Contents # 5/2017

REVIEW OF THE RUSSIAN-FRENCH SEMINAR “RESPONSIBILITY OF LEGAL ENTITIES IN COMPETITION LAW” DEDICATED TO THE MEMORY OF THE PROFESSOR OF THE UNIVERSITY OF PARIS 1 PANTEON-SORBONNA GERARD MARCOU  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

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LIABILITY OF LEGAL PERSONS FOR THE VIOLATION OF COMPETITION RULES: CRIMINAL PROSECUTION AND ALTERNATIVE METHODS OF CONFLICT REGULATION (COMPARATIVE EVALUATION)  Pdf 16

O. I. SEMYKINA

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

In the article there is an analysis of criminal and criminal prosecution mechanism of legal persons’ liability for the violation of competition rules in some post-Soviet countries (Azerbaijan, Georgia, Kyrgyzstan, Moldova, Estonia). With a glance to a comparative evaluation there are features of national approaches established to regulate criminal law and criminal procedural measures applicable to legal persons who have committed acts in the field contrary to honest practices in industrial or commercial matters covered by the criminal branch of law. Based on the latest trends in criminalization, the model of criminal liability of legal persons is identified that is known in the world’s practice. Among them there are marked identified model (on the example of Estonia and Kyrgyzstan) and extended identified (based on the legislative approaches of Azerbaijan, Georgia, Moldova) models of corporate criminal liability. There are accumulated findings about the specifics of criminal prosecution of legal persons who have committed socially dangerous acts in the sphere of competition, and the possibility of using alternative mechanisms for the settlement of criminal law disputes in the stage of criminal prosecution. The conclusion defined is about direct dependence of realization of alternative dispute resolution mechanisms on the approach of the legislator to the legal entity of the Institute of responsibility of legal persons in criminal law.

Keywords: liability of legal persons, criminal prosecution, crime, subject of crime, criminal law measures, conflict regulation, mediation, competition.

DOI: 10.12737/article_59bbac1b3c63e0.12528660

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ADMINISTRATIVE LIABILITY OF LEGAL ENTITIES FOR VIOLATION OF ANTITRUST LAW IN RUSSIA  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 article raises questions of legislative regulation of public relations in the sphere of counteracting unfair competition. The legislative toolkit that is used in Russia to regulate the responsibility for such acts is outlined. The main emphasis is on administrative responsibility. Particular current interest of these questions is also presented because the current Russian legislation on this issue is quite new. The purpose of this article is to study the antitrust legislation of Russia in terms of administrative responsibility. The features of legislative regulation in this sphere is identified. There is a comparison of administrative and criminal impact on persons violating the rules of fair competition, not only with regard to liability and prevention of such offenses, but also in relation to issues of compensation for harm caused by such offenses. The article also conducts a comparative analysis of the definitions and the degree of responsibility for various violations in this area. It compares administrative and criminal influence on persons who violated rules of fair competition not only in terms of liability, but also in the prevention of such offenses. The paper carries out the comparative analysis of the definitions and the responsibility for various violations in this sphere. For preparation of the article a set of general scientific and private scientific methods of cognition is used: the dialectical method, the method of analysis and synthesis, the logical method, the method of comparative law, sociological, historical, formal-logical and other scientific methods. The base is not only legislation, but also decisions of the High Courts. In the results of the research the author comes to a conclusion about the necessity to improve legislation in the sphere of counteracting unfair competition, in particular in the direction of introduction into the Russian legislation institute a criminal liability of legal entity, the development of the concept of the penetration into a corporate veil in public law, including also the purpose to create such conditions under which compensation for damage caused by actions that violate the antitrust laws is equally inescapable just like the punishment for similar offense.

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

DOI: 10.12737/article_59bbac1b72fdb4.32416156

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LIABILITY OF LEGAL ENTITIES IN CORPORATE LAW: ISSUES AND PERSPECTIVES  Pdf 16

O. A. TERNOVAYA

leading research fellow of the Department of civil legislation of foreign states 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: ternovaya16@yandex.ru

