin of authorship is determined on the basis of the national legislation of the Member-States. Special attention is paid to the scope of the “principle of exhausted rights”. The article also touches upon the aspect of private international law. Particular attention is paid to the legal regulation of the Internet, including Internet providers, and its impact on the formation of the GCL. The problem of combating Internet piracy is also raised, as copyright infringement often occurs in relation to works published online. In addition, the article revealed what changes were made to the GCL to comply with EU law (including secondary law acts and the practice of the EU Court). The result of the study is, among other things, the conclusion that special legal mechanisms should be developed to regulate new forms of selling works that have emerged as a result of technological progress and in the near future the Internet will undoubtedly form ways for the further development of the GCL. However, this process can negatively affect the leading role of the author as a creative person.

Keywords: German copyright law, related rights, international copyright conventions, EU law, private international law, Internet.

DOI: 10.12737/article_598063fae98166.23072693

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INTERNATIONAL AGREEMENTS FOR THE PROTECTION OF FOREIGN INVESTOR  Pdf 16

I. O. KHLESTOVA

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

The article is devoted to the analysis of international agreements on questions of protection of foreign investments. The multilateral agreements are investigated in the indicated area. There is a detailed analysis of agreements concluded originally by the USSR and then by the Russian Federation. The author draws attention to the lack of a unified approach to the definition of the concept of “foreign investment”, which has evolved over time. It is argued that both national and foreign investments are an economic category and there is no single legal concept for them, similarly with respect to the definition of the term “an investor”. The guarantees to the foreign investors by virtue of bilateral international agreements on protection of foreign investments are investigated, in particular: most favored nation treatment, national treatment, payment obligation for compensation in case of nationalization, expropriation and other measures that have analogical characters, permission of disputes between an investor and a state accepting investment. The author comes to the conclusion that in international law there is no ordinary norm about investment disputes settlement by international commercial arbitration. The author analyzes changes to the Law of the Russian Federation of July 7, 1993 No. 5338-I on International Commercial Arbitration introduced as a result of the adoption of the Federal Law of December 29, 2015 No. 409-FZ. The article highlights the influence of state courts on the activities of international commercial arbitration, the expansion of the competence of international commercial arbitration and the filling of gaps in the 1993 Law on International Commercial Arbitration. The author believes that the expansion of the use of international commercial arbitration bodies ensures the creation of conditions to protect the interests of foreign investors.

Keywords: international agreements, foreign investments, most favored nation treatment, national treatment, international commercial arbitration.

DOI: 10.12737/article_598063fb0a2158.24037837

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THE LEGAL NATURE OF THE INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES (ICSID)  Pdf 16

M. A. TSIRINA

leading research fellow of the Department of private international law of the Institute of Legislation and Comparative Law under the Government of Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: hataevam@yandex.ru

The article discusses the criteria of the definition of «investment» and protecting the rights of foreign investors (diplomatic protection, judicial protection). Special attention is paid to questions of investment dispute settlement in the framework of the International center for settlement of investment disputes (International Centre for Settlement of Investment Disputes, ICSID) under the Convention on the settlement of investment disputes between States and natural and legal persons of other States 1965 (Washington Convention 1965), the competence of which is the resolution of legal disputes arising from relations connected with foreign investments, that is, relations between a foreign person (investor) and the state. The author provides a detailed analysis of the Washington Convention of 1965, concluded that its provisions cover how to operate an international legal institution (ICSID), as well as regulate the procedure of the settlement of investment disputes. It is noted that, despite the fact that the arbitration and conciliation used in the resolution of investment disputes, based on the norms of international public law, established under the Washington Convention of 1965 on settlement of investment disputes (ICSID), is an international body and the rules of dispute resolution are contained in the text of the international agreements - the Washington Convention of 1965, which is intended to apply precisely to private law disputes.Keywords: investment disputes, participants of investment activity, international commercial arbitration, ICSID, Washington Convention, the protection of investors' rights, protection of the rights of the state.

Keywords: investment disputes, participants of investment activity, international commercial arbitration, ICSID, Washington Convention, the protection of investors’ rights, protection of the rights of the state.