The article deals with the issues associated with the withdrawal from responsibility by founders of a legal entity. To solve this problem a legislator uses not only private but also public legal measures. The author explores the specific features of the emergence and perspectives of using the doctrine of lifting the corporate veil as an effective means of countering the abuse of law. The two main approaches to the application of the doctrine of lifting the corporate veil in foreign countries are investigated. If in Common law countries a compulsory condition for bringing a corporation member to responsibility is the fact of abuse of the right, in Civil law countries the major approach is the presumption of responsibility of the parent company for the obligations of the subsidiary. Based on the analysis of Russian jurisprudence and legislation the author concludes that the doctrine under consideration is not widespread in Russia which is why there is a need to improve Russian legislation on the liability of legal persons in corporate law. It is noted that there are issues which creditors face in the reorganization and bankruptcy of legal entities, as well as the liability of legal entities for violation of legislation that leads to forced reorganization. An interesting feature of French law is that the rules on criminal liability for corporate violations are contained not in the Criminal Code but in the Commercial Code. Comparative analysis of judicial practice, doctrines and various provisions of Russian and French legislations allows us to conclude that the discussion of the prospect of criminal liability of legal persons in Russian corporate law requires an integrated approach. It is proposed to conduct comparative studies of the experience of foreign countries in which criminal liability of legal entities for violations of corporate legislation has already been introduced. From this point of view, the French experience is particularly interesting.

Keywords: responsibility, legal persons, doctrine of “lifting the corporate veil”, criminal responsibility, administrative responsibility, French law, corporate law, corporate legislation, principle of autonomy of will, Criminal Code, Commercial Code, sanctions, fine, imprisonment.

DOI: 10.12737/article_59bbac1bc241e8.80316706

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ON THE QUESTION OF POSSIBILITY TO INTRODUCE IN RUSSIA A CRIMINAL LIABILITY AND CRIMINAL PUNISHMENTS OF LEGAL ENTITIES (COMPARATIVE ASPECT)  Pdf 16

V. Yu. ARTEMOV

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: vladislav.artemov@gmail.com

The article is devoted to a problem that causes a lot of controversy in a Russian scientific community at present: the possibility and expediency of introducing in Russia the institute of criminal liability of legal persons. The author underlines the problems of this issue. The main arguments of both supporters and opponents of criminal liability of legal persons are presented. Among the main arguments against - the question of personal guilt, which is a major problem and an obstacle to the introduction of this institute, the possibility of tightening the liability of legal persons in other branches of law, etc. Among the main supporting arguments of legal entities’ the criminal liability, referred to in this article, there are international obligations of the Russian Federation, greater efficiency of criminal sanctions, criminal record of legal persons, judicial optimization and others. Attention is also paid to the fact that since 2002 in the Russian Federation there has already existed administrative liability of legal persons, which was one of the major novelties of the Administrative Code, 2002. Russian administrative scholars have formulated the theoretical and practical bases of administrative liability of legal persons that can be used and the introduction of criminal liability of legal persons. In addition, attention is paid to the current debate in Russia on the possible introduction of the category of criminal offence and the possible merging of criminal liability and administrative liability in one single form of legal liability. In this connection it may be interesting to refer to the French experience, where are three categories of offences: crime, délit and contravention. At the end of the article the author points out the objective difficulties of the possible introduction into the domestic legal system the institute of legal persons’ criminal liability, which is caused by a number of reasons, first of all by the established principles of domestic criminal law doctrine.

Keywords: legal person, responsibility, crime, criminal law, criminal responsibility, administrative responsibility, criminal offence, guilt, treaty.

DOI: 10.12737/article_59bbac1c257ad6.33954225

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REVIEW OF THE XII INTERNATIONAL SCHOOL-WORKSHOP OF YOUNG LEGAL SCHOLARS “COMPOSITION OF LEGAL SPACE: DYNAMICS OF UPDATE”  Pdf 16

I. A. SHULYATIEV

THE ROLE OF JUDICIAL PRACTICE IN THE LEGAL SYSTEM: RUSSIAN EXPERIENCE IN THE WORLD CONTEXT  Pdf 16

V. V. MOMOTOV

secretary of the Plenum, judge of the Supreme Court of the Russian Federation, judge of the highest qualification class, doctor of legal sciences, professor
15, Povarskaya st., Moscow, Russia, 121260
E-mail: ssrf@ssrf.ru

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific-technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

Keywords: case law, sources of law, judicial precedent, the Plenum of the Supreme Court of the Russian Federation.

DOI: 10.12737/article_59bbac1c6741c2.52388894

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REVIEW OF AN ANNUAL CONFERENCE OF POSTGRADUATE STUDENTS AND YOUNG SCIENTISTS “INTERESTS IN THE LEGAL SPHERE: NATIONAL AND INTERNATIONAL DIMENSION”  Pdf 16

M. A. BOCHARNIKOVA

ON THE LEGAL RECOGNITION OF GENDER REASSIGNMENT  Pdf 16

M. L. SHELYUTTO

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

The sex of a person is assigned at birth. Later some people - intersex persons and transsexuals - experience the problems with a legal gender and seek to change the entry of birth, certificate of birth and other documents. This article has been written under the impulse from case S. (post surgery transsexual) which has been considered by Russian courts. Neither the registrar’s office nor courts allowed S. to make change in his entry of birth. As result he faces total discrimination on the grounds of gender identity. As it is known, applications of two transsexuals - No. 86501/12 (Y. P. v. Russia) and the Application No. 60796/16 (X. v. Russia) - were communicated to the Russian Government by the ECHR on 23 February 2017. This article explains the meaning of legal gender, reasons of its change, the procedure of amending the entry of birth in such case in Russia and shows that the registrar’s office and courts put forward unfounded arbitrary conditions due to gaps in legislation and ignore the right of a person to the legal recognition of his or her gender identity. International legal approaches to the realization of this right are highlighted with emphasis on the ECHR positions. The examples of contemporary foreign legislation on the gender recognition including the attitude to forced divorce and new approach to the entry of birth in case of birth of intersex child to prevent premature medical intervention contrary to the gender self-identification of such a child are given.

Keywords: change of gender, amending an entry of birth, discrimination on the grounds of gender identity.

DOI: 10.12737/article_59bbac1ab9b566.75071663

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TERRITORIAL STRUCTURE OF INDIA IN THE CONTEXT OF ETHNIC AND CULTURAL DIVERSITY  Pdf 16

A. N. MOCHALOV

associate professor at the Ural State Law University, candidate of legal sciences
21, Komsomolskaya st., Yekaterinburg, Russia, 620137
E-mail: artur.mochalov@usla.ru

In the article the constitutional arrangements of territorial structure of India are discussed in the context of ethnic, linguistic and religious fragmentation of Indian society. The author highlights the three main approaches to territorial structurization of a plural multiethnic state: federalism, territorial autonomy, and creation of territories with special constitutional regime and reveals the mechanism of each of them on the example of India. Pluralism in approaches to territorial organization of India is stipulated by complex and extremely mosaic ethnic and cultural structure of population of the state. Federalism is applied in India mainly for accommodation of concentrated linguistic groups. Now federalism is also applied for reducing militant separatism in the Indian North-East. At the same time, federalism aims at integration of different ethnic groups into a common political and legal space. Accommodation of a range of tribes in the North-East is achieved through territorial autonomy as well. But tribal peoples living in the central part of India don’t enjoy autonomy. The lands occupied by them have a special constitutional regime (so-called “scheduled territories”) instead. It is emphasized that the choice of a certain solution for an ethnic group is often “situational” and depends on a degree of separatism. From the author’s opinion sometimes territorial solutions are implemented as compromises between the Indian government and political leaders of ethnic separatist movements. Also the article briefly describes ethnic, linguistic, and religious diversity of Indian society and its territorial fragmentation. It contains examples connected with creation of Indian States such as Tamil Nadu, Punjab and Nagaland. The information and conclusions in the article rely on materials gathered by the author during the research trip to India in summer 2016.

Keywords: territorial structure of state, ethnic diversity, federalism, territorial autonomy, ethnic separatism, India.

DOI: 10.12737/article_59bbac1ca98527.96839626

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THEORETIC AND LEGAL COMPARATIVE RESEARCH OF THE LEGAL NATURE OF A CORPORATE CONTRACT ON THE LAW OF FRANCE AND THE USA  Pdf 16

O. A. TERNOVAYA, S. V. SOLOVIEVA

O. A. TERNOVAYA, leading research fellow of the Department of civil legislation of foreign states 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: ternovaya16@yandex.ru

S. V. SOLOVIEVA, leading research fellow of the Department of civil legislation of foreign states 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: foreign3@izak.ru

This article deals with theoretical and legal approaches and peculiarities of the regulation of corporate contract under the laws of France and USA. One of the factors that promoted the promulgation of the shareholders agreement was the participation of Anglo-American investors in French societies, which were more accustomed to contractual relations then to the use of rigidly fixed forms of joint-stock companies. Despite the fact that one of the aims of such agreements was an attempt to get rid of excessive public-right control, such contracts could never contradict the mandatory requirements of the law and the provisions of the company’s charter. In the United States legislative embodiment of the right of shareholders to enter into various types of agreements is carried out by laws regulating activities, the procedure of the establishment and management of Business Corporations. The content of a shareholders agreement and the right to participate in such agreement is regulated by the legal regime of corporation. The agreement between the members of close corporation de facto may change the provisions of corporation’s charter relating to corporate governance and profit sharing. All types of shareholders agreements, which could be concluded by the members of Business Corporation, are considered in the present article. State law that regulates contractual relations does not apply to shareholders agreements despite the legal doctrine view that corporations are of a contractual nature. The comparative analysis of the jurisprudence, legal doctrine and provisions of US and French legislation allows us to conclude that in the USA, unlike France, shareholders agreements are regulated by Corporate Law, not by the provisions of the Contract Law as it takes place in France.