DOI: 10.12737/article_598063fb2cc860.59765189

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MORALITY AS A PRIMARY REGULATOR OF CONTRACTUAL RELATIONS IN THE FRAMEWORK OF A NORMATIVE THEORY OF PROMISES IN A LEGAL DISCOURSE OF THE COMMON LAW COUNTRIES  Pdf 16

R. V. MAKAROVA

postgraduate student at the Civil law department of the Law faculty of the St. Petersburg State University
7-9, Universitetskaya emb., St. Petersburg, Russia, 199034
E-mail: radmila-b@yandex.ru

This article describes the main provisions of the normative theory of promises in the Anglo-American legal discourse. Under this theory, which going back to the origins of natural law concepts, the nature of a civil contract expresses in the volitional act, and the reasons of the obligation of promises are the principles of morality. The author has made a critical evaluation of the position of the normative theory of promises which puts the morality as the primary regulator of the Institute of the contract. As a result the author shows that only morality in a legal dimension, namely the dimension of justice, may act as regulators of the private law. The concept of justice evolves, and today in a civilized society is expressed in two maxima: equality and freedom. And if the first dimension is known back to Roman law and its details was developed by Aristotle, but the humanity has realized the individual freedom as the manifestation of justice not so long ago. The question on relationship of morality and law is as relevant as ever for Russian legal reality, which has been subject of expansion of the good faith principle. Violation of the good faith principle in law enforcement often means the moral condemnation of the behavior of the civil turnover participant. Thus, the morality often goes beyond the justice, and, therefore, outside the scope of legal regulation. In present article the author proves the inadmissibility of such approach. The assumption of morality in the regulation of private legal relations enhances the feeling of legal uncertainty, and becomes a reason of a number of practical problems, in particular, the problem of the source of attitudes, which were conventionally recognized as a moral attitudes, and the problem of the court decision in case of presence of antagonistic moral attitudes, which are equally recognized by the law enforcement authority.

Keywords: normative theory of promises, natural law, correlation of morality and law, justice as a legal principle.

DOI: 10.12737/article_598063fb445c89.22310477

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PUBLIC LAW MEANS AGAINST THE UNFAIR COMPETITION: ASPECTS OF RUSSIA AND THE USA  Pdf 16

S. P. KUBANTSEV

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

The issues of the legal regulation of social relations in the sphere of counteraction of unfair competition are raised in present article. The author outlines the legislative tools which are used in Russia and the United States for the regulation of liability for such acts. Also the author identifies the similar and different ways of legal regulation of these social relations. In this context the most relevant fact is the fact that the legal regulation of these issues in the United States started in the beginning of XX century, and the Russian legislator started to learn them only in the end of XX century. The purpose of the present article is to study the antitrust laws of Russia and the USA; to identify the features of the historical development of legal provisions in this field; to make a comparison of the administrative and penal sanctions on persons violating the rules of fair competition, but not only in a view of the responsibility, but in context of the prevention of such offences; to make a comparative analysis of definitions and levels of responsibility for violations in this sphere. The set of general scientific and private scientific methods of cognition were used during preparing of this article: the dialectical method, the method of analysis and synthesis, logical method, method of comparative law, sociological, historical, formal-logical and other scientific methods. The study was made not only on the basis of the standard manual but also the case law of the higher judiciary. At the end of the study the author comes to the conclusion on necessity of the improvement of legislation in the field of counteraction of unfair competition, in particular in the direction of the creation of the criminal liability institute for legal persons in Russian legislation and the development of the concept of penetration under the corporate veil in the public legal sectors.

Keywords: competition, market, monopoly, responsibility, criminal.

DOI: 10.12737/article_598063fb57bee8.78143508

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“PETTY” CORRUPTION IN FRANCE: THE CONCEPT AND THE METHODS OF SOCIAL CONTROL (in French)  Pdf 16

Yu. V. TRUNTSEVSKY, M. OLLIVON

Yu. V. TRUNTSEVSKY, leading 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: trunzev@yandex.ru

M. OLLIVON, bachelor of law at the University Panthéon-Assas (Paris II)
Paris, France, 75005
E-mail: mollivon@yahoo.fr

The article disclosed such issues as identifying the petty corruption at the national level in France in certain socio-economic spheres, the public attitude towards this phenomenon, the analysis of the mechanism and prerequisites to counter. The author used the methods of empirical research, statistical methods, comparative legal method. The report of Transparency International: “People and corruption: Europe and Central Asia 2016” and the press were used as the basis of the study. The situation concerning the petty corruption in France is not easy to identify because there are no much information sources. It is impossible to distinguish major from petty corruption (domestic) in France for the simple reason that a petty corruption does not interest the French public, which does not suffer from the systematic immorality of its minor officials. The share of French households experiencing corruption in accessing basic public services is only 2%. The study shows that the three main causes of petty corruption in France are: the absence of any anti-corruption policy and awareness of the importance of issues such as professional ethics, conflict of interest; low wages in certain social spheres, high corporatism, especially in the police. Prevention of corruption is possible through: training of the officials, especially those who are in direct contact with the perpetrators (police, customs and prison officers); study of the process of corruption in the investigation of criminal cases to identify contributing factors. The corruption in France is a serious crime and is punishable by long terms of imprisonment. Its definition is contained in article 435-1 of the Criminal code.