Keywords: corporate contract, agreement of the members of joint-stock company, freedom of contract, right to vote, rights of the members of the corporation, disclosure of information, commercial register, comparative corporate law, confidential information, business corporation, limited liability company, obligation, civil contract.

DOI: 10.12737/article_59bbac1d058578.73209877

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REGISTRATION SYSTEM OF PROPERTY RIGHTS IN FRANCE (EXPERIENCE ANALYSIS)  Pdf 16

K. Ye. PUTRYA

lawyer, Law firm “Stepanov and Aksuk”
139/94, Tekuchev st., Rostov-on-Don, Russia, 344018
E-mail: kostya.putrya@gmail.com

The article deals with the questions of French law and the recent French judicial practice concerning the type of the registration system of property rights and the nature of the list of property rights. The author briefly reveals the basic essence of the two main types of registration systems of property rights in Europe - the French model and the German model. The author considers the idea of creating in France the new property rights by the efforts of law enforcers and the will of turnover participants and without stipulation of these new rights in the law. Then the author analyzes the arguments of the supporters of open and closed list (numerus clausus) of limited property rights. The author comes to the conclusion that sequential withdrawal of the French law from the principle of numerus clausus. On the basis of the one of judicial decisions of the Cassation Court, which became a continuation of the concept of property right reform, laid down and formed in France in 2007, the author shows that the French law prefers the open list of limited property rights or the transitional mixed nature of the list of limited property rights, which can recognize the new limited property rights created by the entities, and limited property rights already enshrined in law. The author shows and proves, using the example of French and German law that the registration system of property rights based on the “principle of inclusion”, and the registration system of property rights based on transcription-inscriptional approach can affect the nature of the list of property rights - it can be open or closed.

Keywords: limited property rights, numerus clausus principle, property right of special use, reform of property law in France.

DOI: 10.12737/article_59bbac1d4a9ee7.41234515

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LEGAL REGULATION OF NON-TRADITIONAL FAMILY UNIONS IN THE UNITED STATES  Pdf 16

A. S. NAZAROVA

postgraduate 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: Ann-pankratova@yandex.ru

This article is devoted to analysis of legal regulation of non-traditional family unions in the United States. The purpose of the study is stipulated by the tendency to increase the number of non-traditional family unions which exists in many foreign countries. In this work the reasons of emergence of non-traditional family formations are studied. The author examines legal regulation of de facto marital unions (cohabitations), registered partnerships, same-sex marriages by the legislation of the States of the USA. In result of the conducted research the author came to the conclusion that legal recognition of non-traditional family units in the United States is explained by the needs of the family with the changed structure that will allow to adapt to a variety of new economic and social conditions. At the same time the author believes that the recognition of same-sex marriage is inadvisable because same-sex unions cannot fulfill the main function of family - reproduction (biological appearance of a person), since the main objective of any species is the preservation of the life of this species. Moreover, children brought up by same-sex parents usually follow the example of their parents. In families based on actual marital relations of men and women a reproductive function is fulfilled as it appears from demographic research.

Keywords: illegitimate union, heterosexual marriage, civil union, household partnership, non-traditional family unions, samesex marriages, reproductive function, cohabitation outside of marriage, traditional family, de facto marital unions.

DOI: 10.12737/article_59bbac1d8e1769.56770759

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RIGHTS OF INHERITANCE OF HEIRS OF BENEFICIARIES OF OFFSHORE COMPANIES AND TRUSTS  Pdf 16

V. A. KANASHEVSKY

professor at the Department of private international law of the Kutafin Moscow State Law University, doctor of legal sciences, professor
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: vladimir@kanashevsky.ru

The author researches the issues of rights of inheritance of heirs of beneficiaries of offshore companies and trusts in respect of property (assets) of the latter. These issues are of current interest in the light of using the services of nominee’s shareholders and directors of offshore companies which is widespread among Russian businessmen. Particular attention is paid to recognition of legal consequences of offshore testamentary trusts in civil law countries. These issues are also actual ones in the light of Russian laws on foreign controlled companies (CFC), which do not qualify irrevocable and discretionary trusts as CFC, and consequently such trusts are quite popular in Russia. One of the disadvantages of using the services of nominal shareholders by the beneficiary of offshore company is the unresolved rights of inheritance’s issues in case of beneficiary’s death. Consequently the Russian individuals who use the services of nominee shareholders in the offshore companies should protect their inheritance rights in case of unforeseen circumstances (e.g. death). Similarly in case of death of the trust beneficiary the fate of property transferred to the trust depends on the content of trust agreement, as well as of the trustee’s authorities. Therefore the fate of a trust and its assets in the event of beneficiary’s death should be determined in a trust agreement. The potential beneficiaries (in particular, the desirable heirs) should be familiar with the relevant trust documents. The author illustrates his reasoning by reference to legislation and case law of Russia and foreign countries. The author inter alia analyzes the issues of recognition of trusts created abroad, including under the Hague Convention on the Law Applicable to Trusts and on their Recognition of 1985.

Keywords: trust, discretionary trust, testamentary trust, settlor, beneficiary, trustee, bare trustee, trust deed, trust contract, equity, offshore jurisdictions, offshore company, nominee services, nominee shareholder, nominee director, inheritance rights, compulsory portion, testator, heirs, will, applicable law, mandatory rules, default provisions, legal title holder, beneficiary owner’s rights, controlled foreign companies.

DOI: 10.12737/article_59bbac1edbd3d6.94766501

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COMPENSATION FOR HARM CAUSED BY THE DEFECTS IN GOODS (WORK OR SERVICES) IN FOREIGN PRIVATE INTERNATIONAL LAW LEGISLATION  Pdf 16

T. P. LAZAREVA

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

The article deals with the conflict of laws regulation of compensation for damage caused by a product (works or services) in private international law legislation of different countries. The specificities of legal regulation of such relations are determined by the necessity of supporting the balance of parties’ interests, protection of persons and legal bodies (“weaker party”), damaged by the defects of products (works or services), and stimulation of quality workmanship of producers and sellers of products, works and services. Formulation of special conflict-of-law norms in modern codifying acts in this area of regulation is explained by the specifics of such relations, which are become more multivarious, requiring the differentiated approach. The place of producing the product (execution of work, provision of services) in such relations can be not coincide with the place of ensuing of harmful consequences, caused by a product of defective quality. It is noted that the effect of the basic principle (lex loci delicti) for non-contractual obligations in the field of products liability (works, services) is limited by the establishment of special forms of attachment and escape clauses. On the basis of comparison of the legislation of certain countries, as well as Article 5 “Product liability” of the Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) tendencies of conflicts regulation in this area are identified, based on the “cascade” system of norms which allows to take into account various cases of causing of harm. It was concluded that, despite some differences, generally there is a trend towards harmonization of regulation of the relations concerned in the legislation of various countries.

Keywords: conflict of laws regulation, compensation for harm, defects in goods, work or services, domicile of party which caused the damage, domicile of party sustaining the damage, the law of the country in which the product was acquired.

DOI: 10.12737/article_59bbac1f2fed27.27697960

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LEGAL REGULATION OF LEAVES IN THE REPUBLIC OF KAZAKHSTAN AND THE RUSSIAN FEDERATION: A COMPARATIVE ANALYSIS  Pdf 16

Ye. Ye. KHOZEROVA

postgraduate 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: khozerova87@gmail.com

Under the conditions of created integration of the EAEU and the Trade Union there exists an objective necessity for harmonization of the member states’ legislation of the said organizations. A comparative analysis of these states’ legislation became the most popular for the purposes of formation of a unified legal system, including the sphere of labor and labor relations. In this connection the question of labor relations and in particular the legal regulation of labor and rest became especially relevant. In accordance with Article 24 of the Universal declaration of human rights (1948) the right to periodic holidays with pay is granted to everyone. This right is a constitutional right of all EAEU member states (the Republics of Armenia, Belarus, Kazakhstan, the Russian Federation, the Kyrgyz Republic), in terms of which the free movement of goods, services, capital and manpower is ensured. Given that as part of the implementation of the Plan of Nation - 100 concrete steps for realization of five institutional reforms the Republic of Kazakhstan adopted a new Labor code, whose provisions are intended for liberalization of labor legislation, which is in terms of the implementation of economic reforms also is proposed in Russia, a comparative analysis of these countries’ labor legislation, including the question of leaves, appears to be very relevant. The system of leaves in the Republic of Kazakhstan and the Russian Federation is similar in many ways, although there are certain procedural differences. A comparative analysis of the leave regulations in these states would help find out and take into account both positive and negative experience, which at the end of the day will foster the development of national legislation and the formation of a unified legal system.