Keywords: population, France, petty corruption, public services, social control.

DOI: 10.12737/article_598063fb73c8b4.27339816

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CRIMINAL LIABILITY FOR HOMEOWNERS’ ASSOCIATION FRAUD IN THE UNITED STATES OF AMERICA  Pdf 16

M. N. ROMANOVSKAYA

postgraduate student at the Khabarovsk State University of Economics and Law
134, Tikhookeanskaya st., Khabarovsk, Russia, 680042
E-mail: marinar@mail.ru

Relatively new type of business activity on apartment house management, which carry out the managing organizations, is on the hard way of development in present time. Numerous violations and crimes in this sphere are becoming more intellectual in nature. In some foreign countries the Association of homeowners (condominiums) is an analogue of our homeowners associations and the Institute of management of apartment houses has a long history. The author carried out the analysis of the main types of fraud in the apartment house management in the United States of America. Such acts include embezzlement (theft) of funds, violation of business law, falsification of the elections to the Board of the Association of owners of property, kickbacks in contracting, fictitious contracts. The main attention was focused on the specifics of the criminal-legal regulation of liability for fraudulent acts in the management of condominiums on the example of the criminal law of the State of California and certain judicial decisions. In particular, the influence of Anglo-Saxon legal system has found the expression in the fact that the criteria for recognition of the person guilty of embezzlement (embezzlement) of funds of owners of property determined by case law, not criminal law. The author has studied the positive experience of the counteraction of irregularities in the activities of the apartment house management by establishing the criminal prohibitions of the concealment or distortion of information on the financial status of the managing organization or condominium. Study of the foreign experience of the classification of crime, counteraction of financial violations in the sphere of apartment building management and reparations for victims of financial crimes will be useful for the scientific understanding of the problem of combating crimes in the sphere of apartment house management in our country.

Keywords: fraud, embezzlement (theft), falsification of elections, homeowners, foreign experience.

DOI: 10.12737/article_598063fb89c313.52285660

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COMPETENCE OF THE ECONOMIC COURT OF THE CIS: WAYS OF IMPROVEMENT  Pdf 16

E. N. NAGORNAYA

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

In the article contains the analysis of functions of the CIS Economic Court, identifies the purpose of its activities and the tasks with reference to specific judicial practice of the Court. The author recalls that the CIS Economic Court is a Commonwealth statutory authority under the section VI of the Charter of the Commonwealth of Independent States. The article contains a critical analysis of publications of legal scholars in the field of international judicial activities, expressed opinions concerning the purpose of creation of the CIS Economic Court, the object of its activities, the subjects entitled to appeal to the Court and interested in its existence. Also the author has paid an attention to the Plenum of the CIS Economic Court as the authority to take into account the degree of development of the law in the context of the integration process in the CIS, giving the States the opportunity to participate in the CIS bodies in the format, which is convenient in present moment, taking into account multi-level and multi-speed integration of the republics. The article presents statistics supporting the growth of economic links between the member States of the Commonwealth of Independent States since 2000 to the present, and the growth of the number of cases considered by the CIS Economic Court. The article also contains the statistical data which are indicating a significant increase in the number of applying to the Court for clarification of the Agreements concluded within the Commonwealth and affect their rights in the sphere of social and labor relations. The article gives not only insight into the history of the creation of the CIS Economic Court, but also identify the ways to improve its activities by expanding the subject matter of cases, increasing the number of entities eligible to appeal to Court, the vesting of such right a number of associations representing the interests of legal entities and citizens.

Keywords: Commonwealth of Independent States, CIS Economic Court, powers of the CIS Court, reorganization of the CIS Court.