Keywords: annual leave, types of leave, labor leave.

DOI: 10.12737/article_59bbac1f983c27.68683674

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PUBLIC PROCUREMENT IN TERMS OF THE EURASIAN ECONOMIC UNION  Pdf 16

P. P. KABYTOV

junior research fellow of the Department of administrative legislation and procedure of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: kapavel.v@yandex.ru

The realization of the goals of the Eurasian economic Union is closely connected with the formation of common markets in various areas of economic cooperation. One of these areas are public procurement, which can have a significant impact on mutual trade between the member States in the framework of the functioning of the internal market of the Eurasian economic Union. To date, however, this effect is not significant. Prerequisites for this are the numerous “barriers”, “withdrawal” and “restrictions” that remain in the legislation of member States of the Eurasian economic Union, which requires its identify and resolve. The purpose of this study was to identify obstacles to the formation of a single public procurement market in the Eurasian economic Union. The objective of the study is the analysis of legal regulation of public procurement in member States of the Eurasian economic Union and the Eurasian economic Union with the aim of identifying the existing “barriers”, “withdrawal” and “limitations” in this field. To achieve the goals and objectives of the study are applied comparative legal, formal legal and formal logical methods, method of interpretation of law, as well as scientific methods. The results of the study identified obstacles to providing a high level of cross-border participation in public procurement. Revealed that the provision of unhindered access for potential suppliers and providers of member States to participate in public procurement is in direct proportion to ensure the regime of the single market for services in various service sectors. It is concluded that a necessary condition for the formation of a single market of public procurement is not only elimination of the existing “barriers”, “exceptions” and “limits” in the laws of the member States of the Eurasian economic Union, but also the completion of the process of building a single market for services, the further rapprochement of licensing systems, harmonization of mandatory rules and requirements in the member States of the Eurasian economic Union.

Keywords: state (municipal) procurement, the Eurasian economic Union, a single market of public procurement, barriers, exemptions, restrictions.

DOI: 10.12737/article_59bbac1ad7efa4.22697905

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TOP TEN FEATURES OF THE EVIDENCE INSTITUTE IN SWISS CRIMINAL PROCESS: A COMPARATIVE STUDY  Pdf 16

A. A. TREFILOV

senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: trefilovaa1989@gmail.com

The author considers the ten most important features of the evidence Institute in the Swiss criminal procedure. For the realization on the mentioned task the author analyzes the Code of Criminal Procedure and the doctrine of Switzerland: the rules concerning the evidence are the part of the criminal procedural law subject (the autonomous evidence law is not pointed neither doctrinal nor at the legislative level): as a subjects of the evidence can be recognised only the competent state authorities (the defender does not proof), the burden of evidence is a duty only of the the prosecution (there are no exceptions to this rule), the list of evidence is not exhaustive (the competent authorities shall take into account any significant procedural information, except the information which can not be seen as a proof by law) the freedom of evaluation of evidence without exception, normative consolidation of the theory of “the fruit of the poisoned tree” (if admissible evidence derived from the invalid, it also becomes invalid), the non-recognition of the theory of asymmetrie (the defense’s evidence and prosecution’s evidence are equal); the evidence check is not seen as a separate element of evidence (only the gathering and verification of evidence are pointed separately). The author also makes a comparison between the Swiss and Russian experience in solving a range of problems concerning the evidence. It is shown that the Swiss experience may be useful in further reforming of the evidence institute in Russian criminal proceedings with the aim of increasing its effectiveness. There are some proposals to improve the existing Russian legislation in this article. Among them, not exhaustive list of evidence in criminal proceedings and regulatory basis for the theory of “the fruit of the poisoned tree”, which are existing in Switzerland and in most countries around the world, deserve attention of the domestic legislator.

Keywords: evidence, evidence law, theory of “the fruit of the poisoned tree”, code of criminal procedure, Switzerland.

DOI: 10.12737/article_59bbac1b0b09a8.92752330

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STRATEGIC TRANSFORMATION OF THE ANTI-CORRUPTION LEGISLATION IN CHINA  Pdf 16

Hongyan LIU

professor at the Institute of Law of the Chinese Academy of Social Sciences, doctor of legal sciences
15, Shatan Beije, Beijing, P. R. China, 100720
E-mail: liuhongyan1976@163.com

Currently China is at the most important since the beginning of the modernization transformation of turning point, and there are a lot of opportunities in anti-corruption. Now China holds a strategic transformation of the state anti-corruption legislation; carries out a scientific assessment of the possibilities of anti-corruption legislation, creates the concept of active fight against corruption. The main feature of this concept is the control over the exercise of power; and it has to occupy the main place in the state system of counteraction of corruption. The dualistic regulatory system and the mechanism of interaction of state law and party rules are creating now in the country, and soon the fundamental law on anti-corruption will be adopted. Also, the existing system is improving step by step - from the formal to the real anti-corruption as the primary function of the anti-corruption legislation in order to overcome the modern crisis of corruption with Chinese characteristics. Anti-corruption in China is currently at the stage of “the fight against еру traits and the optional fight against the reasons», the concept of anti-corruption with focus on prevention is promoting, the dualistic anti-corruption regulatory system within the state laws and intraparty rules has already created. The Chinese legislator is trying to use all the opportunities in various sectors of the legislation on anti-corruption. The legislation in terms of “do not take a trick” is actively improving, the legislation in terms of “not being able to take” is modernizing, the legislation in the terms of “unwell to take” is improving, the program and the plan on scientific development of the legislation is on the stage of adoption.

Keywords: anti-corruption, strategic transformation, legislative model.

DOI: 10.12737/article_59bbac202b31d8.53700151

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ANTI-CORRUPTION IN POLICE BODIES OF THE RUSSIAN FEDERATION AND THE FEDERAL REPUBLIC OF GERMANY  Pdf 16

D. A. PECHEGIN, E. N. PROKHOROVA

D. A. PECHEGIN, 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: pechegindenis@rambler.ru

E. N. PROKHOROVA, lecturer at the Department of general legal disciplines of the Kaliningrad Branch of the St. Petersburg University of the Ministry of Internal Affairs of Russia, candidate of legal sciences
30, General Galitsky st., Kaliningrad, Russia, 236006
E-mail: tyurina39@mail.ru

The police as a law enforcement body of a specific state was created to perform a variety of tasks in order to maintain the law and order in society, to ensure the security of the state, its citizens. In accordance with the role of the police in the legal doctrine of different countries (Germany, France, England, etc.), in due time, there were even separate schools to study this institution. The police are also one of the subjects of anti-corruption. Nevertheless, this does not mean that corruption cannot exist in the ranks of the police. Despite the general increase in confidence in the police and their employees, noted by the All-Russia centre of studying of public opinion over the last few years in the Russian Federation, today the efforts to combat corruption need to be undertaken not only outside, but also within the police departments themselves. It is obvious that corrupt law enforcement bodies are not able to perform effectively and qualitatively their tasks, and this fast poses a real threat to the state, society and the individual. Thus, the task of improving the complex of anti-corruption measures in the police bodies is becoming more urgent. The article presents a comparative legal analysis of anti-corruption in the police bodies of Russia and Germany in modern conditions. The measures of influence are defined, as well as the forms of interaction of law enforcement agencies in the fight against this negative social phenomenon. The authors come to conclusion that the effective system of anti-corruption in police facilitates not only by the system of legislative sanctions adopted in the state, but also by the qualitative implementation of the state’s social policy with regard to civil servants.

Keywords: anti-corruption, internal affairs bodies, sanctions applied to a police officer, police, Russia, Germany.

DOI: 10.12737/article_59bbac20f34436.89538538

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GOVERNANCE IMPROVING IN THE SPHERE OF NATURE MANAGEMENT AND ENVIRONMENTAL PROTECTION (EVIDENCE FROM UZBEKISTAN)  Pdf 16

N. K. SKRIPNIKOV

associate professor at the Tashkent State University of Law, candidate of legal sciences
35, Sayilgokh st., Tashkent, Uzbekistan, 100047
E-mail: skrnikolay@mail.ru

There is a classification of management functions in the sphere of nature management and environmental protection based on the analysis of normative-legal acts of the Republic of Uzbekistan in the present paper. Also the article provides the improving features of management in this sphere in accordance with the Strategy for the further development of the Republic of Uzbekistan for the period 2017-2021. At the end the author makes some conclusions, which are necessary for achievement the improvement in environmental management and environmental protection. In the author’s opinion, the improving of management in the sphere of nature and environmental protection depends largely on: a) the existence of a state strategy on nature management and environmental protection for a specified period (e.g. 5 years) and for the long term, and its budget; b) the classification of management functions, which are scientifically based and proven in practice. The quality and efficiency of management depends on complete and comprehensive classification of the management functions; c) each individual type of management has to be fixed in normative - legal acts. To date, the most regulated form of management in the sphere of nature management and environmental protection is a state management; d) the presence of a perfect system of management bodies in the sphere of nature and environmental protection. Currently in Uzbekistan makes a lot in this direction; e) active participation in the management of public organizations and citizens. In Uzbekistan a significant role in environmental management and environmental protection plays an “Ecological movement of Uzbekistan”; f) the full and effective mechanism of each legal act, providing management.