DOI: 10.12737/article_598063fb9f1de6.15659500

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BREXIT FROM THE LEGAL POINT OF VIEW  Pdf 16

I. S. CHERNYSHOVA

lawyer
The United Kingdom, London
E-mail: Irina.ichernyshova@gmail.com

In June 2016 the referendum on the minimum majority of votes of British citizens supported a British exit from the European Union, from that moment began the formal process of so-called “Brexit” - a unique event in the political life of the EU and the UK. Apart the political aspect, Brexit also is a difficult challenge for legislators, academics and lawyers both in the EU and in the UK. Over the last forty years, the legislative system of the EU and the UK are closely intertwined and now constitute a single legal system. The notice of withdrawal from the EU has caused differences which led to the consideration of the functions and powers of the government in court. This article discusses how participants of the legal process of brexit (legislators, academics and lawyers) approach to solving this problem: background, development process, proposed legislation and the reaction to it from the professional legal community with the view of the political process and the preparations for the negotiations on the exit procedure and further cooperation. In the article, the procedure and consequences of the brexit are considered from the European and British points of view. The key legislative act defining the brexit consequences for the legal system in the UK will be the Bill on the Great Cancellation, which determines the order of separation of the British legal system from Europe. The article also includes a brief review of the brexit effects for individual areas of British law.

Keywords: brexit, Bill on the Great Cancellation, negotiations on braxit, Charter of Fundamental Rights, Treaty on Free Trade between Britain and the European Union.

DOI: 10.12737/article_598063fa209191.10169057

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SEX DISCRIMINATION IN THE AIRLINE INDUSTRY: TITLE VII FLYING HIGH  Pdf 16

D. BINDER

professor at the Chapman University
One University Drive, Orange, California 92866, USA

The publication is translation of paper by Denis Binder (professor of law, Chapman University), published in California Law Review in 1971. The article highlights the important legal issues related to gender discrimination in the workplace. The author analyzes the principle of bona fide professional qualification, its content, interpretation in law enforcement practice as the only legitimate exceptions established by the Civil Rights Act of 1964’s the prohibition of sex discrimination. The author analyzes a broad approach to the interpretation of the principle of bona fide occupational qualifications based on any common characteristics in general are related to gender and a narrow approach of assessing individuals based on individual qualities, not on the basis of common characteristics of the sex. The author substantiates the necessity of narrow interpretation of the principle of bona fide occupational qualifications. Also in the article was analyzed the reasoning by the courts the position of the employer when this employer conceders an additional factors such as presence of children or marital status and using of the developed approaches to disputes of the airlines with the stewardesses. In addition to the prohibition of marriage there also was the age limit for stewardesses, when many airlines were automatically dismissed them upon reaching 32-35 years without taking into account individual characteristics of women, while the age of retirement of male stewards was 65 years. According to the author the collective agreements can be very effective in resolving existing problems for stewardess restrictions, which, however, does not eliminate practices of discrimination completely. The author has argued the necessity of the case law development in order to force the airline to refuse sex discrimination at all stages of employment.

Keywords: gender discrimination, labor law.

DOI: 10.12737/article_598063fbb4a7c1.70131716

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ANALYTIC REVIEW OF THE OPINIONS ON MOLDOVA AND HUNGARY ADOPTED AT THE 111th PLENARY SESSION OF THE VENICE COMMISSION  Pdf 16

V. S. CHERENKOVA, Ya. I. LEBEDEVA

V. S. CHERENKOVA, junior 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: venkom@izak.ru

Ya. I. LEBEDEVA, specialist of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: lebedeva.ioanna@yandex.ru

This article is an analytic review of the most significant opinions adopted within the framework of the 111th Plenary Session of the European Commission for Democracy through Law (Venice Commission), which was held in Venice on 16-17 June 2017. The authors clarify the conclusions of the Venice Commission regarding the Proposal by the President of the Republic of Moldova to supplement the Constitution in order to enlarge powers of the President to dissolve Parliament, which may lead to a gradual change in the form of government from the parliamentary one to the mixed or presidential one. In particular, it was noted that the first form of government is traditionally considered preferable, but the Venice Commission believes that any form of government can meet democratic standards, if the law provides an effective system of checks and balances. The article also considers recommendations made by the Commission on the Draft law relating to the electoral system for the election of the Parliament. The authors highlighted similar legislative provisions in countries which are on transition stage after the collapse of the Soviet Union. Further the conclusions of the Commission on the Draft Law on the Transparency of Organisations Receiving Foreign Funds were analyzed. It is noted, that recommendations made by the experts of the Venice Commission are relevant not only within the legal systems of these countries, but also are important for understanding the legal changes taking place in our country.

Keywords: Venice Commission, rule of law, democracy, human rights, electoral system, referendum, constitutional changes, non-governmental organizations, financing, education.

DOI: 10.12737/article_598063fbc55c57.595010

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