Keywords: management, environmental management, environmental protection, strategy, functions, analysis of normativelegal acts, environmental monitoring, control, examination.

DOI: 10.12737/article_59bbac21544af8.72861492

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LEGAL REGULATION OF FISHERY IN RUSSIA AND FOREIGN STATES: COMMON AND SPECIAL FEATURES  Pdf 16

D. O. SIVAKOV

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: dmitrius1978@yandex.ru

The aim of the article is a comparative analyze of legal regulation of fishery in Russia and foreign states. According to this goal, the task of comparison of fishery legislation of Russia and other CIS countries, Russia and EU State as well as North American countries arises. The author tries to solve one more issue - to consider how current legal regulation correlates with the concept of fishery in Russia. Legislation in the sphere of fishery is developing dynamically. Despite the different time of appearance and the differences of legal systems, mentioned legislation can be compared in the basic directions of legal regulation. The article applied the method of comparative legal regulation, the historical method of extrapolating. Also the scientific methods of deduction and induction are applied. The author used the instruments of international soft law and the works of specialists in the mentioned area of the legal regulation. The article consists of following sections: statement of the question; sources of law; key rules-definitions; principles and key provisions of the legislation; the quota system of catches, licensing and contractual methods of regulation; the payment principle and the nature of the distribution of funds received. In conclusion the author emphasized the approximation of the legislation of Russia and other CIS countries in the field of fisheries (concerning the concepts, basic provisions, types of fishery and quotas). Also, there are some similarities in a combination of licensing and contractual methods of regulation in Russian and Canadian legislation.

Keywords: water biological resources, living marine resources, principles of legislation, fundamental provisions of the legislation, novel legislation, fisheries, quota system, fishing quotas for investment purposes, contractual methods of regulation, licensing methods of regulating corruption, civil-legal relations.

DOI: 10.12737/article_59bbac21afe586.37871733

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FORMATION OF A LEGAL FRAMEWORK FOR ORGANIC AQUACULTURE IN THE COUNTRIES OF THE EURASIAN ECONOMIC UNION  Pdf 16

G. P. SHALYAPIN

head of the Department of organizational and legal support of the Association “Rosrybkhoz”, candidate of legal sciences
18a, Ermolaevsky lane, Moscow, Russia, 123001
E-mail: griha71@mail.ru

At present, the countries of the Eurasian Economic Union (EAEU) working hard in the law-making process by creating a system of regulatory legal acts on production and turnover of organic agricultural products. This activity is realizing at the level of national and international legislation. The problem of creating a unified legal and economic space in this area is very important for the entire agricultural sector including representatives of commercial aquaculture, who are particularly interested in the legal grounds for the management of organic fish farming in the framework of international cooperation, as declared in the draft concept of aquaculture development in EAEU States. In the nearest time this document will be adopt by the Eurasian Intergovernmental Council. But there is no enough legislation on organic production of Russia, Belarus and Kyrgyzstan. Analysis of national legislation demonstrates that similar laws were adopted in Armenia and Kazakhstan, but the effectiveness of their actions on commodity fish farming in doubt. Russian and Belarusian legislation in this field also require review and refinement. Applying the logical-legal and comparative legal methods of research we were able to identify the specific gaps of the relevant laws and legislation of these countries. At the end the author makes a conclusion that in the current period the most disoriented from the point of view of legal regulation of organic production are the fish farms of Russia, Belarus and Kyrgyzstan. These identified problems create non-competitive conditions in the field of production and turnover of organic fish products. So, in order to solve these problems the author gives some suggestions for improvement of draft laws and existing legislation in this field.

Keywords: Law on organic production, draft law, agriculture, aquaculture, fish farming, fish farms, EAEU countries.

DOI: 10.12737/article_59bbac221a2ef6.82561973

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REVIEW OF THE COLLECTIVE MONOGRAPH “CONSTITUTIONAL CONTROL IN FOREIGN COUNTRIES" (ed. by E. Ya. Pavlova, E. A. Kremyanskaya. Moscow: MGIMO-University, 2015. 341 p.)  Pdf 16

N. M. KOLOSOVA

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